United States v. Gutierrez, No. 08-3581-cr (2d Cir. February 11, 2009)(Cabranes, Sotomayor, CJJ, Rakoff, DJ) Before Gutierrez was sentenced, his counsel filed a lengthy sentencing memorandum outlining five separate grounds for a below-guideline sentence. The government’s written response sought a guideline sentence. At sentencing, the court did not address the attorneys at all. It gave … Read more
United States v. Poindexter, No. 07-1151-pr (2d Cir. February 10, 2009) (Walker, Calabresi, Katzmann, CJJ) (per curiam) In 1995, Melvin Poindexter was charged with a cocaine conspiracy, with no drug quantity specified in the indictment. He therefore faced a 20-year maximum, but no mandatory minimum. Before trial, the government filed a prior felony information, which … Read more
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 … Read more
United States v. Parker, No. 07-0620-cr (2d Cir. February 3, 2009) (Feinberg, Leval, Cabranes, CJJ) Recently, the court held that the “buyer-seller” rule did not apply where the defendant, a drug buyer who resold the drugs, clearly had a stake in the seller’s operation. See “Buyer’s Remorse,” posted October 26, 2008. Here, the court goes … Read more
United States v. Pope, No. 08-1007-cr (2d Cir. February 3, 2009) (Cabranes, Livingston, CJJ, Eaton, DJ) Steven W. Pope pled guilty to two counts of bank burglary, in violation of 18 U.S.C. § 2113(a). During one of the burglaries, he broke a side window of a Chase branch with a sledgehammer. Based on this, at … Read more
United States v. Varrone, No. 07-4533-cr (2d Cir. January 30, 2009) (Calabresi, Sotomayor, Parker, CJJ) Joseph A. Castello ran a check cashing business. He cashed more than $200 million in checks that exceeded $10,000 – charging a four percent check-cashing fee – for which he was obligated to file currency transaction reports (CTR’s). He did … Read more
Gibbons v. Savage, No. 07-3306-pr (2d Cir. January 28, 2009)(McLaughlin, Leval, Pooler, CJJ). At Robert Gibbons’ state court trial, the judge closed the courtroom during jury selection, expelling the only spectator, Gibbons’ mother. After exhausting his state court appeals, Gibbons filed a 2254 petition, which the district court dismissed. The circuit affirmed. In doing so, … Read more
United States v. Irving, No. 07-1312-cr (2d Cir. January 28, 2009)(Kearse, Sack, Raggi, CJJ) Stefan Irving is a former physician who was convicted, after a jury trial, of child pornography offenses, and several other counts relating to his travel to Mexico and Honduras to engage in sexual acts with children. The district court sentenced him … Read more
United States v. Hurell, No. 06-5653-cr (2d Cir. January 28, 2009) (Kearse, Calabresi, Sack, CJJ) (per curiam) In each of these three consolidated cases, all government appeals, the district court held that New York convictions for burglary in the third degree or attempted burglary in the third degree were not crimes of violence as defined … Read more
Three more quickies: In United States v. Espinal, No. 07-3128-cr (2d Cir. January 21, 2009), there was an inconsistency between the district court’s oral statement of the guideline range and the range contained in the written judgment. The court remanded the case for the “ministerial purpose” of amending the judgment to reflect the actual Guideline … Read more