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Wednesday, December 17th, 2008

Restoration Drama

United States v. Bullock, No. 07-3059-cr (2d Cir. December 17, 2008) (Jacobs, Minor, Sotomayor, CJJ)

Bullock, a previously convicted felon, was convicted, after a jury trial, of possessing ammunition. He was subject to a fifteen-year mandatory minimum under the Armed Career Criminal Act (“ACCA”), and actually received a sentence of 188 months. On appeal, he argued principally that his prior convictions – three robberies – were not ACCA predicates because his civil rights had been restored. See 18 U.S.C. § 921(a)(20). Specifically, he noted that he had “been off parole for 11 years,” was “entitled to vote,” and that New York law did not restrict his right to possess ammunition.

The circuit disagreed. Restoration of civil rights has three components – the right to vote, the right to serve on a jury, and the right to hold elective office. The court agreed that Bullock’s rights to vote and hold office …

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Categories: ACCA, restoration of rights, Uncategorized

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Wednesday, December 10th, 2008

Summary Summary

Here is the latest crop of summary orders of interest:

In United States v. Adelson, No. 06-2738-cr (2d Cir. December 9, 2008), a government appeal, the court affirmed a 42-month sentence, which was a substantial downward variance from the guidelines, which recommended life. Citing Cavera, the court noted that for “financial offenses” sentences “if adequately explained, should be reviewed especially deferentially.”

In United States v. Cardenas, No, 06-5601-cr (2d Cir. December 9, 2008), the court remanded for an evidentiary hearing as to whether an “oral cooperation agreement” existed. The defendant alleged that there was, and there was not “overwhelming evidence to the contrary.” Moreover, the defendant’s allegations were not contradicted by any of his prior statements. Since the defendant made “sufficiently specific allegations under oath to raise issues of material fact as to the existence of the alleged oral agreement . . . the record was insufficient to deny the …

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Monday, December 8th, 2008

Run-On Sentence

United States v. Chavez, No. 05-4679-cr (2d Cir. December 8, 2008) (Kearse, Calabresi, Sack, CJJ)

Jaime Chavez was convicted after a jury trial of a drug conspiracy and a § 924(c) offense, and faced a 50-year mandatory minimum: due to a prior conviction there was a 20-year minimum on the drug charge; and, because the gun had a silencer, he faced a 30-year mandatory consecutive sentence for the gun. The guidelines recommended a minimum sentence of 60 years; 30 for the drugs plus 30 for the gun, and the district court sentenced him to 55 years.

Chavez had asked the court to shorten the sentence on the drug charge in light of the long sentence he faced for the gun, but the district court concluded that it could not lawfully do this. Rather, the court independently selected 25 years as the appropriate sentence for the drug conspiracy, then imposed the …

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Categories: 924(c), Uncategorized

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Sunday, December 7th, 2008

Take It To The Banc

United States v. Cavera, No. 05-4591-cr (2d Cir. December 4, 2008) (en banc)

Gerard Cavera pled guilty to participating in a scheme in which guns were purchased in the South then transported to New York City for sale. At sentencing, the district court imposed a sentence six months longer than the top of the Guideline range, and an above-Guideline fine, based on two “location specific” concerns. The court held that firearms offenses are more dangerous in densely populated urban environments and that the need for deterrence was greater because New York’s strict gun laws made it one of the few places where gun-running was profitable.

On Cavera’s appeal, a panel of the court vacated the sentence as procedurally unreasonable (the case was blogged here twice, most recently in October 2007 under the title Location, Location, Location). The circuit then took up the case en banc. Although the court divided deeply …

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Categories: procedural reasonableness, substantive reasonableness, Uncategorized

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Who’s Your Daddy?

United States v. Connolly, No. 06-3139-cr (2d Cir. December 4, 2008) (Straub, Raggi, CJJ, Sessions, DJ)

Odell Connolly was born in Panama on April 21, 1968. His mother was a local, but his father was a United States citizen. They were not married. The father had been drafted into the United States Army in 1966 and was on active duty in the Panama Canal Zone until eighteen days before Connolly was born. After that, he was transferred to the Ready Reserves; he performed no further duty or services for the army, and received no pay or other form of government compensation. Although the army had the right to recall him to active duty, it never did so, and he was discharged in 1972.

