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Monday, June 16th, 2008

You Can’t Get A Ten With A Gun

United States v. Whitley, No. 06-0131-cr (2d Cir. June 16, 2008) (Newman, Sack, Parker, CJJ)

Background

Whitley used a gun to rob a grocery store; during the robbery, the gun accidentally went off. He was convicted after a jury trial of robbery, possessing the firearm as a previously convicted felon, and discharging that same firearm in connection with a crime of violence, under 18 U.S.C. § 924(c)(1)(A)(iii). Because he was an armed career criminal, the felon-in-possession count subjected him to a fifteen-year mandatory minimum sentence (18 U.S.C. § 924(e)), and the district court also sentenced him to a ten-year consecutive sentence for discharging the gun, as required by § 924(c)(1)(A)(iii). This part of the sentence was the subject of his appeal.

The Court’s Ruling

Section 924(c)(1)(A)(iii), in pertinent part, provides that “[e]xcept to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other …

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Sunday, June 15th, 2008

Out of Hindsight

Parisi v. United States, No. 06-1148-pr (2d Cir. June 13, 2008) (Winter, Hall, CJJ, Oberdorfer, DJ)

In this 2255 appeal, the defendant unsuccessfully argued that his counsel was constitutionally ineffective for failing to move for dismissal based on a Speedy Trial Act violation.

Facts

In 2001, Parisi was charged, in a complaint, with child pornography-related offenses. Although, under the Speedy Trial Act, the government had thirty days within which to indict him, the indictment was not filed until nearly 200 days later. During that period, counsel executed three “stipulations” seeking sixty-day continuances for plea negotiations. Each stipulation agreed that the ends of justice to be served by the delay would outweigh defendant’s and the public’s right to a speedy trial. The district court “so ordered” each stipulation.

In 2003, Parisi pled guilty under a plea agreement that included an appellate waiver, and received a 150-month sentence. He later filed a …

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Recuse Me

United States v. Hasarafally, No. 06-4239-cr (2d Cir. June 12, 2008) (Cardamone, Sotomayor, Raggi, CJJ)

The defendant moved in the circuit to disqualify the entire justice department from representing the government on this appeal, because the judgment under review was rendered by Judge Mukasey, who is now Attorney General.

The court denied the motion. It began by noting that there was “very little precedent” on the “potential conflict of interest created by the transition from judge to prosecutor.” The court surveyed a few possible areas of conflict, but skipped the most obvious one: A prosecutor will be unlikely to confess error on appeal if he was the trial judge in the case.

In any event, here there is no possibility for conflict because, the government advises, the attorney general has recused himself “from all matters in which he participated as a United States District Judge.” Thus, he will play no …

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Role of Certs

This pair of decisions, both arising from 2255 motions, gives helpful guidance on counsel’s obligations to file a petition for a writ of certiorari.

In Pena v. United States, No. 06-0218-pr (2d Cir. June 12, 2008) (Jacobs, Parker, Wesley, CJJ)(per curiam), the court held that a retained attorney was not ineffective for failing to advise his client of the right to seek certiorari. While the Sixth Amendment right to counsel covers a first-tier appeal, there is no constitutional right to counsel beyond that. Seeking certiorari is the first step in the non-Sixth Amendment discretionary appeal, and not the last step in the first-tier appeal. Accordingly, Pena’s counsel was not ineffective in failing to inform him of his right to seek certiorari.

The court noted that the Criminal Justice Act imposes greater obligations on appointed counsel. But since Pena’s counsel was retained, that statute did not apply. That said, the court …

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Hollywood Accounting

United States v. Leonard, No. 05-5523-cr (2d Cir. June 11, 2008) (Kearse, Calabresi, Katzmann, CJJ)

In this case, the court concludes that interests in film production companies were “investment contracts,” and hence securities, under federal securities law. It also holds, however, that the district court erred in treating the entire cost of the securities as the loss amount under the guidelines.

Facts

The defendants ran sales offices that peddled interests in LLC’s formed to finance the production and distribution of motion pictures. Potential investors were solicited over the phone and, if they expressed an interest, would be sent offering materials, including brochures, operating agreements, and other such documents. Investors could purchase $10,000 “units” by completing and mailing back a subscription agreement.

The defendants’ sales offices would receive a commission of around 45% for each unit sold. This was the fraud – although the offering materials indicated that a commission would …

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Saturday, June 14th, 2008

Allocution Lessons

United States v. Gonzalez, No. 07-4824-cr (2d Cir. June 11, 2008) (Newman, Walker, Pooler, CJJ)

In this case, the circuit sets out the procedure that a district court should follow when it realizes that it has sentenced a defendant without first giving him an opportunity to allocute. It also criticizes the imposition of the statutory maximum sentence.

