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February turned out to be an interesting month for summary orders. Here are the final four:

In United States v. Santillo, No. 08-4378-cr (2d Cir. February 26, 2009), the court upheld the imposition of a year-and-a-day prison sentence even though both the defendant and the government had stipulated to a sentence of five years’ probation.

In United States v. Navarro, No. 08-0484-cr (2d Cir. February 26, 2009), the court held that the government did not breach its plea agreement by advocating for a Guideline sentence in response to the defendant’s request for a downward variance. The government had promised not to take a position concerning where within the range the court should impose sentence, and merely asking for a within-Guideline sentence was permissible.

In United States v. Bossinger, No. 07-5718-cr (2d Cir. February 25, 2009), the court found “merit” to the defendant’s claim of prosecutorial misconduct in summation. The prosecutor …

In the past month or so, there have been only two summary orders of interest. Here they are:

Guidelines section 4A1.2(c)(2) lists offenses that are too petty to count in the criminal history score, and instructs that offenses “similar to” those on the list are also excluded. In United States v. Muse, No. 08-0831-cr (2d Cir. February 20, 2009), the court rejected the argument that misdemeanor marijuana possession is similar to other offenses on the list, such as “minor traffic infraction or public intoxication.” This has been an open question in this circuit; since a summary order does not have a precedential effect, it is still open.

In United States v. Valle-Iglesias, No. 09-1968-cr (2d Cir. February 13, 2009), the court agreed that a prior conviction for breaking into a commercial office and stealing computer equipment was not a crime of violence under U.S.S.G. § 2L1.2(b).

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