Author Archive | Yuanchung Lee

United States v. Walker, Docket No. 05-3851-cr (2d Cir. March 30, 2006) (Straub, Sack, Trager (by desig’n)) (per curiam): Not much to this opinion, which holds that a conviction in New York State for attempted assault in the second degree, in violation of N.Y. Penal Law §§ 110/120.05(2), qualifies as a conviction for a “violent felony” within the meaning of 18 U.S.C. § 924(e)(1) & (e)(2)(B), and thus can serve as one of the three required predicates triggering the 15-year minimum under the ACCA. The statutory language seems to fit, Op. 3-4, [but see “Comments” below] and Congress can enact dumb laws if it so wishes.

The Circuit also quickly rejects Walker’s argument that his conviction should not be counted as an ACCA predicate because New York’s own definition of “violent felony” (for purposes of its sentencing laws) does not include attempted assault-2d: “Congress chose to …

United States v. Rasheim Carlton, Docket No. 05-0974-cr (2d Cir. March 24, 2006) (Cardamone, Cabranes, Pooler): This opinion principally rejects an Apprendi and Blakely based Sixth Amendment challenge to the district court’s decision to revoke Carlton’s supervised release and resentence him to 25 months’ imprisonment based solely on the court’s own fact-finding, on a preponderance standard, that he committed a new crime. The outcome is hardly unexpected — the Circuit has repeatedly refused to apply the Sixth Amendment implications of Apprendi, Blakely, and Booker to revocation proceedings in recent decisions. E.g., United States v. McNeil, 415 F.3d 273 (2d Cir. 2005).

The opinion is of interest only because it goes beyond citing precedent and attempts to offer a rationale for why the jury trial and beyond-a-reasonable-doubt protections do not apply at revocation proceedings. Indeed, the Circuit acknowledged that “some tension exists between § …

Campusano v. United States, Docket No. 04-5134-pr (2d Cir. March 23, 2006) (Pooler, Sotomayor, Korman (by desig’n)): A fine opinion that reaches the right result and contains enough praise of the importance of a criminal defendant’s right to appeal to warm the heart of even the most jaded appellate counsel. The issue is simply whether an attorney is required to file a notice of appeal when requested by the client, even though the client entered into a plea agreement containing an appeal waiver provision that seemingly bars an appeal. Relying on the Supreme Court’s decision in Roe v. Flores-Ortega, 528 U.S. 470 (2000), the Circuit held that, yes, a lawyer is indeed required to file a notice of appeal under such circumstances, and that it is per se ineffective assistance not to do so. The proper procedure is to file the notice of appeal and then — …

United States v. Roberts, Docket No. 04-6610-cr (2d Cir. March 23, 2006) (Sotomayor, Raggi, Cedarbaum (by desig’n)) (per curiam): This is an odd one: The Circuit affirms a sentence that included an enhancement under U.S.S.G. § 2K2.1(a)(5), calling for an enhanced base offense level of 18 when the offense “involved a firearm described in 26 U.S.C. § 5845(a) or 18 U.S.C. § 921(a)(30),” because Roberts’s firearm (a Tech 9 pistol) qualified as a “semiautomatic assault weapon” under § 921(a)(30) — even though § 921(a)(30) had been repealed by the time of Roberts’s sentencing. The Court upheld the sentence by reading the Guideline literally, and after noting that it was “aware of no authority that prevents Congress, or the Sentencing Commission acting under congressional authority, from incorporating by reference any definition they choose in the Sentencing Guidelines, whether or not that definition is contained in a currently operative provision of …

United States v. Paul Williams, Docket No. 05-0458-cr (2d Cir. March 22, 2006) (Kearse, Miner, Hall): This interesting opinion affirms a judgment revoking Williams’s supervised release and imprisoning him for three years (the statutory maximum). The district court found that Williams violated supervised release by committing a new crime — i.e., by shooting and then robbing one Ryan. The principal issue on appeal concerned whether the court erred in basing this finding upon hearsay evidence, since no eyewitness testified at the revocation hearing. The hearsay evidence consisted of testimony by an NYPD detective and by the probation officer, as well as a sworn complaint by Ryan, regarding conversations with Ryan in which Ryan identified Williams, on at least three separate occasions, as his assailant. Ryan also made several out-of-court statements denying that Williams was his attacker, however, and refused to testify against him.

