Author Archive | Steve Statsinger

Here is the latest installment of the Blog’s round-up of summary orders of interest. In United States v. Fernandez-Quesada, No. 06-4446-cr (2d Cir. January 4, 2008), the court dismissed a sentencing appeal as moot because the defendant had been released, even though he had a “potentially valid claim” that his sentence was based on an unlawful upward departure. In United States v. Collazo, No. 06-5236-cr (2d Cir. January 3, 2008), a government appeal, the court found the sentence to be procedurally unreasonable where the district court declined to include an aggravating role enhancement in the Guidelines calculations, but did not give adequate reasons. United States v. Johnson, No. 06-4001-cr (January 3, 2008) and United States v. Stewart, No. 06-3411-cr (December 21, 2007), are the court’s first two cases to incorporate Gall and Kimbrough; each contains a cryptic order expressing “no view on the reasonableness vel non” of the sentence imposed, …

Welcome to yet another installment of the blog’s roundup of summary orders of interest.

In Mickens v. United States, No. 06-0140-pr (2d Cir. December 19, 2007), the court held that defense counsel’s failure to communicate a plea offer to his client was unreasonable, satisfying the first prong of the Strickland ineffectiveness test, although second prong was not satisfied because there was no credible evidence that the defendant would have accepted the offer. In United States v. Turner, No. 06-0967-cr (2d Cir. December 17, 2007), the court remanded for resentencing where the government breached the plea agreement in four different ways; the court ordered that the case be sent back to a different judge, which it always does when the government has breached a plea agreement. In United States v. Miley, No. 06-1105-cr (2d Cir. December 13, 2007), the court affirmed an above-Guideline sentence of 48 months’ imprisonment (the range was …

Welcome to the Blog’s periodic roundup of summary orders of interest.

In United States v. Rodriguez, No. 06-1681 (November 29, 2007), the court vacated a restitution order for further factfinding in a case involving the filing of fraudulent tax returns.

In United States v. Perez, No. 06-1040 (2d Cir. November 27, 2007), the court, yet again, bounced an Anders brief. Here it ordered counsel to file a supplemental brief that either (1) addressed the court’s Guidelines findings and calculations and the reasonableness of the sentence, or (2) explained why a discussion of reasonableness was unnecessary. If the brief really lacked all of these things, one wonders what it actually said!…

United States v. Ganim, No. 03-1448-cr (2d Cir. December 4, 2007) (Jacobs, Sotomayor, Wesley, CJJ)

Until his downfall, Joe Ganim was the mayor of Bridgeport, Connecticut. In 2003, he was convicted of racketeering, bribery and other offenses arising out of a bribery and kickback scheme. In essence, he had a fee-splitting arrangement with public relations and engineering firms to which he would steer city business in exchange for “cash, meals, fitness equipment, designer clothing, wine, [and] jewelry.” At trial, he acknowledged receiving these “gifts,” but asserted that they represented tokens of friendship and legitimate lobbying activity. The jury felt otherwise, however, and Ganim ultimately received a 108-month sentence.

On appeal, he took issue with the district court’s jury instructions with respect to the various bribery-related crimes of which he was convicted: bribery, bribe receiving, extortion in violation of the Hobbs Act, and “honest services” mail fraud. His claim was that …

United States v. Richter, No. 06-1930-cr (2d Cir. December 4, 2007) (per curiam)

Richter was sentenced in 1992 and did not appeal. In 2006, he petitioned pro se for a writ of audita querela to make a collateral Booker challenge to his sentence. The court rejected the claim, because Booker does not apply retroactively on collateral review.

This opinion is interesting, however, because the court identifies a situation when this obscure writ would lie. Most past cases have noted only the writ is “probably available,” or “might be deemed available,” or “might be available” in certain circumstances. Here, the court makes clear, without apparent qualification, that the writ would lie “if the absence of any avenue of collateral attack would raise serious constitutional questions about the laws limiting those avenues.” Now we know.…