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Federal Defenders of New York Second Circuit Blog


Saturday, May 3rd, 2008

Summary Summary

This batch of summary orders of interest wraps up April. Here we go:

In United States v. Moya, No. 05-2432-cr (2d Cir. April 30, 2008), the district court erred in imposing a 2-level aggravating role enhancement. Where the defendant is not a manager or supervisor, but there are five or more participants, the district court’s choice is between a 3-level enhancement or no enhancement at all. “Compromise outcomes” are not permitted.

In United States v. Dono, No. 07-5333-cr (2d Cir. April 23, 2008), the district court erred in setting bail for two alleged members of an organized crime family who were charged with a crime of violence. The defendants did not overcome the statutory presumption of dangerousness, and the bail condition ordering them to stay away from the victims and not associate with other crime family members did “not ensure that they will comply.”

United States v. Desroches, No. 06-3196-cr …

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Friday, May 2nd, 2008

State of Disagreement

United States v. Williams, No. 05-4416-cr (2d Cir. April 25, 2008) (Calabresi, Cabranes, CJJ, Korman, DJ)

Here, the court vacated two below-guideline sentences that seemed to have been imposed largely in order to minimize a perceived disparity between the sentence recommended by the guidelines and the sentence that would have been meted out in state court.

Williams and Shuler sold crack together in Yonkers. They were first charged in state court, then the case was transferred to federal court. For reasons that are not clear, they were separately charged and their cases were handled by different district judges.

Williams was sentenced first, by Judge McMahon. He faced a 70 to 87 month range (now it would be 57 to 70 due to the crack guideline amendments) but the judge, persuaded by Williams’ attorney that the plea offer from Westchester County D.A.’s office’s would have been between 12 and 66 months, …

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Rejection Letter

United States v. Negron, 06-3614-cr (2d Cir. April 24, 2008) (Jacobs, Kearse, Pooler, CJJ) (per curiam)

Defendant Silverio, who was sentenced to 272 months (22 years, 8 months) in prison, had been offered, and rejected, a plea agreement with a binding sentencing recommendation of 17 years. On appeal, he argued that district court erred in refusing to consider the terms of the rejected agreement at sentencing.

Not surprisingly, the appellate court disagreed. There is nothing in § 3553(a) – or circuit precedent – that requires a district court to do so. Accordingly, finding no substantive or procedural defect with the sentence, the court affirmed.

…

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Youthful Indiscretion

United States v. Parnell, No. 06-4551-cr (2d Cir. April 23, 2008) (Winter, Straub, Sack, CJJ) (per curiam)

In this case, the court again holds that a New York youthful offender adjudication (a “y.o.”) – here, it was for attempted burglary in the second degree – must be included in the defendant’s criminal history score under the sentencing guidelines and, where applicable, can trigger the “career offender” enhancement.

There is nothing new or surprising about this. What is interesting about this case is its strong dicta that a y.o is not a predicate under the Armed Career Criminal Act (ACCA). Indeed, the circuit cites with approval United States v. Fernandez, 390 F. Supp.2d 277 (S.D.N.Y. 2005) (litigated and won by this very blogger), which so held, and notes that, here, the district court followed Fernandez in declining to sentence Parnell under ACCA, a sentence, not incidentally, that the government did not …

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Thursday, May 1st, 2008

Government’s “Question[able],” “Troub[ling]” and “Disingenous” Conduct Results in an Affirmance. Huh?

United States v. Blech, No 05-3600-cr (2d Cir. April 23, 2008) (Sotomayor, Parker, Hall, CJJ).

Two defendants who were convicted of securities and related frauds appealed on the ground that their cases were misjoined, and one advanced a Brady claim. The court affirmed, but only out of apparent deference to the district court’s findings under the “abuse of discretion” standard.

The Severance Issue

This case went to trial on a thirteen-count indictment that alleged two separate fraud schemes. The first involved appellant Brandon, who, along with others, defrauded customers of Credit Bancorp of more than $200,000,000. The second scheme involved appellant Wexler, who also defrauded Credit Bancorp customers, but in a different way. The district court denied their severance motions, and both were convicted.

