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Federal Defenders of New York Second Circuit Blog


Saturday, March 14th, 2009

Global Warming

United States v. Yauri, No. 08-1105-cr (2d Cir. March 12, 2009)(Sack, Wesley, CJJ, Kahn, DJ) (per curiam)

In Yauri’s money laundering plea agreement, the government agreed to a two-level reduction for a “global disposition” and to a loss amount of “more than $30,000.” His presentence report, however, recommended guidelines calculation based on a loss of more than $154,000 and omitted the global disposition reduction. At sentencing, his counsel, who had not attended the plea hearing, did not object to the omission of the global reduction, and agreed that the loss amount in the presentence report was correct, despite the language in the plea agreement and the fact that Yauri had not allocuted to a specific loss amount.

On appeal, he argued that his counsel was ineffective, and the government agreed, but only with respect to the failure to call the court’s attention to the global disposition reduction. The court agreed, …

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Same Claim, Different Day

United States v. Pitcher, No. 05-3182-pr (2d Cir. March 11, 2009) (Wesley, Hall, CJJ, Oberdorder, DJ) (per curiam)

In 1999, Pitcher went to trial on a heroin distribution charge. He was convicted, sentenced to 121 months’ imprisonment, and appealed. In a 2001 summary order, the court of appeals rejected his claim that his counsel had been ineffective for counseling him to reject the government’s efforts to sign him up as a cooperator, and affirmed. The court held that any deficiency in counsel’s advice was attributable to Pitcher’s own dishonesty in dealing with his attorney.

In 2004, Pitcher filed a § 2255 motion arguing that he would have received a much shorter sentence had his counsel not misinformed him about the risks of going to trial and the benefits of cooperating. After an evidentiary hearing, the district court granted the motion, vacated the sentence and resentenced Pitcher to time served. The …

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Rehearing Loss

United States v. Owen, No. 07-4966-cr (2d Cir. March 9, 2009) (Feinberg, Cabranes, Hall, CJJ)

Defendant Owen has had a Rule 33 motion pending in the district court for quite some time. This is circuit’s third opinion in the case. In the first, Owen I, it held that the district court erred in granting the motion based on newly discovered evidence, but remanded for consideration of an ineffectiveness claim. See “33 Skidoo” posted September 25, 2007. In the second, Owen II, the court held that a “protective” notice of appeal, filed after the remand, was not effective, and agreed to hold the appeal in abeyance pending the district court’s resolution of the Rule 33 motion. See “On Hold,” posted January 19, 2009. Here, the court disposes of the government’s motion for panel rehearing of Owen II, in which the government claimed, for the first time, that the Rule 33 motion …

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Coffe, Tea or Jail?

United States v. Delis, No. 08-0641-cr (2d Cir. March 5, 2009) (McLaughlin, Calabresi, Livingston, CJJ)

On a flight from Zurich to JFK, Pierre Delis, upset that the meal service ran out of chicken, got into a scuffle with a flight attendant during which, at a minimum, he pushed her hand away from his face. He was charged with simple assault, in violation of 18 U.S.C. § 113(a)(5), and his defense was a lack of intent to injure. After a bench trial, a Magistrate Judge convicted him, holding that intent to injure was not an element of the offense, and finding that Delis had the intent to “engage in an offensive touching.” He appealed first to the district court, which affirmed, and then to the circuit, which affirmed as well.

Section 113(5) criminalizes “simple assault,” a term with common-law origins. At common law, a battery was the “unlawful application of force …

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Off-Whitley

United States v. Williams, No. 07-2436-cr (2d Cir. March 5, 2009) (Pooler, Hall, CJJ, Trager, DJ)

Title 18 U.S.C. § 924(c) provides for consecutive mandatory minimum sentences for the use or possession of a firearm in connection with a drug offense or crime of violence except “to the extent that a greater minimum sentence is otherwise provided by … any other provision of law.” In United States v. Whitley, 529 F.3d 150 (2d Cir.), reh’g denied, 540 F.3d 87 (2d Cir. 2008), the defendant received a fifteen-year mandatory minimum under the Armed Career Criminal Act, and a five-year consecutive 924(c) sentence. The court held that the “except” clause exempted the defendant from the 924(c) sentence, since he was subject to a greater minimum on the ACCA count. Whitley left open whether the “except” clause applied to non-firearms offenses. Here, a different panel, following Whitley, answered that question with a resounding …

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Trust Fun

United States v. Friedberg, No. 08-3763-cr (2d Cir. March 2, 2009) (Pooler, Katzmann, CJJ, Preska, DJ)

Daniel Friedberg was Grand Secretary of an Odd Fellows lodge for eighteen years. During that time, he embezzled nearly $600,000 of the organization’s funds. He also failed to pay tax on the money, and ultimately pled guilty to tax evasion. At sentencing, over his objection, the court imposed a two-level enhancement for abuse of trust, over his objection.