Connolly legally entered the United States in 1993, but was deported in 1998 after a drug conviction, without asserting a claim to U.S. citizenship. He reentered illegally …

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Saturday, December 6th, 2008

Hire Today, Gone Tomorrow

United States v. Lee, No. 05-1684-cr (2d Cir. December 3, 2008) (Straub, Hall, CJJ, Haight, DJ)

Here, a divided panel found that a Crawford error required a new trial for two defendants convicted in a murder-for-hire conspiracy, although the evidence was legally sufficient.

Background

Defendant Williams was the head of a crack-cocaine ring operating in the Bronx. Defendant Lee was one of his dealers. The target of the conspiracy was Kawaine Ellis, who stabbed Lee in the chest in June of 2001. In November of 2001, Williams rented three cars at Newark Airport. Lee was pulled over while driving one of them, and was carrying a gun, which he told the police he had for “protection.” Around that same time, Williams spoke to another member of his crew, Jason Lawton, and told him to return a gun to Williams because Lee had “just got bit,” meaning that he had been …

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How Not To Seek A Change Of Counsel

United States v. Salim, No. 04-2643-cr (2d Cir. December 2, 2008) (Newman, Walker, Sotomayor, CJJ)

With the help of a cellmate, defendant Salim, while awaiting trial for the bombing of the United States embassies in Kenya and Tanzania, abducted an MCC guard and stabbed him in the eye with a sharpened comb, nearly killing him. He pled guilty to conspiracy and attempted murder of a federal official. Although Salim had originally claimed that this was a botched escape attempt, at the Fatico hearing, his story changed. He testified that he abandoned the escape plan as unworkable; rather his goal was to take the guard’s keys, unlock the attorney-client visiting room, and attack his attorneys so that they would withdraw from the case. Salim had indeed, on several occasions, unsuccessfully sought a substitution of counsel from the district court.

The district court credited Salim’s story; it held that the assault was …

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Categories: obstruction of justice, terrorism enhancement, Uncategorized

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The Waist Band

United States v. Padilla, No. 07-5359-cr (2d Cir. December 2, 2008) (Raggi, Calabresi, CJJ, Keenan, DJ)

October is the cruellest month. That’s when a New York City detective recovered a gun from Hector Padilla’s waistband. Padilla was sentenced to 120 months’ imprisonment, the statutory maximum. On appeal, his principal challenge was to the stop-and-frisk.

The Terry Stop

The detective, who was on surveillance in a “high-crime” area, became suspicious when he saw Padilla and another person following a “skinny,” “disheveled” white male down a secluded wooded path. The officer thought either that the two men were planning to rob the disheveled man or that the three were going to engage in a drug deal together. The officer drove around the block; when he saw the three again they were on the other side of the path and appeared to be walking as a group. This did not dispel his suspicions. …

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Sunday, November 30th, 2008

Embassy Suite

In re Terrorist Bombings of U.S. Embassies in East Africa, No. 01-1535-cr (2d Cir. November 24, 2008) (Feinberg, Newman, Cabranes, CJJ)

This trio of long opinions, captioned In re Terrorist Bombings of U.S. Embassies in East Africa, resolves the appeals of the defendants convicted of the embassy bombings in Kenya and Tanzania in 1998. One opinion deals with trial and sentencing issues, the second deals specifically with Fifth Amendment claims, and the third deals specifically with Fourth Amendment claims. The convictions of all defendants were affirmed, although one defendant asked for, and received, a Fagans remand.

The Trial Opinion

This opinion covers a host of issues, some of which are surprisingly mundane and are treated rather cursorily by the court. A few, however, are more interesting and are discussed here.

1. The Capital Indictment

Defendant Al-‘Owalhi was charged with capital offenses. Although not sentenced to death, he challenged the sufficiency …

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Saturday, November 29th, 2008

Simply Possession

Alsol v. Mukasey, No. 07-2068-ag (2d Cir. November 14, 2008) (Calabresi, Straub, Raggi, CJJ)

This decision, although an immigration case, clarifies an important legal issue that also arises in criminal cases.

Here, each petitioner had been convicted of two New York State drug misdemeanors involving simple possession of a controlled substance. The immigration courts, relying on the circuit’s decision in United States v. Simpson, 319 F.3d 81 (2d Cir. 2002), held that the second simple possession misdemeanor was a “drug trafficking crime,” and hence an aggravated felony, because such an offense could have been prosecuted as a felony under federal law. The immigration consequences were profound, as each defendant was denied “cancellation of removal,” the only available relief from deportation.

The circuit disagreed, however, and granted the two petitioners relief. The relevant immigration statute, 8 U.S.C. § 1101(a)(43), includes as an aggravated felony any “drug trafficking crime,” a phrase that …

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