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UNITED STATES V. NUNEZ, ET. AL., NO. 11-5019-cv (2D CIR. DEC. 16, 2013) (LIVINGSTON, LYNCH, AND HOHIER) (SUMMARY ORDER), AVAILABLE HERE

The defendant in this appeal challenged his sentence as procedurally unreasonable.  Specifically, he claimed that the district court erroneously denied him safety valve relief, held him responsible for 5 to 15 kilograms of cocaine, and denied a departure for acceptance of responsibility.  The defendant was convicted after trial of participating in a drug conspiracy.  The district court conducted a Fatico hearing prior to imposing sentence and credited another witness’s testimony over the defendant’s.  The Court held that there was no error in this credibility finding much less clear error, which is the standard of review for findings of fact made after a Fatico hearing.  The defendant’s testimony regarding a minimal number of drug transactions was internally inconsistent the amount of money he admitted having in his home.  The reasons for having this money, too, changed during …

UNITED STATES V. AGUIAR, ET. AL., NOS. 11-5262-CR (L), 11-5329-CR (CON), 11-5330-cr (CON) (2D CIR. DEC. 13, 2013) (JACOBS, POOLER, AND HALL), AVAILABLE HERE

The Court in this published opinion denied defendant’s multiple claims of error by the district court arising out of Rule 12 and post-trial motions. The most predominant issue involved the government’s warrantless placement of a GPS device on the defendant’s car from January to July 2009 and whether it violated the Fourth Amendment where officers have reasonable suspicion and probable cause to execute a search.  After a detailed analysis of similar out-of-Circuit cases and identifying relevant Supreme Court precedent in existence at the time of the government’s conduct, the Court ultimately held that the good faith exception to the warrant requirement applied. 

Burlington, Vermont’s Police Department and the DEA investigated a cocaine and heroin distribution conspiracy in mid to late 2008, which included Aguiar (the defendant) as a suspect. …

United States v. Coston, No. 12-4622-cr (2d Cir. Dec. 10, 2013) (Katzmann, Winter, and Calabresi), available here

UNITED STATES V. LAURIA (PAPPAS), NO. 13-269-cr (2D CIR. DEC. 10, 2013) (LIVINGSTON, CARNEY, AND KOELTL) (SUMMARY ORDER), AVAILABLE HERE

The Court in this summary order rejected for lack of jurisdiction a defendant’s appeal from a magistrate judge’s order denying various post-trial motions.  The Court noted that a magistrate judge’s general authority is derived from 18 U.S.C. § 636, which contemplates authority conferred by, among other things, referral from a district judge under certain provisions at subsection (b).  In this case, it was unclear whether referral occurred pursuant to § 636(b)(1)(A), (b)(1)(B), or (b)(3), though it did not matter.  Each provision required the district court to enter a final order, which never occurred.  Absent such a final order, the magistrate judge’s determinations were not reviewable on appeal.…

United States v. Punn, No. 13-2780-cr (2d Cir. Dec. 6, 2013) (Pooler, Lynch, and Droney), available here

United States v. Grimm, et al., Nos. 12-4310-cr; 12-4365-cr; 12-4371-cr (2d Cir. Dec. 9, 2013) (Kearse, Jacobs, and Straub), available here

UNITED STATES V. PINNEY, NO. 12-3954-cr (2D CIR. DEC. 9, 2013) (KEARSE, JACOBS, AND STRAUB) (SUMMARY ORDER), AVAILABLE HERE

The Court in this summary order rejected the defendant’s constitutional challenge to a condition of his supervised release.  The defendant agreed to the condition being added to the terms of his release and waived his rights to a hearing and assistance of counsel prior to imposition.  At a later sentencing hearing for violating that same condition, he never objected to the condition and only asked the district court to be lenient.  The Court characterized the decision not to challenge the condition’s “obvious” constitutional infirmities prior to sentencing as tactical.  As a result, any objections to the condition were waived.…

UNITED STATES V. TAYLOR, ET. AL., NOS. 11-2201(L), 11-2426(CON), 11-2639(CON) (2D CIR. DEC. 4, 2013) (KEARSE, JACOBS, AND CARNEY), AVAILABLE HERE

This published decision vacated three defendants’ convictions for conspiracy to commit Hobbs Act robbery of a Manhattan pharmacy in 2008 and brandishing of a firearm. The Court remanded for new trials after determining that interrogating agents took undue advantage of one defendant’s diminished mental state and overbore his will in obtaining what was held to be an involuntary confession. The Court further held that admitting the tainted confession at trial, even with a limiting instruction, was not harmless beyond a reasonable doubt as to all three defendants.

According to the opinion, Vasquez drove Taylor, Rosario and a woman named Luana Miller to rob a pharmacy in Manhattan on Christmas Eve in 2008. With Miller already inside posing as a customer after hours, Rosario entered the pharmacy brandishing a gun …

UNITED STATES V. SOLTREN, NO. 12-4755-cr (2D CIR. DEC. 2, 2013) (KEARSE, JACOBS, AND PARKER) (AMENDED SUMMARY ORDER), AVAILABLE HERE

On appeal a second time from the imposition of sentence, this defendant challenged the district court’s decision to impose fifteen years’ custody with the possibility of parole after five years as procedurally and substantively unreasonable pursuant to Booker.  He pleaded guilty to conspiracy to commit air piracy and kidnapping based upon his participation in the hijacking of a 1968 Pan American Airways flight from New York to Puerto Rico.  He remained in Cuba until returning to the United States in 2009, at which time he was arrested.  The district court first sentenced him to fifteen years’ custody without the possibility of parole, which was vacated.  The Court held it was error to impose a sentence that excluded the possibility of parole because it was a benefit that was available for crimes committed in 1968.  Unfortunately for the defendant’s …

United States v. McGeoch, No. 12-5012-cr (2d Cir. Dec. 3, 2013) (Walker, Cabranes, and Parker) (summary order), available here

United States v. Cardona, No. 12-4612-cr (2d Cir. Dec. 3, 2013) (Kearse, Jacobs, and Parker) (second amended summary order), available here