The circuit affirmed. Friedberg conceded that he abused a position of trust with respect to the Odd Fellows, but argued that he did not occupy a position of trust with respect to the government, which was the primary victim of the tax evasion. But the circuit pointed out that the commentary to the abuse-of-trust guideline requires consideration the relevant conduct, not just the elements and acts cited in the count of conviction.

The embezzlement was clearly …

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Monday, March 2nd, 2009

Summary Summary

February turned out to be an interesting month for summary orders. Here are the final four:

In United States v. Santillo, No. 08-4378-cr (2d Cir. February 26, 2009), the court upheld the imposition of a year-and-a-day prison sentence even though both the defendant and the government had stipulated to a sentence of five years’ probation.

In United States v. Navarro, No. 08-0484-cr (2d Cir. February 26, 2009), the court held that the government did not breach its plea agreement by advocating for a Guideline sentence in response to the defendant’s request for a downward variance. The government had promised not to take a position concerning where within the range the court should impose sentence, and merely asking for a within-Guideline sentence was permissible.

In United States v. Bossinger, No. 07-5718-cr (2d Cir. February 25, 2009), the court found “merit” to the defendant’s claim of prosecutorial misconduct in summation. The prosecutor …

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Wednesday, February 25th, 2009

Let The Burglar Beware

United States v. Johnson, No. 08-2296-cr (2d Cir. February 25, 2009) (Cabranes, Wesley, CJJ, Korman, DJ) (per curiam)

Defendant Johnson stole a firearm during a burglary, and pled guilty to being a felon in possession of that same gun. At sentencing, he received a four-level enhancement for possessing it in connection with “another felony,” the burglary. The district court based the enhancement on a 2006 application note that provides that the “another felony” enhancement applies where a defendant finds and takes a firearm during a burglary. Johnson argued that this violated the Ex Post Facto clause, since his offense occurred before the application note was promulgated.

The circuit affirmed. The application note was added to the guidelines to resolve a circuit split on the applicability of the enhancement, and was intended merely to “clarify” that it applied to burglaries involving the theft of firearms. The note neither “altered the law …

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Tuesday, February 24th, 2009

Re: Possessed

United States v. Ayon-Robles, No. 07-0785-cr (2d Cir. February 24, 2009) (Jacobs, Wesley, CJJ, Arcara, DJ) (per curiam)

Recently, in an immigration case, Alsol v. Mukasey, 548 N.Y.S.2d 207 (2d Cir. 2009), the court held that a second state-court conviction for simple drug possession was not an “aggravated felony” under the relevant immigration statute, 8 U.S.C. § 1101(a)(43), because it did not satisfy the statutory definition of “drug trafficking crime[].” See Simply Possession, posted 11/29/08.

The court’s decisions in this area have been confusing, however. The illegal reentry guideline, U.S.S.G. § 2L1.2, incorporates the same statutory definition, but the court has in some cases suggested that it might interpret that provision differently in the sentencing context. This case appears to have put that confusion to rest. Here, the court held that since the guideline specifies that the term “aggravated felony” has the “meaning given that term in [8 U.S.C. 1101(a)(43)],” …

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Sunday, February 22nd, 2009

Flaw-Of-The-Case

United States v. Carr, No. 06-5490-cr (2d Cir. February 19, 2009) (Kearse, Sack, Kaztmann, CJJ)

Carr was convicted after a jury trial of racketeering, drug and firearms offenses. At his original sentencing, since the racketeering predicate was murder, the then-mandatory guidelines prescribed a life sentence, and that is what he received, plus five years on a § 924(c) count. On Carr’s first appeal, the court affirmed his convictions and the district court’s guidelines calculations, but ordered a Crosby remand.

On remand, the court resentenced him to forty years’ imprisonment: five years on the gun count consecutive to thirty-five on the racketeering counts. On his second appeal, Carr tried to get the circuit to revisit the district court’s guideline calculations, even though they had been affirmed on his first appeal, arguing that the law-of-the-case doctrine should not apply where the district court imposed a different sentence after a Crosby remand.

The …

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