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UNITED STATES V. OSUALA, NO. 12-3573 (2D CIR. FEB. 3, 2014) (CABRANES, LIVINGSTON, AND CARNEY) (SUMMARY ORDER), AVAILABLE HERE

This defendant appealed from convictions for obstructing administration of the IRS, subscribing to false and fraudulent income tax returns, and aiding and assisting the preparation of false individual tax returns.  He claimed expiration of the six-year statute of limitations precluded Indictment and that the district court imposed an unreasonable sentence after considering tax returns that were not a basis for conviction.  Both arguments failed.

First, the defendant failed to raise any statue of limitations claim before the district court.  Thus, he waived the argument on appeal.  Nevertheless, the claim failed on the merits according to the Court.  The limitation period runs from the filing deadline for the relevant tax returns rather than the date on which the return was actually submitted.  As to the obstruction allegations, such a charge is within the limitations …

UNITED STATES V. WILLIAMS, JOHNSON, AND JONES, NOS. 12-2314(L), 12-2454-cr(CON), 12-2650(CON) (2D CIR. FEB. 3, 2014) (KATZMANN, WESLEY, AND CHIN) (SUMMARY ORDER), AVAILABLE HERE

In this case, a jury convicted two defendants (Johnson and Jones) after trial for multiple counts of bank fraud and aggravated identity theft, as well as conspiracy to commit bank fraud.  A third defendant (Williams) pleaded guilty to one count of each of these offenses, entered into a cooperation agreement, and testified against Johnson and Jones.  The district court imposed sentences of 264 and 240 months’ imprisonment for Johnson and Jones respectively, and 109 months’ custody for Williams.  Jones challenged the sufficiency of the evidence against him at trial.  All three defendants challenged their sentences as procedurally and substantively unreasonable.  The Court denied all claims.

In his sufficiency of the evidence claim, Jones argued that his mere presence did not make him a member of the conspiracy and that …

United States v. Chervin, No. 13-631-cr (2d Cir. Jan. 30, 2014) (Kearse, Pooler, and Raggi) (summary order), available here

UNITED STATES V. FAILING, NO. 10-3330-cr (2D CIR. FEB. 3, 2014) (KATZMANN, WESLEY, AND LOHIER) (SUMMARY ORDER), AVAILABLE HERE

In this case, the defendant was convicted after trial of conspiracy to possess methamphetamine with intent to distribute.  He received 77 months’ custody.  On appeal he challenged the district court’s admission of out-of-court statements by a co-conspirator pursuant to Federal Rule of Evidence 801(d)(2)(E) and argued that their admission violated his Confrontation Clause and due process rights.  He also challenged his sentence as procedurally and substantively unreasonable claiming that the district court refused to consider arguments regarding his methamphetamine addiction.  All of these claims failed.

First, no error occurred as a result of admitting the co-conspirator’s statements.  To be admissible pursuant to Rule 801(d)(2)(E), the district court must find by a preponderance of evidence that the statement was made in furtherance of the conspiracy.  The district court did not err by admitting the statements, …

UNITED STATES V. JOHNSON, NO. 12-3328-cr (2D CIR. FEB. 3, 2014) (POOLER, RAGGI, AND SCHOFIELD) (SUMMARY ORDER), AVAILABLE HERE

Post-conviction for wire fraud and bank fraud, the defendant in this appeal challenged his sentence as procedurally unreasonable and challenged the sufficiency of the evidence to his intent to commit bank fraud pursuant to 18 U.S.C. § 1344.  The district court calculated the loss amount by taking 30 percent of the total mortgage price of certain properties purchased, including those by two co-defendants.  Because the defendant never challenged the presentence report’s method of calculating loss and in his sentencing letter specifically contemplated guidelines that included losses incurred by the co-defendants, he waived any factual challenge on appeal.  As to his sufficiency of the evidence claim, the defendant argued that the government failed to prove that the banks lost anything of value.  The Court reconfirmed the Circuit’s reading of the bank fraud statute “expansively” and noted …

United States v. Krasniqi, Nos. 12-2788-cr and 12-2789-cr (2d Cir. Jan. 28, 2014) (Newman, Hall, and Lynch) (summary order), available here

United States v. DeMizio, No. 12-1293 (2d Cir. Jan. 28, 2014) (Newman, Kearse, and Livingston), available here

United States v. Moreno-Montenegro, No. 12-3040-cr (2d Cir. Jan. 27, 2014) (Katzmann, Winter, and Calabresi) (summary order), available here

The defendant pled guilty to one count of conspiracy to import heroin into the United States and one count of conspiracy to distribute heroin intending that it would be unlawfully imported into the United States. He was sentenced principally to concurrent terms of 78 months of imprisonment on each count, plus five years of supervised release.

On appeal, the Court held in this summary order that the district court committed plain error under the Double Jeopardy Clause by imposing separate convictions and sentences on both counts. Noting that a single agreement to commit several crimes constitutes one conspiracy, the Circuit found that the defendant in this case entered into only one conspiratorial agreement, albeit with multiple unlawful objects. Thus, he should have been convicted and sentenced for only one conspiracy, not two.

With respect …

United States v. Melendez, No. 12-4181-cr (2d Cir. Jan. 24, 2014) (Wesley, Hall, and Chin) (summary order), available here

Convicted of one count of receiving child pornography, the defendant was sentenced to 168 months of imprisonment, the bottom of the 168-to-210 month Guidelines range. This summary order affirms the sentence as substantively reasonable.

The Court  held that the district court (Judge Bryant) carefully considered the Guidelines, weighed the facts, and imposed a sentence below what the Guidelines would have called for in the absence of a statutory maximum. The district court also found that the defendant showed little remorse for his conduct and that he was likely to re-offend. The court also found that the defendant was more than a passive recipient of child pornography. The Circuit acknowledged that a number of factors favored leniency, but held that the district court properly considered all the factors and imposed a reasonable sentence. …

United States v. Needham, No. 12-5130-cr (2d Cir. Jan. 24, 2014) (Jacobs, Chin, and Droney) (summary order), available here

Convicted of 11 Hobbs Act robberies and other crimes, Needham challenged her 30-year prison term as procedurally and substantively unreasonable. This summary order affirms the sentence.

The Circuit noted that the sentencing court properly calculated the Guidelines range and considered the applicable statutory factors and the parties’ oral and written arguments (including the government’s 5K1.1 letter). Judge Pauley explained in detail how he arrived at the sentence, which represented a substantial downward departure from the Guidelines range of 660 months-to-life. “Nothing more was required.”

The Court also held that the district court properly considered the significance of the defendant’s cooperation and the seriousness of her criminal record as compared to that of a co-defendant who received a lesser sentence of 130 months. Unlike the co-defendant, who participated in 14 robberies, Needham admitted participating in approximately 40 robberies, …