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Pro Se Appeal Fails on All Eight Grounds
United States v. Razzoli, No. 13-126(L) (2d Cir. Dec. 23, 2013) (Raggi, Chin, and Droney) (summary order), available here
Circuit Affirms Top-of-the-Range Sentence for Violation of Supervised Release
United States v. Morris, No. 12-4796-cr (2d Cir. Dec. 23, 2013) (Pooler, Parker, and Chin) (summary order), available here
District Court Did Not Commit Plain Error By Excluding Evidence of Lenders’ Negligence
United States v. Isola, No. 12-3484-cr (2d Cir. Dec. 23, 2013) (Pooler, Parker, and Chin) (summary order), available here
Evidence of Drug Trafficking in Arizona Was Admissible Against Defendant Charged With Conspiring to Distribute Drugs in Vermont “and Elsewhere.”
United States v. DeLaRosa, No. 12-4188-cr (2d Cir. Dec. 20, 2013) (Cabranes, Wesley, and Livingston) (summary order), available here
Evidence Sufficient To Support Drug Conspiracy Conviction
United States v. Gonzalez, No. 12-5075-cr (2d Cir. Dec. 20, 2013) (Pooler, Parker, and Wesley) (summary order), available here
Failure to Order Competency Hearing Was Not Abuse of Discretion
United States v. Harry, No. 12-3623-cr (2d Cir. Dec. 19, 2013) (Pooler, Parker, and Wesley) (summary order), available here
Comparing Defendants with Different Criminal Histories Did Not Give Rise to Procedural Error at Sentencing
UNITED STATES V. JOHNSON, NO. 12-5094-cr (2D CIR. DEC. 16, 2013) (KATZMANN, WINTER, AND CALABRESI) (SUMMARY ORDER), AVAILABLE HERE
The defendant in this appeal challenged his sentence as procedurally and substantively unreasonable. He pleaded guilty to being a felon in possession of firearms and received 3 years’ prison. At sentencing, the district court compared him to another defendant with a less serious criminal history and stated that their sentences had to be similar because both were equally involved in the offense. The Court held that no procedural error occurred as a result of the comparison made between what the defendant contended were differently situated defendants. Relying on United States v. Williams, 524 F.3d 209, 216 (2d Cir. 2008), the Court reiterated that a district court can consider “factors beyond the scope of § 3553(a), as long as the outside factors ‘are not inconsistent with those listed in § 3553(a) and are logically applied …
Internally Inconsistent Testimony by Defendant at Fatico Hearing Supported Adverse Credibility Finding
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 …
Good Faith Exception Applied to Warrantless Use of GPS Tracking Device for Six Months in 2009
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. …