United States v. Green, Docket No. 05-3830-cr (2d. Cir. March 13, 2007) (Kearse, Sotomayor, Parker). Here, the circuit accepted a defendant’s claim that the government might not have properly proven a recidivism enhancement – the six-level bump for having a prior drug trafficking conviction under U.S.S.G. § 2K2.1(a)(4)(A) .

In 1996, Michael Green was convicted of attempted criminal possession of a controlled substance in the third degree under N.Y. Penal Law §§ 110.00 & 220.16 (McKinney 1987). Section 220.16, the drug statute (§ 110.00 is the attempt statute), has multiple subsections; pertinent here are Subsection 1, which makes it a crime to possess a “narcotic drug with intent to sell it” and Subsection 12, which makes it a crime to possess more than one-half ounce of a narcotic drug. Subsection 1 triggers the enhancement under 2K2.1(a)(4)(A), because it involves the intent to distribute, but Subsection 12 does not. Green had …

United States v. Siindima, Docket No. 06-2245-cr (2d Cir. March 5, 2007)(Sack, Katzmann, Parker). It has long seemed as if reasonableness review in the Second Circuit was a one-way street permantently running in the wrong direction. Bucking the trend, at last, is Sindima. Here, the Court found that a 36-month probation violation sentence was substantively unreasonable, where the guideline sentencing range was 4 to 10 months.

Sindima’s saga began in 2003, when he was sentenced to three years’ probation on what appears to have been a $9,000 mail fraud. Although both the district court and the appellate court referred to this sentence as a “break,” it in fact was a guideline sentence, not a variance, since the guideline sentencing range was 0 to 6 months’ imprisonment.

About two years into his term of probation, Sindima engaged in an elaborate check-kiting scheme, for which he was arrested by local authorities, but …

United States v. Kaba, Docket No. 05-3813-cr (2d Cir. Mar. 8, 2007) (Walker, Sack, Wesley): In this case, the government urged, in support of the proposed sentence, that the defendant came from a tightly-knit West African community, and that a stiff sentence would deter her countrymen here and elsewhere in the world from engaging in drug crimes. The district court essentially adopted this rationale for its sentence. It noted initially, and sensibly, that general deterrence was rarely a big factor in setting a sentence, but went on to adopt the government’s notion that in this case, because of the defendant’s origins, its sentence would serve to deter those of her nationality. The defendant appealed, arguing that it was impermissible to base her sentence on her national origin, and the Circuit agreed.

The Circuit found the case indistinguishable from United States v. Leung, 40 F.3d 577 (2d Cir. …

United States v. Reich, Docket No. 06-1445-cr (2d Cir. Mar. 2, 2007) (Kearse, Sotomayor, Koeltl): This opinion principally holds that 18 U.S.C. § 505, which makes it a crime to “forge[] the signature of any judge … of any court of the United States … or forge[] or counterfeit[] the seal of any such court . . . ” does not require proof of an intent to defraud. This holding aligns the Second Circuit with the Tenth, see United States v. Cowan, 116 F.3d 1360 (10th Cir. 1997), and against the Sixth, see Levinson v. United States, 47 F.2d 470 (6th Cir. 1931). The Circuit’s lengthy exegesis of why this is so, see Op. 13-18, is interesting for those who care about this issue.

The opinion also unsurprisingly holds, though technically as a matter of first impression in this Circuit, that the particular version of the …

United States v. Stearns, Docket No. 05-2550-cr (2d Cir. Mar. 2, 2007) (Calabresi, Parker, Hall) (per curiam): This short opinion principally confirms, as a general matter, that appellate waivers must be narrowly construed (and in the defendant’s favor) and, more specifically, that a standard appellate waiver (wherein the defendant “waives the right to appeal … any sentence imposed by the Court which is the same as or less than” a specific number of months or years) does not bar an appellate challenge to the district court’s decision to run the federal sentence only partially concurrent to an undischarged state sentence. Op. 4-5. The Circuit had previously held the same in United States v. Williams, 260 F.3d 160, 164-65 (2d Cir. 2001), and United States v. Brown, 232 F.3d 44, 48 (2d Cir. 2000).

Moreover, for purposes of determining the scope of the appellate waiver, it did …

United States v. Capanelli, Docket No. 05-3056-cr (2d Cir. Mar. 1, 2007) (Jacobs, Sack, Oberdorfer) (per curiam): This opinion follows the Rattoballi line of cases, which emphasize the continuing centrality of the Guidelines in sentencing despite Booker. The panel rejects Capanelli’s claim that his sentence must be vacated as procedurally unreasonable because the district court “gave complete deference to the guidelines” at sentencing. Op. 4. Among other things, the district judge, while repeating the “of course the Guidelines are now advisory” mantra, stated that the Guidelines should be “given significant and substantial deference” at sentencing.

No problem!, this panel says, because the Guidelines range “‘should serve as a ‘benchmark or a point of reference or departure’ for a sentencing court,” (emphasis in original) and because

“A sentencing judge’s decision to place special weight on the recommended guideline range will often be appropriate, because the Sentencing …

United States v. Wills, Docket No. 06-0115-crt (2d Cir. Feb. 5, 2007) (Feinberg, Cabranes, Sack): It’s an all-too-familiar occurrence these days, and has happened again. This opinion finds (surprise!) a below-guideline sentence to be unreasonable. Remarkably, though, the court did not take on the government’s claim that the sentence, which was ten years below the advisory minimum, was substantively unreasonable. Rather, the court focused on the district court’s consideration of two statutory factors, and found that the sentence was procedurally unreasonable.

First on the court’s radar screen was the district court’s conclusion that, since the defendant would be deported immediately after serving his sentence, he presented a low risk of recidivism, under 18 U.S.C. § 3553(a)(2)(C). The circuit has, in a series of post-Booker opinions, taken a dim view of categorical deviations from the guidelines. So it is hardly surprising that it rejected the distirct court’s reasoning. The appellate court …

United States v. Dayan, Docket Nos. 05-3443-cr (L), 05-4199-cr (CON) (2d Cir. Feb. 5, 2007) (Kearse, Winter, Walker): This short opinion rejects Dayan’s claim that his indictment, charging him with conspiracy to commit bank fraud and several substantive counts of bank fraud, was defective because it failed to state that his frauds were “material,” an element of the offense. In Neder v. United States, 527 U.S. 1, 25 (1999), the Supreme Court ruled that although the bank fraud statute, 18 U.S.C. § 1344, does not contain the word “material,” materiality was nonetheless an element of the offense “because the word fraud incorporated fraud’s ‘well-settled meaning at common law’ — a ‘misrepresentation or concealment of material fact.'” Op. 5 (quoting Neder) (emphasis in original). Using the same reasoning, the Circuit rejects Dayan’s claim: “If materiality can be inferred to be an element of criminal fraud because of …

United States v. Williams, Docket Nos. 05-4928-cr (L) & 05-4956-cr (2d Cir. Jan. 30, 2007) (Winter, Cabranes, Korman): The only item worth noting in this opinion, in which both defendants appeal the district court’s refusal to resentence them following a Crosby remand, is the Circuit’s reminder to district judges that their task at sentencing is not to impose a “reasonable” sentence, but rather a sentence that (1) takes into account all the § 3553(a) factors, and (2) is no greater than necessary to promote the ends of sentencing. Op. 12. As the Court states in a quotable line, “district courts are to impose sentences pursuant to the requirements of § 3553(a) — including the requirements of § 3553(a)’s parsimony clause — while appellate courts are to review the sentences actually imposed by district courts for reasonableness.” Id. Reminding district courts of this distinction may not make a difference …

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 …