Our colleague Steve Sady of the Federal Public Defender Office in Oregon has prepared another extremely useful resource, this time discussing BOP issues affecting our clients before and after sentencing. The memo discusses, among other things, the status of litigation concerning the BOP’s view of halfway house placement, the calculation of good-time credit, and eligibility for § 3621(e)’s one-year sentence reduction for completing a residential substance-abuse treatment program.

Click here for a PDF copy of this very useful document. And print out an extra copy for your favorite litigious client!…

United States v. Chin, Docket No. 06-1048-cr (2d Cir. Jan. 30, 2007) (McLaughlin, Sack, Rakoff): This is yet another instance in which the Court scolds a prosecutor for sleazy misconduct at trial, but then renders its bite toothless by deeming harmless the misdeed. I suppose this is better than simply overlooking the misconduct, as the Court often does, but then I’m not the one who has to do the time.

Chin was charged with pretending to be an INS officer and defrauding aliens by telling them that he could obtain U.S. visas for them for a fee. To prove his guilt, the Government offered victim witnesses who said that they met with the defendant in China on particular dates. In his defense, Chin attempted to introduce into evidence credit-card receipts, complete with his signature, showing that he was actually in New York on the those same dates. The …

United States v. Taylor, Docket No. 05-6764-cr (2d Cir. Jan. 23, 2007) (Calabresi, Wesley, Rakoff) (per curiam): The Court affirms Taylor’s sentence, rejecting his claim that remand for resentencing was required because the district judge denied him acceptance-of-responsibility credit on the basis of an erroneous legal ruling that Taylor’s assertion of an entrapment defense at trial was equivalent to a denial of criminal intent to commit the underlying crime. (NB: Darrell Fields of this Office litigated the case on appeal). The Panel affirms the sentence by skirting the ultimate legal question — i.e., whether assertion of an entrapment defense precludes the possibility of acceptance credit under U.S.S.G. § 3E1.1, a question on which the Circuits have split, see Op. 7-8 — in favor of a somewhat dubious finding that the district court actually denied acceptance credit on the basis of other, undeniably proper considerations. Op. 5.…

United States v. Trupin, Docket No. 05-2934-cr (2d Cir. Jan. 23, 2007) (Wesley, Hall, Jones): The real sentencing action is occurring elsewhere, of course, but someone has to report the news from the provinces. This opinion is bad news indeed, but may become irrelevant by June. Keep your fingers crossed.

Here, on a Government appeal of the 69-year-old tax-cheat defendant’s 7-month prison sentence, a Panel of the Circuit vacates the sentence as substantively unreasonable — i.e., “too darn short for our particular taste.” The opinion is fact specific, to be sure, but also portends a broader view of sentencing (at both the district and Circuit levels) quite familiar to most — the pre-Booker, mandatory Guidelines regime in which sentences outside the Guidelines range were presumptively suspicious and lawful only where exceptional circumstances exist. Also, nowhere seen is the deferential, hands-off appellate posture announced …

LoCascio v. United States, Docket No. 05-6761-pr (2d Cir. Jan. 9, 2007) (Cardamone, Straub, Koeltl) (per curiam): There is little of interest in this fact-specific opinion, which principally rejects LoCascio’s (the co-defendant of the senior John Gotti, RIP) motion to recuse Judge Glasser from deciding his § 2255 petition (based principally on a claim that his attorney suffered from an actual conflict at the trial because Gotti threatened to kill the attorney if he did anything adverse to Gotti’s interests). But we must point out that the Circuit errs, twice, in describing this as an appeal “from the judgment of the United States District Court for the Southern District of New York (I. Leo Glasser, Judge).” Op. 1 & 2 (emphasis added). Last we checked, Judge Glasser sits in the EDNY, and the underlying trial — starring the notorious Sammy “the Bull” Gravano as Government Snitch No. …

United States v. McGriff, Docket No. 06-2014-cr (2d Cir. Jan. 5, 2007) (Parker, Wesley, Hall): In a matter of first impression in this Circuit, the Court holds here that a district court’s denial of the defendant’s motion to strike the Government’s death notice for untimeliness under 18 U.S.C. § 3593(a) is not immediately appealable under the collateral order exception to the final judgment rule. The Court rejects McGriff’s effort to characterize the right conferred by § 3593(a) — requiring the Government to notify a defendant of its intent to seek the death penalty, and the aggravating factor(s) justifying such a sentence, at “a reasonable time before the trial or before acceptance by the court of a guilty plea” — as a right “not to stand trial for a capital offense except upon adequate notice.” Op. 7. Rather, the Court explained that the protection offered by § 3593(a) …

