Archive | Uncategorized

This is hot off the presses – today, in a summary order, the court held that the Fair Sentencing Act is not retroactive, since it “contains no express statement that it is intended to have retroactive effect nor can we infer such intent from its language.” The case is United States v. Baldwin, No. 09-1725-cr (2d Cir. October 27, 2010) (summary order).…

Well, it’s been a while, but the court has finally issued a couple of summary orders of interest.

In United States v. De La Cruz, No. 09-4641-cr (2d Cir. October 21, 2010), the district court, in imposing sentence, remarked that a “Guideline sentence by definition really can’t create unwarranted sentencing disparity.” The circuit agreed with the defendant’s argument that this was incorrect; under Kimbrough “a Guidelines sentence can create an unwarranted disparity.” But here, since the sentencing decision did not depend in any way on an improper view that a Guideline sentence was by definition reasonable, there was no error.

In United States v. Faison, No. 09-1519-cr (2d Cir. September 14, 2010), the court remanded for recalculation of defendant’s criminal history. The district court used the Guidelines in effect at the time of the offense, but those in effect at the time of sentencing would likely have produced in a …

United States v. Ahders, No. 09-4093-cr (2d Cir. September 16, 2010) (Katzmann, Hall, Chin, CJJ) (per curiam)

In this latest per curiam, the court vacated a long sentence imposed for producing child pornography, because the district court did not make adequate findings on a sentencing enhancement.

Steven Ahders pled guilty to a single production count that alleged he victimized a “male minor,” his step-son. Ahders had also abused two of the boy’s friends, however, and at sentencing the court “grouped” the other children into his Guidelines calculations, even though that conduct was not charged. The circuit rejected Ahders’ argument that this was error. The relevant Guideline, § 2G2.1, expressly provides that if the abuse involved more than one minor the court should treat each child as if a separate count of conviction.

However, the court agreed with Ahders that the district court did not adequately explain its application of the …

As summer draws to a close, here are two more summary orders of interest.

In United States v. Reap, No. 06-5793-cr (2d Cir. August 30, 2010), the court notes that it is an open question in the circuit whether 18 U.S.C. § 922(g)(1) requires proof that the defendant knew that he had a prior felony conviction.

In United States v. Goodwin, No. 09-2019-cr (2d Cir. September 9, 2010), the district court erroneously applied the four-level enhancement for possessing a firearm “in connection with” another felony offense by relying on a “fact not supported by record evidence.” The court rejected the defendant’s request for a remand with instructions not to impose the enhancement, instead opting for an “open ended” remand because “the facts relating to whether the enhancement might apply are unclear.”…

United States v. Epstein, No. 09-4025-cr (2d Cir. September 3, 2010) (Miner, Cabranes, Straub, CJJ) (per curiam)

In United States v. Merced – argued and won by our favorite blogger – the circuit held that prior terms of imprisonment for supervised release violations counted toward, and limited, the statutory maximums contained in 18 U.S.C. § 3583(e)(3). Congress “fixed” Merced in 2003’s PROTECT Act. This per curiam holds that the amended statute applies where the underlying offense occurred after the enactment of the new legislation.

Defendant Epstein received a twenty-four month violation sentence, but argued that the district court was obligated to credit him for a prior twelve-month violation sentence. This would have been required under the old statute, per Merced. But the amended statute “eliminate[s] the credit for terms of imprisonment resulting from prior revocations.” This outcome is clearly dictated by the change to the statute, which now indicates that …