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” … Read more
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 … Read more
The court has only issued 2 published opinions in criminal cases in the past two weeks. But there has been a flurry of noteworthy summary orders. Here is the latest crop: In United States v. Creary, No. 06-2233-cr (2d Cir. May 27, 2008), a document fraud case, the court vacated the sentence because the district … Read more
United States v. Ellett, No. 07-3682-cr (2d Cir. May 23, 2008) (per curiam) James Ellett was a tax protester, who stopped paying his federal income tax after reading a book called “Vultures in Eagle’s Clothing,” which purported to describe a lawful way of avoiding taxes. He claimed to have read the book more than 100 … Read more
United States v. Douglas, No. 06-0581-cr (2d Cir. May 13, 2008) (Kearse, Katzmann, CJJ, Rakoff, DJ) Douglas was convicted of killing a Brink’s employee while attempting to steal money from Citibank ATMS that were serviced by Brink’s. He was sentenced to life in prison. Douglas had originally been appointed a federal defender. But, once he … Read more
United States v. Martinez, No. 06-5502-cr (2d Cir. May 9, 2008) (per curiam). In this brief per curiam, the court reaffirms that there is only one quantum of proof necessary for sentencing enhancements post-Booker – the preponderance standard. Specifically, the court rejected Martinez’ argument that where the enhancement requires the sentencing judge to determine that … Read more
United States v. Desinor, No. 05-4500-cr (2d Cir. May 8, 2008) (Walker, Straub, Hall, CJJ) This prosecution arose from a murderous rivalry between two drug gangs. One, the “Cream Team” (footnote 1 of the opinion, which explains the derivation of this name, is a must-read), was populated largely by the defendants on trial. The rival … Read more
United States v. Rattoballi, No. 06-5881-cr (2d Cir. May 8, 2008). Rattoballi faced a guideline range of 27 to 33 months’ imprisonment but received a noncustodial sentence. The government appealed, and, in a published decision, the court vacated the sentence. This summary order affirms the 18-month prison sentence imposed on remand. The sentence was reasonable, … Read more
United States v. Iodice, No. 06-2680-cr (2d Cir. May 6, 2008) (Straub, Pooler, Sotomayor, CJJ). John Iodice appealed his arson conviction on the ground that there was insufficient evidence of the requisite nexus to interstate commerce. The circuit affirmed. The building that Iodice torched had been, at one time, a diner. Its owner had purchased … Read more
United States v. Eberhard, No. 05-3431-cr (2d Cir. May 5, 2008) (Jacobs, Calabresi, Sack, CJJ) Todd Eberhard, a former stock broker, pled guilty to various fraud charges. Under his plea agreement, the stipulated guideline range was 97 to 121 months’ imprisonment. The presentence report added a 4-level aggravating role enhancement, but then recommended a below-guidelines … Read more