The defendants’ severance claim was unusually strong. Although the two schemes shared some participants, and both targeted Credit Bancorp customers, they were otherwise completely distinct. Nevertheless, …

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Saturday, April 19th, 2008

Unconditioned

United States v. Gill, No. 07-0284-cr (2d Cir. April 17, 2008) (Cabranes, Sotomayor, Wesley, CJJ) (per curiam)

Gill, who pled guilty to making false statements in a health care matter, unsuccessfully challenged two of his special conditions of supervised release. The first, which barred him from “engaging in the business of counseling,” was reasonably related to the need to protect the public, since Gill had in the past falsely represented himself as qualified to provide mental health services, when in fact he was not. The other condition – a requirement that he continue making restitution payments arising from an earlier condition – was likewise proper because it was reasonably related to his history and characteristics…

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Cracked Up

United States v. Lee, No. 06-4933-cr (2d Cir. April 17, 2008) (Cabranes, Wesley, CJJ, Castel, DJ)

Defendant Cathy Lee received a 120-month sentence, the mandatory minimum, in a crack trafficking case. She raised on appeal a host of constitutional and statutory challenges to her sentence, claiming that it violated § 3535(a), the Eighth Amendment, and equal protection, in light of the powder-vs-crack sentencing disparities.

The court held that these claims were waived by the appellate waiver in Lee’s plea agreement. Although such waivers will not be enforced when an “arguably unconstitutional” consideration influenced the sentencing, there was no such consideration here. The equal protection argument with respect to crack sentences is a claim about the statute itself, not a claim that the court considered an improper factor at sentencing. Moreover, the court rejected the equal protection statutory argument nearly fifteen years ago, and no subsequent legal development – including Kimbrough …

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Saturday, April 12th, 2008

For Your Consideration

United States v. Hardwick, No. 04-1369-cr (2d Cir. April 11, 2008) (Winter, Walker, Sotomayor, CJJ)

Glen Hardwick was convicted after a jury trial of conspiracy to commit and aiding/abetting murder-for-hire in violation of 18 U.S.C. § 1958. Virtually all of the evidence of the “consideration” element of the offense came from the plea allocution of Hardwick’s brother, which was admitted into evidence over objection, although not a Confrontation Clause objection. The appellate court held that this Sixth Amendment violation was plain error, but that there was legally sufficient evidence on this element. It accordingly did not reverse the conviction; it vacated and remanded for a new trial.

Facts: Most of the action here involved Glenn Hardwick’s brother, Stacey, who had an ongoing drug and gun trafficking relationship with an undercover police officer. At one point, Stacey contacted the UC and asked him to kill someone who had pulled a gun …

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Wednesday, April 9th, 2008

Next Stop, Confusion

United States v. Hendry, No. 06-5118-cr (2d Cir. Aprl 9, 2008) (Leval, Calabresi, Wesley, CJJ) (per curiam)

In this decision the Court blows yet another opportunity to clarify the “fast-track” sentencing issue in illegal reentry cases.

The court has already held that district courts are not required to take into account the lower sentences imposed in fast track districts, but has left open the question whether a court has the authority to do so if it deems a reduced sentence warranted. This decision still seems to leave the question open. Here, although Hendry argued that the district judge erroneously believed that he could not consider the absence of a fast-track program in deciding what sentence to impose, the circuit found that the district judge believed that he could consider it – although he elected not to do so – and the opinion does not say whether the judge’s belief was …

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Tuesday, April 8th, 2008

SUMMARY SUMMARY

Here are three more s/o’s to chew on:

In United States v. Glum, No. 06-3099-cr (2d Cir. April 8, 2008), the court ordered a Crosby remand even though the district court, when denying the defendant’s pro se 2255 motion, had already indicated that it would impose the same sentence.

In United States v. Ogman, No. 06-0203-cr (2d Cir. April 7, 2008), the court refused to order a Regalado remand in a crack case where the defendant was sentenced as a career offender. Here, the Guideline range was “not the result of the 100-to-1 powder to crack ratio, but rather resulted from [defendant’s] undisputed status as a career offender.”

In United States v. Ruiz, No. 06-5609-cr (2d Cir. April 1, 2008), the court held that the defendant’s sentencing appeal was barred by the waiver contained in the plea agreement, even though it was “not entirely clear that the sentencing judge complied …

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Friday, April 4th, 2008

Consecutive Privilege

United States v. Donoso, No. 07-0635-cr (2d Cir. April 3, 2008) (McLaughlin, Hall, CJJ, Sand, DJ) (per curiam)

Resolving an open question in this circuit, the court here holds that, under 18 U.S.C. § 3584(a), a district judge cannot order the federal sentence to run consecutively to another sentence that has not yet been imposed.

Facts: Richard Donoso violated his federal supervised release by committing a state offense. He pled guilty in state court, then came into federal court and admitted the supervised release violation. Judge Spatt sentenced him to 24 months’ imprisonment and ordered it to run consecutively to the state sentence. Donoso was not sentenced in the state case, however, until the next day. A few days later, Judge Spatt recalled the case, questioning whether he had the power to impose a consecutive sentence before the state sentence had been imposed. Invoking Fed.R.Cr.Proc. 35(a), and over objection, he …

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