United States v. Selioutsky, Docket No. 04-2740 , (2d Cir. May 27, 2005) (Newman, Wesley, Hall) (Op. by Newman): This is yet another opinion by Judge Newman fleshing out some important details of the post-Booker sentencing (and appellate) world left unresolved by Booker itself. In this case, the Circuit (1) excises Section 3553(b)(2), which required … Read more

Henry v. Poole, Docket No. 03-2884 (2d Cir. May 24, 2005) (Oakes, Kearse, Sack) (Op. by Kearse): This probably happens once in a blue moon: Judge Weinstein denies habeas, but the Circuit reverses and grants habeas. But, alas, that is what occurred in this case. The Circuit, by Judge Kearse, ruled that state trial counsel … Read more

U.S. v. Swindle, Docket No. 03-1773 (2d Cir. May 11, 2005) (Feinberg, Cardamone, and Parker)(Op. by Feinberg) In a refreshingly frank decision, the Second Circuit upheld the denial of a suppression motion, finding that it was “constrained by relevant Supreme Court precedent” in affirming the legality of a seizure. In doing so, the Court was … Read more

Usama Whab v. United States, Docket No. 05-1214 (2d Cir. May 19, 2005) (Walker, Leval, Duplantier) (Op. by Leval): This is a surprisingly good, pro-defendant opinion — in a case litigated by a pro se petitioner, no less. (Two cheers for the Court!) Essentially, the Circuit held that if a defendant files a second 2255 … Read more

United States v. Evelyn Gonzalez, Docket No. 04-1956-cr (2d Cir. May 3, 2005) (Meskill, Calabresi, Wesley) (Op. by Meskill): This odd case has already received a good deal of attention from Professor Berman and others. And rightly so, for it seems to suggest — if only in dicta and only by silence — that a … Read more

Yesterday, April 29th, the Court issued the following blanket order, which applies to all appeals raising a Booker claim in which the error was not preserved (i.e., primarily cases in which the sentencing occurred before Blakely was decided in June 2004). It states, in is cryptic entirety, “John M. Walker, Jr., Chief Judge of the … Read more

United States v. Maloney, Docket No. 03-1753 (2d Cir. April 28, 2005) (Jacobs, Pooler, Sotomayor) (Op. by Sotomayor): Some of us had hoped that Booker, rendering the Guidelines-derived range merely advisory, would put an end to the mind-numbing analyses of poorly drafted Guidelines provisions churned out by the Circuit each week. Such hopes had been … Read more

United States v. Morgan, Docket No. 03-1316 (2d Cir. April 27, 2005) (Straub, Pooler, Parker) (Op. by Parker): You win some, you lose some. A mixed bag for defendants from the Circuit today: a good decision in Fagans, and an awful one in Morgan. In a short opinion — issued “on reconsideration” — that is … Read more

United States v. Fagans, Docket No. 04-4845-cr (2d Cir. April 27, 2005) (Newman, Cabranes, Pooler) (Op. by Newman): This is the most recent of a long line of opinions authored by Judge Newman that discuss the application of Booker to cases pending on review. It answers an open question about whether a Crosby remand (i.e., … Read more

United States v. Vaval, No. 04-121-cr (April 12, 2005)(Winter, Sotomayor, and Parker)(op. by Winter). In this opinion, the Court addressed two important issues regarding guilty plea practice – the sufficiency of the allocution and the government’s obligations under a plea agreement. FactsTroy Vaval and his confederates made arrangements to sell firearms to a confidential informant. … Read more