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United States v. Jenkins, Docket No. 05-2679-cr (L) (2d Cir. June 23, 2006) (Meskill, Cabranes, Wesley): This case was litigated by attorneys from this Office, so this Blog will stick mostly to description.

The Court holds that when police stop a vehicle based on a reasonable but mistaken belief that a law has been violated, they may “briefly” approach the driver to explain their error and are not required by the Fourth Amendment to allow the vehicle to depart immediately upon realizing their error. Here, the police stopped the SUV in which the defendants were traveling based on a reasonable belief that the vehicle did not have a license plate, in violation of state law. However, when the officers got out of their car and approached the SUV, they realized that the car did in fact have a temporary license on the back, which was “hard to see …

United States v. Ramirez, Docket No. 05-4575-cr (2d Cir. June 23, 2006) (Meskill, Cabranes, Wesley) (per curiam): The title basically says it all. In this very short opinion, the Circuit confirms that Booker does not alter the long-standing rule that “the filing of a prior felony information under [21 U.S.C.] § 851(a)(1) ‘is required only where the statutory maximum or maximum penalty under Part D of Title 21 is sought to be enhanced, not where a defendant, by virtue of his criminal history, receives an increased sentence under the Sentencing Guidelines within the statutory range.'” Op. 3 (quoting United States v. Whitaker, 938 F.2d 1551, 1552 (2d Cir. 1991) (emphases in original)). Here, Ramirez faced a Guidelines range of 151 to 188 months because he qualified as a Career Offender under U.S.S.G. § 4B1.1, based on prior convictions not alleged in the indictment (charging him with …

Policano v. Herbert, Docket No. 04-5518-pr (2d Cir. June 21, 2006) (Pooler, Sack, Garaufis (by desig’n) (per curiam)): In the original panel opinion (issued November 2005), Policano v. Herbert, 430 F.3d 82 (2d Cir. 2005) (click here for our discussion), Judge Sack granted the habeas writ to Policano after concluding that the evidence at trial was insufficient to sustain his conviction for depraved-indifference murder under N.Y. Penal Law § 125.25(2), since the evidence showed that if Policano was the shooter, he intentionally murdered the victim but did not “recklessly create[] a risk of [his] death,” as required by current New York law on depraved-indifference murder. See People v. Payne, 3 N.Y.3d 266 (2004); People v. Gonzalez, 1 N.Y.3d 464 (2004). Neither party petitioned for rehearing or rehearing en banc of the panel’s decision.

Nonetheless, the panel has withheld the mandate in the …

United States v. Riley, Docket No. 0-1585-cr (2d Cir. June 21, 2006) (Kearse, Miner, Cabranes): This decision upholds the imposition of a 2-level obstruction enhancement under U.S.S.G. § 3C1.1, even though the defendant’s obstructive conduct appeared to have occurred before the Government began its investigation (and a fortiori its prosecution) of the defendant for the “instant offense of conviction,” i.e., being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Section 3C1.1 requires, among other things, that the defendant’s obstructive conduct occur “during the course of the investigation, prosecution, or sentencing of the instant offense of conviction.” Here, the evidence (as recounted in the opinion) showed that while Riley clearly engaged in conduct that qualifies as obstructive (i.e., telling his girlfriend to hide and/or dispose of his guns), this occurred when no charge concerning his possession of …

United States v. Rattoballi, Docket No. 05-1562-cr (amended opinion June 21, 2006) (Walker, Winter, Jacobs): Yesterday, the panel in Rattoballi (click here for our critique of the original opinion) sua sponte issued an amended opinion. However, because the Circuit (1) never informs its readers what portion(s) of the original opinion has been altered in an amended opinion; (2) the original opinion has been replaced on the Circuit’s website with the amended one; and (3) this Blog already consigned its paper copy of the original opinion to the recycling bin of bad decisions, a concern arose that only memory itself could tease out what is new in the amended opinion. Fortunately, Westlaw has yet to replace the original opinion with its amendment, so those with the time and patience can compare and contrast the two.

