United States v. Borden, No. 08-1625-cr (2d Cir. April 22, 2009: amended opinion) (Cabranes, Hall, CJJ, Sweet, DJ) Every other circuit to consider the question has concluded that a district court’s denial of a crack retroactivity motion under 18 U.S.C. § 3582(c)(2) is reviewed for abuse of discretion. With this decision, the Second Circuit joins … Read more
United States v. Abdulle, No. 06-3647-cr (2d Cir. April 22, 2009) (Newman, Sotomayor, Katzmann, CJJ) Defendant Mohamed was convicted of distributing cathinone, the active ingredient in khat leaves, and challenged the sufficiency of the evidence against him. The circuit affirmed. The difficulty, as always in khat cases, is the complex regulatory scheme for this substance. … Read more
United States v. McCourty, No. 07-3862-cr (2d Cir. April 9, 2009) (Miner, Sotomayor, Katzmann, CJJ) Background At McCourty’s drug trial, one of the counts in the indictment alleged that he possessed with the intent to distribute both a quantity of cocaine and more than five grams of crack. The facts underlying this count were unusual: … Read more
United States v. Josephberg, No. 07-3958-cr (2d Cir. April 9, 2009) (Kearse, Sack, Katzmann, CJJ) Background – Multiple Acts of Tax Fraud and Evasion A “straddle” is a type of tax shelter transaction involving the simultaneous ownership of a contract to buy a commodity for delivery in a future month and a contract to sell … Read more
United States v. Marte Robles, No. 07-1013-cr (2d Cir. April 9, 2009)(Straub, Hall, CJJ, Eaton, DJ)(per curiam) In this case, the court was called upon to construe Application Note 4 to U.S.S.G. § 1B1.2. Section 1B1.2(d) provides that a “conviction on a count charging a conspiracy to commit more than one offense shall be treated … Read more
United States v. Hertular, No. 07-1453-cr (2d Cir. April 6, 2009) (Straub, Raggi, CJJ, Session, DJ) Robert Hertular was convicted after a jury trial of running a large-scale cocaine importation ring, obstruction of justice, and misdemeanor assault of a federal officer under 18 U.S.C. § 111. He was sentenced to 400 months’ imprisonment on the … Read more
United States v. Kopp, No. 07-797-cr (2d Cir. April 6, 2009) (Kearse, Katzmann, CJJ, Chin, DJ) (per curiam) James Charles Kopp was sentenced to life plus ten after a jury convicted him of killing an abortion provider, in violation of 18 U.S.C. § 248, and discharging a firearm in connection with a crime of violence. … Read more
Here’s the latest crop: In United States v. Ramirez, No. 08-2771 (2d Cir. April 1, 2009), the district court committed a procedural sentencing error in the defendant’s favor by refusing to calculate the applicable Guideline range based on the actual drug quantity and instead deferring to the jury’s finding that less than 500 grams of … Read more
United States v. Samas, No 05-5213-cr (2d Cir. March 24, 2009) (Jacobs, Wesley, Hall, CJJ) (per curiam) This case was originally decided by summary order in December of 2009. On the government’s motion, the court withdrew the summary order and issued this published decision in its place. The decision resolves two recurring claims with respect … Read more
So far, there have been three summary orders of note in March. Let’s take a look. In United States v. Alkhabbaz, No. 07-4679-cr (2d Cir. March 23, 2009), the defendant was convicted of fraud and money laundering offenses. The circuit held that it was error to impose a sentence enhancement for using a minor, since … Read more