United States v. Hurell, No. 06-5653-cr (2d Cir. January 28, 2009) (Kearse, Calabresi, Sack, CJJ) (per curiam) In each of these three consolidated cases, all government appeals, the district court held that New York convictions for burglary in the third degree or attempted burglary in the third degree were not crimes of violence as defined … Read more
Three more quickies: In United States v. Espinal, No. 07-3128-cr (2d Cir. January 21, 2009), there was an inconsistency between the district court’s oral statement of the guideline range and the range contained in the written judgment. The court remanded the case for the “ministerial purpose” of amending the judgment to reflect the actual Guideline … Read more
United States v. McGee, No. 08-1619-cr (2d Cir. January 23, 2009) (Pooler, Raggi, Livingson, CJJ) (per curiam) Darius McGee, convicted of a crack cocaine offense, was a career offender. At his sentencing, however, the district court downwardly departed. It disregarded the career offender guideline range, and sentenced him under the offense level that would otherwise … Read more
United States v. Draper, No. 07-2301-cr (2d Cir. January 20, 2009)(Newman, Calabresi, Sotomayor, CJJ) Defendants Hart and Draper were members of LRP, a drug gang that operated in Brooklyn. In July of 2001, LRP members robbed and murdered a rival. One of the LRP members involved in the killing, Clinton Davy, was picked up and … Read more
United States v. Ionia Management S.A., No. 07-5801-cr (2d Cir. January 20, 2009) (McLaughlin, Calabresi, Livingston, CJJ)(per curiam) In the 1970’s, the United States entered into two international treaties, collectively known as MARPOL, intended to eliminate marine pollution by oil. To give effect to MARPOL, Congress enacted the Act to Prevent Pollution on Ships, 33 … Read more
Dolphy v Mantello, No. 03-2738-pr (2d Cir. January 9, 2009) (Jacobs, Hall, CJJ, Arcara, DJ) At Seth Dolphy’s state-court criminal trial, the prosecutor exercised a peremptory challenge against the only African-American member of the jury panel, and Dolphy raised a Batson challenge. The prosecutor’s supposedly race-neutral explanation for striking the juror was that she was … Read more
United States v. White, No. 07-1180-cr (2d Cir. January 9, 2009)(Kearse, Sack, Livingston, CJJ) Police officers entered Anthony White’s home in response to a domestic violence call. According to the officers, they found him in the bedroom. He was sitting on the bed loading a sawed-off shotgun that was pointed at the doorway where the … Read more
United States v. Owen, No. 07-4966-cr (2d Cir. January 9, 2009)(Feinberg, Cabranes, Hall, CJJ) This decision addresses one of the procedural complexities that can arise when a defendant changes counsel on appeal while post-verdict motions are pending in the trial court. Lance Owen was convicted of a drug offense in the district court. He made … Read more
United States v. Stewart, No. 07-3003-cr (2d Cir. January 8, 2009) (Winter, Miner, Cabranes, CJJ) Brett Stewart was a passenger in a livery cab that stopped at a red light. Two police officers claimed that the cab’s front wheels ended up in the crosswalk, a traffic violation. They pulled over the cab and recovered a … Read more
Here are two summary orders of interest: In United States v. Mammedov, No. 06-2971-cr (2d Cir. December 30, 2008), the court vacated a restitution order where the district court failed to set a payment schedule and, at least implicitly, ordered that the full amount be paid immediately. Ordering immediate payment when nothing in the record … Read more