This Blog’s morning perusal reveals little new in the amended opinion; most of …

United States v. Jimenez, Docket No. 05-2221-cr (2d Cir. June 5, 2006) (Walker, Newman, Sotomayor) (per curiam):

(By James Stull, rising 2-L at Stanford Law School and intern at FDNY)

The safety valve remains difficult to open for defendants convicted of drug offenses under 21 U.S.C. §§ 841, 844, 846, 960, and 963. In an opinion by Chief Judge Walker, the Circuit affirms a district court’s ruling that Booker does not shift the burden of truthful disclosure, required for safety-valve relief, to the prosecution to prove beyond a reasonable doubt. While Jimenez fulfilled four of the five factors required by § 3553(f) for safety-valve relief, at issue is the fifth factor, namely whether Jimenez revealed to the Government all relevant facts of the “offense or offenses that were part of the same course of conduct or of a common scheme or plan,” and, if not, whether it was his …

United States v. Francis Boccagna, Docket No. 04-5099-cr (2d Cir. June 13, 2006) (Jacobs, Sack, Raggi):

(By Lara Samet, rising 2-L at NYU Law School and intern at FDNY)

Boccagna ran an intricate scheme. Distilled to its essentials, he made false statements to procure loan guarantees from the Department of Housing and Urban Development (HUD), purchased properties after obtaining those guarantees, and then quickly resold the properties for a profit. Unfortunately, the scheme proved too intricate even for him and eventually unraveled. Boccagna confessed to the authorities and later pleaded guilty.

By the time Boccagna’s crime was discovered, many of the 162 properties at issue were in foreclosure proceedings. HUD ultimately acquired title to approximately one-third of these by paying the outstanding loan balances and other out-of-pocket expenses. HUD suffered $20.6 million in losses as a result of Boccagna’s misconduct.

Instead of reselling the properties on the open …

United States v. Kane, Docket No. 05-2714-cr (2d Cir. June 19, 2006) (Meskill, Straub, Katzmann) (per curiam): This opinion primarily holds that while a sentencing court may not rely on a defendant’s abstract beliefs (or writings) for the purpose of demonstrating that those beliefs / writings (and by extension the defendant) are “morally reprehensible” (and thus deserving of greater punishment), Op. 5, a court may properly consider such beliefs and writings when they rebut the defendant’s mitigating evidence. Following Fernandez, the opinion also holds that the Circuit has jurisdiction to review a claim that the defendant’s below-the-range sentence (of 24 months, down from the 30 to 37 months advisory range) was unreasonable. Finally, the opinion quickly upholds that sentence against an unreasonableness challenge, quoting Fernandez for the proposition that “reasonableness review does not entail the substitution of our judgment for that of the sentencing judge” and …

United States v. Rattoballi, Docket No. 05-1562-cr (2d Cir. June 15, 2006) (Walker, Winter, Jacobs): Someone please wake us up: We read this opinion and had a nightmare that we lived either in another Circuit or in an alternate universe in which Booker had never happened. In an extraordinary act of law-making that flouts Booker and contradicts core post-Booker caselaw in the Second Circuit, including Crosby and Fernandez, C.J. Walker, along with former and future C.J.s Winter and Jacobs, writes as if on a clean slate (and as if this were the 7th or 8th Circuits rather than the 2nd) and overturns, for the first time since Booker was decided 17 months ago, a sentence as substantively unreasonable (i.e., just too short). Cynics will not be surprised that this occurred on a Government appeal of a below-the-range sentence, rather than a defendant’s appeal of an …

Earley v. Murray, Docket No. 04-4098-pr (2d Cir. June 9, 2006) (Walker, Leval, Sotomayor): This seems an easy case, though the learned district judge somehow got it wrong. The Circuit (by the Chief, no less) reverses the district court and grants the writ to the habeas petitioner, concluding that state courts acted contrary to clearly established Supreme Court law (i.e., Hill v. U.S. ex rel. Wampler, 298 U.S. 460 (1936)) when they upheld the Department of Correctional Services’s (“DOCS”) unilateral post-sentencing decision adding a 5-year term of post-release supervision to Earley’s sentence, even though the sentencing judge did not impose such a term either at sentencing or in the written judgment of conviction. Wampler held that “the only sentence known to the law is the sentence or judgment entered upon the records of the court” and that “until corrected . . . it says …

Howard Bashman (of the must-read How Appealing blog) wrote this critique of the Second Circuit’s website in a recent article for law.com ranking the websites of the various federal Circuits:

“My final bit of criticism is reserved for the New York City-based 2nd U.S. Circuit Court of Appeals, which allows visitors to access newly issued opinions via three types of searches. Unfortunately, those different methods often produce different results. There’s no reason why an appellate court’s Web site should require users to perform three searches to ensure that they have seen all newly issued opinions. The 2nd Circuit’s site is alone among the federal appellate courts in creating this potentially confusing situation.”

(Click here for the entire article). Unlike some courts, moreover, the Second Circuit’s website does not allow on-line access to briefs (contra the 7th and 8th Circuits) or allow users to hear audio recordings of oral arguments …