Federal Defenders of New York Second Circuit Blog

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Attempted Assault-2d under New York Law Qualifies as “Violent Felony” under ACCA

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United States v. Walker, Docket No. 05-3851-cr (2d Cir. March 30, 2006) (Straub, Sack, Trager (by desig’n)) (per curiam): Not much to this opinion, which holds that a conviction in New York State for attempted assault in the second degree, in violation of N.Y. Penal Law §§ 110/120.05(2), qualifies as a conviction for a “violent … Read more

Can a Host Consent to the Search of an Overnight Guest’s Closed Luggage? Does Apprendi Require a Jury to Find Facts of an Affirmative Defense?

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United States v. Snype, Docket No. 04-3299-cr(L) (2d Cir. March 17, 2006) (Cabranes, Raggi, Sand): This thoroughly litigated case produced a lengthy opinion touching on important Fourth Amendment, trial, and sentencing issues. These issues ranged from intertwined issues of a “warrantless” search and its fruits, the voluntariness of a consent to search, and the lawful … Read more

Revocation Proceedings Exempt from Jury Trial and Beyond-Reasonable-Doubt Protections of the Sixth Amendment

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United States v. Rasheim Carlton, Docket No. 05-0974-cr (2d Cir. March 24, 2006) (Cardamone, Cabranes, Pooler): This opinion principally rejects an Apprendi and Blakely based Sixth Amendment challenge to the district court’s decision to revoke Carlton’s supervised release and resentence him to 25 months’ imprisonment based solely on the court’s own fact-finding, on a preponderance … Read more

Counsel Must File Notice of Appeal if Client Requests, even if Appeal Waiver Exists

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Campusano v. United States, Docket No. 04-5134-pr (2d Cir. March 23, 2006) (Pooler, Sotomayor, Korman (by desig’n)): A fine opinion that reaches the right result and contains enough praise of the importance of a criminal defendant’s right to appeal to warm the heart of even the most jaded appellate counsel. The issue is simply whether … Read more

Guidelines Enhancement Valid Despite Incorporating by Reference a Now-Repealed Statute

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United States v. Roberts, Docket No. 04-6610-cr (2d Cir. March 23, 2006) (Sotomayor, Raggi, Cedarbaum (by desig’n)) (per curiam): This is an odd one: The Circuit affirms a sentence that included an enhancement under U.S.S.G. § 2K2.1(a)(5), calling for an enhanced base offense level of 18 when the offense “involved a firearm described in 26 … Read more

Revocation Based on Hearsay Upheld Where Defendant Caused Declarant’s Absence by Intimidation

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United States v. Paul Williams, Docket No. 05-0458-cr (2d Cir. March 22, 2006) (Kearse, Miner, Hall): This interesting opinion affirms a judgment revoking Williams’s supervised release and imprisoning him for three years (the statutory maximum). The district court found that Williams violated supervised release by committing a new crime — i.e., by shooting and then … Read more

Prosecutor Blunders, and the District Judge too, but All’s Well, ‘Cause Evidence Was Overwhelming

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United States v. Skelly and Gross, Docket No. 05-4261-cr (L) (2d Cir. March 21, 2006) (Newman, Katzmann, Rakoff (by desig’n)): A rather rambling opinion by one SDNY judge affirming a judgment of conviction rendered by another SDNY judge following a jury trial convicting the two defendants of various counts of securities fraud. The Government’s primary … Read more

Prison Inmate Does Not Forfeit Attorney-Client Privilege

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United States v. DeFonte, Docket No. 06-1046-cr (March 14, 2006) (before Jacobs, Wesley, C.J.J., Koeltl, D.J.) This interesting per curiam decision holds that a prison inmate retains her attorney-client prvilege with respect to a diary that she maintained while incarcerated. Facts: Defendant DeFonte, a (former, presumably) correction officer at the MCC, was on trial for … Read more