United States v. Bengis, No. 07-4895-cr (2d Cir. January 4, 2011) (Feinberg, Cabranes, Hall, CJJ) Three defendants pled guilty to various offenses arising from their South African lobster fishing businesses; they illegally harvested large numbers of rock lobsters from South African waters for export to the United States, conduct that violated both South African and … Read more
United States v. Preacely, No. 09-2580-cr (2d Cir. December 21, 2010) (Raggi, Lynch, Wallace, CJJ) In this unusual, three-opinion decision the majority remanded for resentencing, finding that the record was ambiguous as to whether the district judge understood his departure authority. Background Jamar Preacely pled guilty to a five-year-mando crack conspiracy pursuant to a cooperation … Read more
United States v. Arevalo, No. 09-0576-cr (2d Cir. December 21, 2010) (Jacobs, Kearse, Straub, CJJ) Defendant Manuel Vigil pled guilty to conspiracy to commit murder in aid of racketeering and using a firearm in connection with a crime of violence. He did so pursuant to a plea agreement that contained an appeal waiver – he … Read more
United States v. Abu-Jihaad, No. 09-1375-cr (2d Cir. December 20, 2010) (Raggi, Hall, Chin, CJJ) Defendant Hassan Abu-Jihaad, whose birth name was Paul R. Hall, was convicted of communicating national defense information about the movement of a Navy battlegroup to unauthorized persons. On appeal, his primary challenge was to the use of evidence that the … Read more
United States v. Thomas, No. 09-4335-cr (2d Cir. December 16, 2010) (Jacobs, Kearse, Straub, CJJ) The circuit has twice upheld strict liability nature of the “stolen gun” enhancement, currently codified as U.S.S.G. § 2K2.1(b)(4)(A). Here, the defendant raised the issue again, arguing that Apprendi and its progeny have undermined the circuit precedent on this point, … Read more
United States v. Diaz, No. 10-317 (2d Cir. December 15, 2010) (Cabranes, Pooler, Wesley, CJJ) (per curiam) In October, the court issued a non-precedential summary order holding that the Fair Sentencing Act (the “FSA”) is not retroactive. See “Summary Summary” posted October 27, 2010. This per curiam is a published opinion to the same effect, … Read more
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 … Read more
United States v. Markle, No. 06-1600-cr (2d Cir. December 14, 2010) (Jacobs, Pooler, Parker, CJJ) In United States v. Enmons, 410 U.S. 396 (1973), the Supreme Court held that extortion liability under the Hobbs Act, 18 U.S.C. § 1951, did not extend to violence in pursuit of “legitimate labor ends” that occurs during a lawful … Read more
United States v. Marcus, No. 07-4005-cr (2d Cir. December 7, 2010) (Calabresi, Straub, Wesley, CJJ) This is Marcus’ second go-round in the circuit. He won the first time, in August of 2008, (see “Sex Post Facto”, posted August 18, 2008). The government got cert, and the Supreme Court reversed, holding that the first panel had … Read more
United States v. Bouknight, No. 09-4085-cr (2d Cir. December 7, 2010) (Katzmann, Livingston, CJJ, Korman, DJ) 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 … Read more