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United States v. Barraza, Docket No. 05-1454-cr (2d Cir. May 2, 2006) (Walker, Leval, Sotomayor): It’s hard to believe that this isn’t a settled issue in the Circuit, but apparently it’s not. In this opinion, the Court rules that for purposes of determining whether a defendant qualifies for safety-valve relief under § 5C1.2, as well as for the 2-level reduction under § 2D1.1(b)(9), a finding that the defendant constructively possessed a firearm, “based on his personal dominion and control over that weapon,” Op. 7 (emphasis in original), renders the defendant ineligible for such relief under § 5C1.2(a)(2) (listing as one requirment for safety-valve relief that “the defendant did not . . . possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense.”). The Court reasoned that since constructive possession is as good as actual possession in every other context, …

United States v. Wallace, Docket No. 03-1777 (L) (2d Cir. April 27, 2006) (Walker, Cardamone, Parker): The Circuit disposes of most of Wallace and co-defendant Thomas’s challenges to their conviction and life sentences (imposed on the drug conspiracy and murder-during-a-drive-by-shooting counts) in a simultaneously issued summary order. In this published decision, the Court vacates one of two § 924(c) convictions, applying the rule adopted in United States v. Finley, 245 F.3d 199, 207-08 (2d Cir. 2001) (“[C]ontinuous possession of a firearm in furtherance of simultaneous predicate offenses consisting of virtually the same conduct” amounts to a single unit of prosecution, and thus only one § 924(c) conviction is sustainable). The application of Finley to the facts of this case is questionable — the predicates for the two § 924(c) counts were an arguably distinct drug conspiracy and a drive-by-shooting (committed after the unfortunate victim stole drugs from …

We recently received a copy of a letter written by the Criminal Division of the Department of Justice, addressed to the Clerk of the First Circuit, in which the Government adopts the position — directly contrary to its earlier view — that Fed. R. Crim. P. 32 requires prior notice to the parties if a court intends to exceed the Guidelines range at sentencing, whether via a traditional departure or via a consideration of the § 3553(a) factors pursuant to Booker. As the Government writes, “the sentencing court does have an obligation to provide prior notice before deviating from the Guidelines range on a ground that was not identified in the presentence report or by the parties. . . . [A] district court should provide notice to the parties when it is contemplating a sua sponte deviation (whether upward or downward) from the advisory Guidelines range.” Letter at 1-2.…

United States v. Reifler, Docket No. 03-1244 (L) (2d Cir. April 18, 2006) (Kearse, Jacobs, Calabresi): Guest Blogger wanted: Anyone wishing to throw in his or her 2 cents about this 164 page opinion should email me. I can’t even make myself print it out, much less read it. (At least this week …)

But sentencing fans can skip to page 104 of the opinion to see the Court reject, at long last, an Apprendi-Ring-Blakely-Booker challenge to the restitution order (which includes amounts not found by a jury or admitted by the defendant). The first two arguments proffered by the Court are plain bizarre — non-sequiturs, really — and the third is simply a repeat of the post-hoc rationale first invented in Fruchter (that the Apprendi rule does not apply to restitution because there is no “maximum” under the restitution statute).…

United States v. William Hayes, Docket No. 05-2321-cr (2d Cir. April 18, 2006) (Winter, Calabresi, Pooler): The Circuit upholds a lifetime supervised release term imposed upon Mr. Hayes, who pled guilty to transporting child porn in interstate commerce in violation of 18 U.S.C. § 2252A. That Hayes must first serve 151 months in prison and will be 68 years old by the time of his release did not require a different result. In upholding the sentence, the Circuit relied inter alia on (1) the policy statement in Section 5D1.2(b)(2) (recommending the statutory maximum term of supervised release where the defendant is convicted of a sex offense); (2) the fact that Hayes was convicted in state court of molesting a 12-year-old girl more than a year after the events underlying the federal case; and (3) a Congressional finding that sex offenders are far more likely to recidivate than other …

United States v. John Doe, Docket No. 04-5677-cr (L) (2d Cir. March 27, 2006) (Cardamone, Sack, Casey (by desig’n)): This decision does not appear to break new ground in remanding the case back to the district court for an evidentiary hearing on whether the Government’s refusal to file a § 3553(e) / § 5K1.1 letter was made in bad faith. In United States v. Knights, 968 F.2d 1483, 1488 (2d Cir. 1992), the Court sensibly ruled that the Government cannot refuse to file a 5K letter on the basis of facts known to it at the time the agreement was executed. As the Court explained there, “Not only would it be unfair for the government to rely upon . . . known, pre-agreement circumstances as reasons for not moving [under 3553(e) / 5K], it would have been fraudulent to have induced a defendant’s plea with a …

