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Friday, July 10th, 2009

Daye of the Weak

United States v. Daye, No. 08-1012-cr (2d Cir. July 10, 2009) (Miner, Raggi, Livingston, CJJ)

Bruce Daye received an 180-month ACCA sentence. On appeal, he raised challenges to the use of all of his prior convictions as ACCA predicates, and the court sent the case back for further findings.

1. Escape

One of Daye’s prior convictions was for escape, most likely under Vt. Stat. Ann. tit. 13, § 1501. At the time of his federal sentencing, circuit law provided that, categorically, all escape convictions were crimes of violence for ACCA. Thus, although defense counsel objected to the characterization of the escape as a crime of violence, the district court made no findings as to the nature of the escape, which is now dispositive under Chambers v. United States, 129 S.Ct. 687 (2009).

Here, the PSR strongly suggested that Daye’s conviction arose from failing to return from a furlough, rendering it …

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Categories: ACCA, crime of violence, Uncategorized

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Back to the Future

United States v. Pearson, No. 07-0142-cr (2d Cir. July 2, 2009) (Miner, Katzmann, Raggi, CJJ) (per curiam)

Title 18, U.S.C. § 2259 provides that, in sex abuse cases, restitution is mandatory for the full amount of any loss to the victim, including the costs of medical or psychiatric care. Here, in a case of first impression in the circuit, the court held that this section includes restitution for estimated future expenses.

In this case, then, the district court properly ordered such future restitution. The circuit sent the case back anyway, however, because the district court, which arrived at a figure of nearly $ 1 million – the victims were two young girls – did not adequately explain how it arrived at the figure it selected.

The court also held that the issue survived the appellate waiver in Pearson’s plea agreement. With respect to restitution, the agreement merely stipulated that Pearson …

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No Escape

United States v. Mills, No. 07-0308-cr (2d Cir. June 26, 2009) (Kearse, Sack, Livingston, CJJ) (per curiam)

Gary Mills was convicted of violating 18 U.S.C. § 922(g), and received a 188-month sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (ACCA). But for ACCA, his statutory maximum would have been 120 months’ imprisonment.

On appeal he argued, and both the government and the court of appeals agreed, that under Chambers v. United States, 129 S.Ct. 687 (2009), his Connecticut conviction for first-degree escape was not a violent felony.

The Connecticut statute proscribes a variety of conduct, ranging from escape from a correctional institution (which probably is a crime of violence) to failing to return to a halfway house or from a furlough. Here, at the sentencing hearing, the evidence established that Mills had been released from prison to “transitional supervision.” He lived in a private residence, but was …

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Categories: ACCA, crime of violence, Uncategorized

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Summary Summary

Interesting summary orders have been piling up. Here is the latest crop:

In United States v. Strand, No. 08-3730-cr (2d Cir. July 8, 2009), the court held that the district court lacked the authority to impose a drug sentence lower than the mandatory minimum to “adjust” for time served on state sentences for related conduct, where the state sentences had been fully discharged several years before the federal sentences were imposed. The court also held that a valid claim that the defendants were not subject to consecutive § 924(c) sentences under Whitley and Williams was waived by the appellate waiver in the plea agreement.

In United States v. Brown, No. 08-3364-cr (2d Cir. July 6, 2009), the court held that a commerce clause challenge to one of the failure-to-register statues, 42 U.S.C. § 14072, was “not jurisdictional,” and hence was waived by a guilty plea.

In United States v. Douglas, …

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Sunday, June 21st, 2009

Unlucky Day

United States v. Lucky, No. 08-1939-cr (2d Cir. June 19, 2009) (Calabaresi, Katzmann, CJJ, Eaton, J CIT)

Damon Lucky appealed the denial of his Speedy Trial Act (STA) dismissal motion. The circuit, finding only 69 days of nonexcluded time, one short of the magic number, affirmed.

Lucky’s argument was that there was no proper STA exclusion during the 70 days from May 20, 2005, to July 28, 2005, because the district court excluded the time from the STA calculations without making an “ends of justice” finding. The government countered that the time had been properly excluded to give the parties time for plea negotiations, and that plea negotiations are automatically excluded as “other proceedings concerning the defendant” under § 3161(h)(1) of the STA, with no “ends of justice” finding required.

