Yuanchung Lee In United States v. Boykin, Docket Nos. 14-851-cr & 14-1033-cr, the Court (Walker, Calabresi, Hall) in a per curiam opinion rejected defendant Simmons’s argument that under Allyne v. United States, 133 S. Ct. 2151 (2013), the fact of whether he had a “second or subsequent” conviction under 18 U.S.C. § 924(c) (for using or carrying … Read more
Only one summary order from the Circuit today in the criminal realm: In United States v. Jeremy Viles, Docket No. 15-885-cr, the Court (Livingston, Carney, Stanceu), rejected the defendant’s claim that he should be allowed to withdraw his guilty plea based on then-counsel’s allegedly erroneous advice regarding the advisory Guidelines range he would face at … Read more
In United States v. Danielle Faux, Docket No. 15-1282-cr, the Circuit (Jacobs, Hall, Restani), in an opinion by Judge Jacobs, reversed on the Government’s interlocutory appeal the district court’s grant of defendant Faux’s suppression motion, based on the claim that she was “in custody” when law enforcement agents questioned her (without providing Miranda warnings) while … Read more
Pre-2009 Bank Fraud Convictions Vacated Where Evidence Showed Only that Defendant Intended to Defraud a Non-Federally Insured Mortgage Lender In United States v. Michael Bouchard, Docket No. 14-4156-cr, the Circuit (Parker, Lynch, Lohier) in an opinion by Judge Lohier vacated on sufficiency grounds three bank-fraud related convictions, based on conduct occurring between 2001 to 2007, … Read more
The Circuit issued no relevant published decisions today and only two short summary orders, one of which (marginally) bears wider interest. In United States v. Mobutu Thornhill, Docket No. 15-2147-cr, the Circuit (Jacobs, Calabresi, Raggi) affirmed Thornhill’s conviction, following a jury trial, for being a felon in possession of a firearm. The sole issue discussed … Read more
In United States v. Leroy Derry, Docket No. 15-1829-cr, which was issued yesterday but amended today, the Circuit (by Judge Parker, joined by Judges Pooler and Livingston) ruled as a matter of statutory interpretation that Derry was ineligible for a second sentence reduction under 18 U.S.C. § 3582(c)(2) because the new 2015 amendment (under which … Read more
In United States v. Rendsland, Docket No. 14-3942-cr, a summary order issued today, the Circuit ruled that the district court committed plain error in relying on U.S.S.G. § 2A2.2 (“Aggravated Assault”) to calculate Mr. Rendsland’s Guideline range, rather than § 2A2.4 (“Obstructing or Impeding Officers”), even though the parties had stipulated that this was the … Read more
In United States v. Fernandez et al., Docket No. 14-4158-cr (L), a summary order issued today, the Circuit principally reaffirms the longstanding rule that “a conviction can be sustained on the basis of testimony from a single accomplice, so long as the testimony is not incredible on its face and is capable of establishing guilt … Read more
The Circuit did not issue today either a decision or a summary order relevant to criminal practice. Nor did the Supreme Court. Check back again tomorrow!
Defendant Cannot Benefit on Direct Appeal from Guideline Amendment that Became Effective after His Sentencing if Amendment Is Substantive rather than Clarifying (unless the Commission Determines that the Amendment Should Have Retroactive Effect under § 1B1.10) In United States v. Miguel Jesurum, No. 14-4464-cr (2d Cir. April 14, 2016), the Court (op. by Pooler, joined … Read more