United States v. Moreno-Rivera, Docket No. 05-5760-cr (2d Cir. Dec. 22, 2006) (Cabranes, Sack, Hall) (per curiam): In United States v. Fuller, 332 F.3d 60 (2d Cir. 2003), the defendant claimed, as Moreno-Rivera does in this appeal, that his attorney failed to follow his explicit instruction to file a notice of appeal, resulting in the defendant’s failure to file a timely pro se notice of appeal. In Fuller, it was undisputed that Fuller timely asked his attorney to file the notice of appeal, and that the attorney failed to do so. As a result, the Circuit dismissed Fuller’s late appeal, but remanded the case to the district court with instructions to vacate the judgment and enter a new judgment, so that Fuller can timely appeal from the new judgment.

The Circuit denies the same remedy to Moreno-Rivera, however, and dismisses his late appeal. This is …

United States v. Daidone, Docket No. 04-3784-cr (2d Cir. Dec. 15, 2006) (Newman, McLaughlin, Hall) (per curiam): This opinion does not appear to break new ground, but simply confirms that in a RICO prosecution, proof of “horizontal relatedness” between the alleged predicate acts — i.e., proof that the predicates are related to each other — may be satisfied by the same evidence used to prove “vertical relatedness” — i.e., evidence establishing that the predicates are related to the RICO enterprise. Daidone, a made guy in the Luchese family of LCN, complains on appeal that his RICO convictions under § 1962(c) & (d) must be vacated because the three predicate acts (two whackings and a long-term shylocking) “were committed years apart, by different people and for entirely different reasons,” and thus did not constitute a “pattern of racketeering activity” as required under RICO. He especially complains …

United States v. Gilmore, Docket No. 05-6195-cr (2d Cir. Dec. 8, 2006) (Miner, Pooler, Katzmann) (per curiam): In United States v. Anati, 457 F.3d 233 (2d Cir. 2006), the Circuit held that a district court must give reasonable notice of its intent to exceed the advisory Guidelines range (via consideration of the § 3553(a) factors) prior to sentencing. Here, the Court extends Anati and holds that failure to provide the notice required by Anati constitutes “plain error” warranting reversal and remand for resentencing, even where the defendant failed to object to the lack of notice at sentencing.…

The Supreme Court ruled yesterday in Lopez v. Gonzales that a state felony conviction for simple drug possession does not qualify as an “aggravated felony” for purposes of the Immigration and Nationality Act. And although the Court had granted cert. in a companion case involving the same interpretive question but in the Sentencing Guidelines context, the Court dismissed that criminal case in a one-sentence order stating that the “writ of certiorari is dismissed as improvidently granted.”

This outcome yields some uncertainty for those who practice in the Second Circuit, because this Circuit has divergent holdings on this issue depending on whether it arises in the immigration context or the Guidelines context. Thus, on the one hand, the Circuit ruled in Aguirre v. INS, 79 F.3d 315 (2d Cir. 1996), that a state possession felony is not an aggravated felony in the immigration context. On the other hand, the Circuit …

United States v. Acosta, Docket No. 05-3346-cr (L) (2d Cir. Nov. 30, 2006) (Jacobs, Parker, Oberdorfer) (per curiam): This short opinion holds that convictions under (1) the second clause of 18 U.S.C. § 242 (violating someone’s civil rights when either “bodily injury results” or involved “the use, attempted use, or threatened use of a dangerous weapon”) and (2)18 U.S.C. § 241 (conspiring “to injure, oppress, threaten, or intimate” a person exercising his/her civil rights) both qualify as a “crime of violence” under 18 U.S.C. § 924(c) (mandating additional consecutive sentence when a firearm was possessed / used / brandished “during and in relation to any crime of violence . . . for which the person may be prosecuted in a court of the United States”), which defines a “crime of violence” as a felony that either “(A) has as an element the use, attempted use, or threatened …