United States v. Jermi Francisco Lopez, Docket No. 03-1476-cr (2d Cir. April 4, 2006) (Sack, Sotomayor, Raggi):

Where an element of a crime, in this case a prior deportation, depends on an administrative finding, due process requires that that finding have been subject to judicial review, to ensure its accuracy and make it a proper basis for criminal sanctions. See United States v. Mendoza-Lopez, 481 U.S. 828 (1987); 18 U.S.C. § 1326(d). In this case, the defendant had sought dismissal of his illegal reentry indictment on the ground that he had been denied judicial review of his deportation by misinformation given him at his hearing and by the Immigration Judge’s failure to advise him of the availability of collateral relief by habeas corpus. In 1997, just at the time of amendment of new immigration laws eliminating much of the existing discretionary relief for deportation, the defendant had …

United States v. Mayra Fernandez, Docket No. 05-1596-cr (2d Cir. April 3, 2006) (Miner, Cabranes, Curtin (by desig’n)): This important decision settles some lingering uncertainties concerning post-Booker appellate review of sentences in this Circuit. Some of the Court’s conclusions are good from a defense perspective, some not so good. But there’s a benefit to clarity all the same.

First, the Court finally explicitly holds that it possesses statutory authority to review the reasonableness of any sentence, even those falling within a properly calculated Guidelines range. (Fernandez received a sentence of 151 months, the bottom of the correctly calculated range). The Court explains that when a defendant challenges a sentence on appeal as unreasonable (either as to the process of its selection or as to its length), s/he “effectively claims that the sentence, whether a Guidelines sentence or a non-Guidelines sentence, was ‘imposed in violation of law,'” …

United States v. Charles Novak, Docket No. 05-0108-cr (2d Cir. April 3, 2006) (Sotomayor, Katzmann, Eaton (by desig’n)): This interesting opinion affirms some counts of conviction (e.g., for unlawful receipt of labor payments and for RICO conspiracy), vacates others (e.g., for mail fraud and for making false statements under ERISA), and requests supplemental briefing on the effect of its partial vacatur on the other counts of conviction (e.g., money laundering). This Blog will discuss two issues: (1) whether 29 U.S.C. § 186(b)(1), prohibiting a union official from receiving anything of value from anyone who employs a member of the union, requires proof that the employer knew that the money it gave to an employee would be re-directed (as kickbacks) to the defendant union official; and (2) whether a mail fraud conviction can be sustained where the evidence fails to show that the defendant’s …

U.S. v. Paulino, Docket No. 04-2553-cr (2d Cir. March 29, 2006) (Oakes, Raggi, Wesley):

Having decided a routine Crawford issue in U.S. v. Snype, the Court, again by Judge Raggi, turns in this case to a more complicated situation. The case raises the interesting question whether a court’s instruction to a jury that a hearsay statement is not to be considered for its truth eliminates all Sixth Amendment concerns, even where no alternate purpose for its admission seems obvious, and where the district court’s limiting instruction may not have obviated all need for cross-examination.

The police executed an arrest warrant for the defendant’s father, Adolfo, at Adolfo’s apartment, where the defendant was living. Adolfo gave consent to search, and the officers found cocaine in the hall closet. Adolfo stated, apparently with respect to these drugs, that he owned them and that “no one else was involved in …

Lynn v. Bliden, Docket No. 04-6280-pr (2d Cir. March 30, 2006) (Miner, Raggi, Karas (by desig’n)): The Circuit reverses the district court’s grant of Lynn’s § 2254 petition in this opinion, concluding essentially that there was no Strickland violation because trial counsel’s errors did not create a reasonable probability of a different result. This Blog is skeptical. Although the opinion does not contain enough information to evaluate fully the soundness of this determination, the fact remains that (1) Lynn was convicted solely on the testimony of two alleged eyewitnesses, and (2) counsel’s errors concern (largely) his failure to discredit the eyewitnesses’ testimony by their prior inconsistent statements (in which one witness told the police after the shooting that he could not recognize the shooter, and the other witness failed to select Lynn’s picture from a photo array the first time he was shown an array). But it …