Archive | Uncategorized

Here are the two latest summary orders of interest.

In United States v. Spitsyn, No. 09-4698-cr (2d Cir. December 16, 2010), the court agreed with the parties that the district court relied on clearly erroneous findings of fact in a bank fraud case to support ts finding that all of the checks the defendants cashed were relevant conduct. However, the court rejected the defendant’s request that the court order that the resentencing occur on the existing record. Instead, the district court will have the discretion to reopen the record if it sees fit.

In United States v. Roseboro, No. 09-5002-cr (2d Cir. December 8, 2010), although the court agreed that the district court erred in attributing criminal history points to a conviction that fell outside the applicable time periods set out in U.S.S.G. § 4A1.2(e) and (k)(2), it found that the error was harmless. The sentence the district court selected …

This latest per curiam was a summary order that, on the government’s motion, the court published. In it, the court holds that a sentence to a conditional discharge in Connecticut state court is a “criminal justice sentence” for purposes of the criminal history enhancement in U.S.S.G. § 4A1.1(d). The court had long ago held that this was true for a New York State conditional discharge. The defense here attempted to distinguish Connecticut from New York by pointing out that in New York a conditional discharge can be revoked, while in Connecticut it can only be modified or enlarged. But, to the circuit, the distinction did not matter. That a Connecticut conditional discharge can be modified is sufficient, because it still means that the sentence has a “supervisory component.”