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. … Read more
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 … Read more
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 … Read more
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 … Read more
United States v. Dominguez, No. 05-7005-cr (2d Cir. February 15, 2008, amended March 20, 2008) (Miner, Sack, Hall, CJJ) Last month, when we wrote up this case, we noted with alarm the circuit’s holding that, for cases where the defendant faced a mandatory minimum but provided substantial assistance to the government, under § 3553(e) “any … Read more
United States v. Sero, No. 05-6967-cr (2d Cir. March 19, 2008) (per curiam) Defendant Sero, who pled guilty to illegally exporting weapons to the Philippines, challenged his sentence. In doing so, he gave the court its first opportunity to consider U.S.S.G. § 2M5.2 and its “bump-down.” This particular Guideline ordinarily calls for a base offense … Read more
United States v. Cutler, No. 05-2516(L) (2d Cir. March 17, 2008) (Jacobs, Kearse, Pooler, CJJ) In this case, the government successfully appealed the exceptionally lenient sentences that Judge Preska imposed on two defendants convicted of a multi-million dollar fraud. The circuit found that the sentences were both procedurally and substantively unreasonable, and remanded the case … Read more
United States v. Tran, No. 05-5644-cr (2d Cir. March 10, 2008) (Sack, Sotomayor, Hall, CJJ) Defendant Tran was stopped by customs officers while crossing the border from Canada, ostensibly to go to a casino in New York. Customs agents found several bags of pills hidden in the interior roof lining of his rented car, but … Read more
United States v. Regalado, No. 05-5379-cr (2d Cir. March 4, 2008) (Jacobs, Pooler, Sack, CJJ) (per curiam) At last, the circuit has told us what to do in light of Kimbrough. And the answer is, in essence, a Crosby remand. Regalado received a 262-month crack sentence, the bottom of the Guideline range (he was not … Read more
United States v. Sanchez, No. 05-3812-cr (2d Cir. February 29, 2008) (Kearse, Straub, Pooler, CJJ). In this long opinion, the court considered several challenges to recidivist sentences in a drug case. Two defendants, both “career offenders” under Guidelines section 4B1.1, got relief. A third, sentenced to an enhanced mandatory minimum, did not. Career Offender Title … Read more