The Circuit upheld …

United States v. Skelly and Gross, Docket No. 05-4261-cr (L) (2d Cir. March 21, 2006) (Newman, Katzmann, Rakoff (by desig’n)): A rather rambling opinion by one SDNY judge affirming a judgment of conviction rendered by another SDNY judge following a jury trial convicting the two defendants of various counts of securities fraud. The Government’s primary theory at trial was that Skelly and Gross, the principals of Walsh Manning Securities (a registered broker / dealer), engaged in a pump-and-dump scheme wherein they (and the registered reps they employed) “used manipulative techniques to artificially inflate the price of certain thinly-traded securities in which they held a substantial interest, and then used fraudulent and high-pressure tactics to unload the (largely worthless) securities on unsuspecting customers.” Op. 2. This theory was, we are told, “amply supported by the evidence.” Id.

Employing the “kitchen sink” mode of litigation so in favor at One St. …

United States v. Frank Quattrone, Docket No. 04-5007 (2d Cir. March 20, 2006) (Wesley, Hall, Scullin (by designation)): We have not yet had time to read the decision and will do a full summary later. Even a quick look, though, confirms a big (though not total) victory for the defense: The Circuit (1) vacates Quattrone’s conviction because of errors in the district court’s charge to the jury (the charge failed to tell the jury that it had to determine that Quattrone knew that the documents he was asking to be destroyed were the same ones sought by the Government, thus “remov[ing] the defendant’s specific knowledge of the investigatory proceedings and the subpoenas / document requests from the obstruction equation” and “leaving a bare-bones strict liability case”) ; (2) rejects Quattrone’s claim that the evidence was insufficient to sustain the verdict; and (3) remands the case to a …

Jackson v. Attorney General, Docket No. 05-2766-pr (2d Cir. Feb. 8, 2006) (Walker, Winter, Jacobs): This short habeas-related decision was rendered on February 8, 2006, but not posted on the Circuit’s website until March 10th. No harm — the Court simply holds that a Certificate of Appealability (“COA”) is required to appeal a district court’s denial of a Rule 59(e) motion (seeking to alter or amend a judgment) when the underlying judgment is one that denies or dismisses a § 2254 petition. The Court relied largely on its earlier decision in Kellogg v. Strack, 269 F.3d 100, 103 (2d Cir. 2001), which held that a COA is required to appeal from the denial of a Rule 60(b) motion (seeking relief from a judgment) when the underlying judgment is a denial or dismissal of a habeas petition.…

United States v. Philip Giordano, Docket No. 03-1394 (2d Cir. March 3, 2006) (Jacobs, Sotomayor, Hall): Giordano is the former mayor of Waterbury, Connecticut. He was convicted by a jury of (1) two counts of 18 U.S.C. § 242 (violating someone’s civil rights “under color of [] law”) (the “civil rights counts”); (2) fourteen counts of 18 U.S.C. § 2425 (using a “facility of interstate commerce” to transmit the name or other identifying information of a person under age 16, with the intent to entice or solicit the person to engage in sexual activity) (the “phone counts”); and (3) one § 371 conspiracy count involving the § 2425 violations. On appeal, he raised numerous arguments, three of which are discussed by the Court in this published decision (the remaining arguments are discussed — and rejected — in an unpublished summary order): (1st) that the § 2425 convictions must …

United States v. Fairclough, Docket No. 05-2799-cr (2d Cir. Feb. 17, 2006) (Jacobs, Leval, Straub) (per curiam): The Circuit holds in this short opinion that (1) there is no Ex Post Facto problem when the Booker remedy (i.e., the advisory Guidelines regime) is used to sentence a defendant who committed his offense before Booker was decided in January 2005; and (2) a 48-month non-Guidelines sentence, more than twice the midpoint of the applicable range (21 to 27 months), was reasonable in light of the recidivism (Fairclough “had a relatively uninterrupted string of criminal activity and arrests” from 1998 to 2002) and “seriousness of the offense” concerns (Fairclough did not merely possess a gun, but sold it to an undercover believing that the buyer “was about to do bad with it”) cited by the district court to justify the sentence. No new legal ground is broken on either …

U.S. District Court for the Western District of New York v. Darnyl Parker, Docket No. 04-5175-cr (2d Cir. Feb. 21, 2006) (Walker, Wesley, Hall): In a lengthy opinion touching on rarely encountered issues, the Court concludes that (1) the district court did not err in denying the defendant’s mid-case request that his retained counsel be appointed under the Criminal Justice Act, 18 U.S.C. § 3006A(c), based on a finding that the defendant was not financially unable to pay for counsel; and that (2) the W.D.N.Y.’s practice of inquiring of retained counsel at an early stage of the proceedings whether s/he is “fully retained” (rather than retained only for limited purposes) does not violate § 3006A(c)’s explicit allowance for mid-case appointment of assigned counsel. See18 U.S.C. § 3006A(c) (“If at any stage of the proceedings, . . . the court finds that the person is financially unable …