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Friday, May 2nd, 2008

Youthful Indiscretion

United States v. Parnell, No. 06-4551-cr (2d Cir. April 23, 2008) (Winter, Straub, Sack, CJJ) (per curiam)

In this case, the court again holds that a New York youthful offender adjudication (a “y.o.”) – here, it was for attempted burglary in the second degree – must be included in the defendant’s criminal history score under the sentencing guidelines and, where applicable, can trigger the “career offender” enhancement.

There is nothing new or surprising about this. What is interesting about this case is its strong dicta that a y.o is not a predicate under the Armed Career Criminal Act (ACCA). Indeed, the circuit cites with approval United States v. Fernandez, 390 F. Supp.2d 277 (S.D.N.Y. 2005) (litigated and won by this very blogger), which so held, and notes that, here, the district court followed Fernandez in declining to sentence Parnell under ACCA, a sentence, not incidentally, that the government did not …

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Thursday, May 1st, 2008

Government’s “Question[able],” “Troub[ling]” and “Disingenous” Conduct Results in an Affirmance. Huh?

United States v. Blech, No 05-3600-cr (2d Cir. April 23, 2008) (Sotomayor, Parker, Hall, CJJ).

Two defendants who were convicted of securities and related frauds appealed on the ground that their cases were misjoined, and one advanced a Brady claim. The court affirmed, but only out of apparent deference to the district court’s findings under the “abuse of discretion” standard.

The Severance Issue

This case went to trial on a thirteen-count indictment that alleged two separate fraud schemes. The first involved appellant Brandon, who, along with others, defrauded customers of Credit Bancorp of more than $200,000,000. The second scheme involved appellant Wexler, who also defrauded Credit Bancorp customers, but in a different way. The district court denied their severance motions, and both were convicted.

The defendants’ severance claim was unusually strong. Although the two schemes shared some participants, and both targeted Credit Bancorp customers, they were otherwise completely distinct. Nevertheless, …

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Saturday, April 19th, 2008

Unconditioned

United States v. Gill, No. 07-0284-cr (2d Cir. April 17, 2008) (Cabranes, Sotomayor, Wesley, CJJ) (per curiam)

Gill, who pled guilty to making false statements in a health care matter, unsuccessfully challenged two of his special conditions of supervised release. The first, which barred him from “engaging in the business of counseling,” was reasonably related to the need to protect the public, since Gill had in the past falsely represented himself as qualified to provide mental health services, when in fact he was not. The other condition – a requirement that he continue making restitution payments arising from an earlier condition – was likewise proper because it was reasonably related to his history and characteristics…

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Cracked Up

United States v. Lee, No. 06-4933-cr (2d Cir. April 17, 2008) (Cabranes, Wesley, CJJ, Castel, DJ)

Defendant Cathy Lee received a 120-month sentence, the mandatory minimum, in a crack trafficking case. She raised on appeal a host of constitutional and statutory challenges to her sentence, claiming that it violated § 3535(a), the Eighth Amendment, and equal protection, in light of the powder-vs-crack sentencing disparities.

The court held that these claims were waived by the appellate waiver in Lee’s plea agreement. Although such waivers will not be enforced when an “arguably unconstitutional” consideration influenced the sentencing, there was no such consideration here. The equal protection argument with respect to crack sentences is a claim about the statute itself, not a claim that the court considered an improper factor at sentencing. Moreover, the court rejected the equal protection statutory argument nearly fifteen years ago, and no subsequent legal development – including Kimbrough …

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Saturday, April 12th, 2008

For Your Consideration

United States v. Hardwick, No. 04-1369-cr (2d Cir. April 11, 2008) (Winter, Walker, Sotomayor, CJJ)

Glen Hardwick was convicted after a jury trial of conspiracy to commit and aiding/abetting murder-for-hire in violation of 18 U.S.C. § 1958. Virtually all of the evidence of the “consideration” element of the offense came from the plea allocution of Hardwick’s brother, which was admitted into evidence over objection, although not a Confrontation Clause objection. The appellate court held that this Sixth Amendment violation was plain error, but that there was legally sufficient evidence on this element. It accordingly did not reverse the conviction; it vacated and remanded for a new trial.

Facts: Most of the action here involved Glenn Hardwick’s brother, Stacey, who had an ongoing drug and gun trafficking relationship with an undercover police officer. At one point, Stacey contacted the UC and asked him to kill someone who had pulled a gun …

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Wednesday, April 9th, 2008

Next Stop, Confusion

United States v. Hendry, No. 06-5118-cr (2d Cir. Aprl 9, 2008) (Leval, Calabresi, Wesley, CJJ) (per curiam)

In this decision the Court blows yet another opportunity to clarify the “fast-track” sentencing issue in illegal reentry cases.