While two other circuits have so held, the Second Circuit is “not yet convinced” by this argument. The phrase “other …

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Saturday, June 20th, 2009

Gray’s Anatomy

United States v. Jass, No. 06-4899-cr (2d Cir. June 16, 2009) (Walker, Cabranes, Raggi, CJJ)

Marian Jass was jointly tried with her much older boyfriend, Kenneth Leight, on charges that they sexually exploited Leight’s daughter and one of her friends. Leight, but not Jass, was also charged with several child pornography counts, based on materials found in his home. The evidence of sexual exploitation consisted mainly of the testimony of the two girls. The government also relied on an agent’s testimony that Leight gave a detailed oral, unsigned and unacknowledged, confession about the episode involving the daughter’s friend. The statement, which incriminated Jass and referred to her seven times, was admitted over her objection after being redacted to substitute the phrase “another person” for each reference to her name. Leight did not testify and could not be cross-examined about the statement attributed to him. The court instructed the jury that …

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Gambling Problem

United States v. Ivezaj, No. 06-3112-cr (2d Cir. June 11, 2009) (Feinberg, Miner, Parker, CJJ)

Six defendants were convicted of racketeering and related offenses arising from their efforts to break the hold that New York City’s traditional organized crime families had on illegal gambling.

The primary challenge on appeal concerned two RICO predicate acts that alleged violations of New York state’s extortion statute. In New York, extortion involves compelling another person to “deliver … property” to himself or a third person through fear of a future injury. “Property” is any personal property or “article, substance or thing of value … which is provided for a charge or compensation.” The defendants argued that control over illegal intangible property such as a gambling operation was not “property” and could not be “delivered.”

The circuit disagreed. Surveying New York case law, the court first concluded that the state recognizes that intangible property – …

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Thursday, June 4th, 2009

Timewell Spent

United States v. Timewell, No. 07-4587-cr (2d Cir. June 1, 2009) (Miner, Raggi, Livingston, CJJ)

Here, the circuit held that the district court’s reasons for denying a Crosby remand rendered the sentence procedurally unreasonable. It remanded the case for reconsideration, with instructions.

Background

Gregory Timewell was a major international trafficker in marijuana and hashish. In the late 1990’s, he was prosecuted in the Eastern District of New York, where he cooperated with the government. In 1998, he signed a cooperation agreement, which included a list of his assets that he agreed to forfeit to the government. Three years later, it emerged that Timewell had misled the government about some of his assets – millions of dollars hidden in Switzerland. His explanation was that, at the time of his original cooperation, he believed that the money had been appropriated by one of his associates. He later learned that this was not …

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Friday, May 29th, 2009

Reduction Ad Absurdum

United States v. Savoy, No. 08-4800-cr (2d Cir. May 27, 2009)(per curiam)

After a 1998 jury trial on crack distribution charges, Demetric Savoy faced a guideline sentencing range of 188 to 235 months’ imprisonment, and received a sentence at the bottom of the range. In 2008, he moved, under 18 U.S.C. § 3582(c)(2), for a sentence reduction under the retroactive ameliorating amendment to the crack guidelines. With that amendment, Savoy faced a revised range of 151 to 188. However, in the motion, he argued that the court should sentence him to 120 months. The district court granted the § 3583(c)(2) motion and reduced the sentence to 151 months, but refused to go lower. The court believed that the relevant guideline provision, § 1B1.10, was binding and precluded a sentence below the amended range.

On appeal, the circuit affirmed. The language of § 1B.10 is mandatory: the court “shall not reduce …

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Thursday, May 14th, 2009

Citizen Feign

United States v. Tureseo, No. 07-2933-cr (2d Cir. May 14, 2009)(Miner, Cabranes, CJJ, Berman, DJ)

Juan Tureseo was deported in 1997, after an assault conviction. Immigration agents found him in the United States in 2006, at which time he insisted he was a United States citizen named Danny Ortega. When the agents warned him that it was a crime to lie to them, he admitted the truth.

Tureseo was originally charged only with illegal reentry. As that case wore on, however, he again insisted that he was Danny Ortega, a United States citizen. His wife provided Ortega’s birth certificate to his counsel, who passed it on to the government, asserting that it belonged to his client. As a consequence, the government obtained a superseding indictment charging Tureseo with falsely claiming United States citizenship and aggravated identity theft. Tureseo, now with new attorneys, was convicted after a jury trial.

The Defendant’s …

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Sunday, May 10th, 2009

Summary Summary

There have been five summary orders of interest in the past month or so. Here they are:

In United States v. Al Manware, No. 08-2235-cr (2d Cir. May 4, 2009), the court ordered resentencing on a supervised release violation because the district court did not provide the defendant an opportunity to allocute before imposing sentence.

In United States v. McGowan, No. 08-2603-cr (2d Cir. May 4, 2009), the court found no abuse of discretion in the district court’s permitting hearsay at a supervised release revocation hearing. The declarant was a 12-year-old child victim and the district court “implicitly found” that her age and the “suggestive nature of the offense weighed in favor of not requiring her testimony.” Moreover, the hearsay was trustworthy, since it was supported by “ample circumstantial evidence” such as surveillance photographs and the defendant’s own admissions.

In United States v. Scott, No. 08-1489-cr (2d Cir. April 14, …

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