1. Facts

Gonzalez admitted that he violated his supervised release by possessing marijuana. At a sentencing hearing, Judge Conti, visiting from the Northern District of California, heard from the probation officer, who reported that Gonzalez was released from prison in November of 2006. He was sent from there to immigration custody, and released by immigration about two weeks later. Although the officer sent him three notices, Gonzalez never reported to probation. The officer later learned that Gonzalez had been convicted of two petty offenses after his release.

With respect to the failure to …

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The Loan Arranger

United States v. Confredo, No. 06-3201-cr (2d Cir. June 10, 2008) (Newman, Winter, Parker, CJJ)

This case takes on the difficult question of fixing the loss amount under the sentencing guidelines when the case involves fraudulently obtained that loans have been partially repaid. It also addresses an interesting Apprendi claim.

1. The Loss Amount

Defendant Confredo and his associates coordinated the submission of more than 200 fraudulent loan applications to New York banks. The borrowers were small businesses, which paid Confredo a fee, and knew that the applications were false, in most instances because the businesses were not credit worthy. Most of the applications were cosigned by second parties with good credit, but none were secured by real collateral. In total, more than $24 million was sought, and more than $12 million was actually lent, mostly from Citibank.

At sentencing, the probation department recommended that the full $24 million be …

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Breach Blanket Bingo

United States v. Bell, No. 07-0715-cr (2d Cir. June 10, 2008) (Jacobs, Calabresi, Sack, CJJ) (per curiam)

In this case, the circuit had to sift through competing claims as to which party breached the plea agreement.

Defendants Brumer and Klein pled guilty to various offenses relating to healthcare fraud. Their agreements with the government stipulated to a loss amount, and specified that neither party would seek a departure or adjustment other than those contained in the agreement. Based on the proof at a related trial, however, the government offered to amend the agreement and reduce the loss amount. The defendants rejected this offer, and instead sought a Fatico hearing, after which the court held them accountable for a significantly lower loss amount. In exchange, the government sought adjustments for mass marketing and vulnerable victims that were not part of the plea agreement.

So who breached first? The defendants. According to …

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Friday, June 6th, 2008

Nostab

United States v. Todd, No. 05-5525-cr (2d Cir. June 5, 2008) (per curiam)

In this “reverse-Batson” decision, the court upheld the district court’s decision to re-seat a white juror against whom the defendants, all members of minority groups, had exercised a peremptory challenge. The court found no clear error in the district court’s conclusion that the challenge was based on the juror’s race.

Specifically, the circuit agreed that the defendants’ concern that the brother of the juror’s fiancé was a police officer was unjustified because (1) the juror said that this would not affect her and (2) the defense had accepted a Latino juror whose brother was a retired undercover officer. The court also rejected the defendants’ claim that the juror’s residence in Westchester County was a basis for the challenge. That juror lived in Yonkers, which the defense conceded was “more like the Bronx than Westchester” and, in any …

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Wednesday, June 4th, 2008

Summary Summary

This crop of summary orders of interest closes out May 2008.

In United States v. McCargo, No. 07-0626-cr (2d Cir. May 30, 2008), the defendant escaped from a halfway house, then months later was found to be in possession of a firearm. The court held that the gun possession was properly deemed “in connection with” the escape – triggering a four-level enhancement – because escape is a continuing offense and the defendant admitted that he acquired the gun for “protection.”

In United States v. Rosario, No. 06-5655-cr (2d Cir. May 30, 2008), the court extended the Regalado remand procedure for crack cocaine cases to a case where the offense level was based on a combination of crack and heroin.

In United States v. Konstantin, No. 07-0033-cr (2d Cir. May 29, 2008), the court held that (1) the district court did not violate the defendant’s constitutional right to his choice of …

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Pimentel Loaf

United States v. Habbas, No. 05-6142-cr (2d Cir. May 30, 2008) (Leval, Sack, CJJ, Garaufis, DJ)

This confusing opinion attempts to sort through the defendant’s claim that the government breached a plea agreement. But because of the imprecise way it is written, it is hard to know what really happened.

Defendant Rahman pled guilty to obstruction of justice in connection with his effort to frame someone named Abdel-Wahed by falsely reporting that Abdel-Wahed had assaulted a third person, who had testified against one of Rahman’s associates. Rahman pled guilty and was sentenced to eight years in prison.

On appeal, he argued that the government violated the plea agreement by advocating for guidelines higher than those contained in the agreement. Specifically, the government agreed with the probation department’s assessment that Rahman merited a four-level role enhancement, even though the agreement did not contain that adjustment. In rejecting this claim, the appellate …

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