The court has already held that district courts are not required to take into account the lower sentences imposed in fast track districts, but has left open the question whether a court has the authority to do so if it deems a reduced sentence warranted. This decision still seems to leave the question open. Here, although Hendry argued that the district judge erroneously believed that he could not consider the absence of a fast-track program in deciding what sentence to impose, the circuit found that the district judge believed that he could consider it – although he elected not to do so – and the opinion does not say whether the judge’s belief was …

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Tuesday, April 8th, 2008

SUMMARY SUMMARY

Here are three more s/o’s to chew on:

In United States v. Glum, No. 06-3099-cr (2d Cir. April 8, 2008), the court ordered a Crosby remand even though the district court, when denying the defendant’s pro se 2255 motion, had already indicated that it would impose the same sentence.

In United States v. Ogman, No. 06-0203-cr (2d Cir. April 7, 2008), the court refused to order a Regalado remand in a crack case where the defendant was sentenced as a career offender. Here, the Guideline range was “not the result of the 100-to-1 powder to crack ratio, but rather resulted from [defendant’s] undisputed status as a career offender.”

In United States v. Ruiz, No. 06-5609-cr (2d Cir. April 1, 2008), the court held that the defendant’s sentencing appeal was barred by the waiver contained in the plea agreement, even though it was “not entirely clear that the sentencing judge complied …

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Friday, April 4th, 2008

Consecutive Privilege

United States v. Donoso, No. 07-0635-cr (2d Cir. April 3, 2008) (McLaughlin, Hall, CJJ, Sand, DJ) (per curiam)

Resolving an open question in this circuit, the court here holds that, under 18 U.S.C. § 3584(a), a district judge cannot order the federal sentence to run consecutively to another sentence that has not yet been imposed.

Facts: Richard Donoso violated his federal supervised release by committing a state offense. He pled guilty in state court, then came into federal court and admitted the supervised release violation. Judge Spatt sentenced him to 24 months’ imprisonment and ordered it to run consecutively to the state sentence. Donoso was not sentenced in the state case, however, until the next day. A few days later, Judge Spatt recalled the case, questioning whether he had the power to impose a consecutive sentence before the state sentence had been imposed. Invoking Fed.R.Cr.Proc. 35(a), and over objection, he …

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Thursday, April 3rd, 2008

Medicareless

United States v. Wexler, No. 06-1571-cr (2d Cir. April 3, 2008) (Miner, Raggi, CJJ, Rakoff, DJ)

David Wexler was a Manhattan dermatologist who ran a prescription mill. He would prescribe painkillers to patients whom he did not examine or treat, often with the understanding that either the prescriptions or the medications would be sold to others. The prescription mill was also the fuel for an ongoing Medicare fraud in which he would, for these same patients, bill the government for multiple procedures that he did not perform. Wexler was convicted after a jury trial of narcotics and fraud counts and was sentenced principally to 20 years’ imprisonment. On appeal, the majority of a divided panel reversed his conviction on the most serious drug count, concluding that the evidence was insufficient, and remanded the case for resentencing.

Wexler had a patient named Barry Abler, for whom he wrote numerous prescriptions for …

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Monday, March 31st, 2008

4(b) and After

United States v. Frias, No. 06-5381-cr (2d Cir. March 31, 2008) (Cardamone, Sack, Katzmann, CJJ)

The ten-day time for filing a notice of appeal in a criminal case under Fed.R.Ap.Proc. 4(b) is not jurisdictional, which means that the court can consider an untimely appeal if the government forfeits a claim of untimeliness failing to raising it.

For many years, both the Second Circuit and the Supreme Court were somewhat careless in using the term “jurisdictional” in the context of time limits and filing deadlines, collectively known as “claim processing rules.” However, a string of Supreme Court cases in the past few years has clarified the terminology: since only Congress can determine a lower federal court’s subject matter jurisdiction, only those claim processing rules that have statutory origins are truly “jurisdictional.” Thus, for example, the seven-day deadline for filing a motion for a new trial under Fed.R.Crim.P. 33(a) is not jurisdictional …

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Thursday, March 27th, 2008

Summary Summary

It has been a slow week in Foley Square – lots of civil and immigration decisions, but not too much on the criminal front. So, here are some recent summary orders of interest:

In United States v. Williams, No. 06-5530-cr (2d Cir. March 27, 2008), the court dealt with an unusual circumstance in this circuit – an illegal reentry jury trial. The court rejected several case-specific evidentiary claims, but also touched on – without resolving – an interesting and important question: is the defendant’s claim of derivative citizenship an affirmative that he bears the burden of proving, or must the government disprove the possibility of derivative citizenship beyond a reasonable doubt?

Title 18 U.S.C. § 3664(h) permits the sentencing judge to apportion restitution liability among defendants based both on their economic circumstances and level of contribution to the loss. In United States v. Rammelkamp, No. 06-4359-cr (2d Cir. March 19, …

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