United States v. Quentin Singletary, Docket No. 05-6145 (2d Cir. July 19, 2006) (Cabranes, Straub, Hall): At his initial sentencing before the decision in Booker, the defendant was given an upward departure to a sentence of 42 months on his conviction for possessing crack with the intent to distribute it. He appealed, and the case was remanded for resentencing under the Supreme Court’s decision in Booker. Upon remand the district court raised the sentence to 57 months’ imprisonment, relying on facts all of which had been in the record before and noting that previously it had “felt constrained” by the guidelines, although since it was departing it had not been constrained in any legal sense, but was required only to impose a reasonable sentence, the same standard that applied post-Booker.

On his second appeal, the defendant argued pursuant to North Carolina v. Pearce…

United States v. Peter Gotti et al., Docket Nos. 04-2746-cr (L) (2d Cir. July 12, 2006) (Katzmann, Feinberg, Lynch (D.J.)): In this 94-page opinion affirming the convictions of numerous members of the Gambino crime family, the Circuit principally holds that the Supreme Court’s decision in Scheidler v. National Org. for Women, Inc., 537 U.S. 393 (2003), “leav[es] intact this Circuit’s precedent that intangible property rights can qualify as extortable property under the Hobbs Act” and “simply clarif[ies] that before liability can attach [under the extortion prong of the Hobbs Act], the defendant must truly have obtained (or, in the case of attempted extortion, sought to obtain) the property right in question.” Op. 45; see also id. 3 (“[F]ar from holding that a Hobbs Act extortion could not be premised on the extortion of property rights,” Scheidler “simply clarified that for Hobbs Act liability to attach, there …

Finkelstein v. Spitzer, Docket No. 05-4725-pr (2d Cir. July 11, 2006) (Kearse, Sack, Stanceu (by desig’n)) (per curiam): This short opinion confirms the rule, adopted by other Circuits that have addressed the question, that the writ of error coram nobis (filed via the All Writs Act, 28 U.S.C. § 1651) may not be used in federal court to attack a state court judgment. This is so because the writ was available at common law only to “a court in cases within its own jurisdiction, not to correct errors in other jurisdictions.” Op. 5. Thus, the district court properly rejected Finkelstein’s coram nobis writ seeking to set aside his state court fraud conviction.…

Levine v. Apker, Docket No. 05-2590-pr (2d Cir. July 10, 2006) (Calabresi, Raggi, Murtha (by desig’n)): This is a great victory for the defense. The Court, by Judge Calabresi and with Judge Raggi dissenting, holds that the BOP exceeded its statutory authority when it promulgated a February 2005 rule categorically limiting the amount of time that a defendant can serve at a halfway house (or “community confinement center”) to a maximum of the greater of either 6 months or 10% of the defendant’s total sentence. Under 18 U.S.C. §§ 3621(b) & 3624(c), the Circuit holds, the BOP must consider the statutorily listed factors (e.g., the resources of the facility, the nature of the offense, and the history and characteristics of the offender) before determining whether a particular form of confinement is appropriate and for what period of time. The Court joins the Third and Eighth …

United States v. Jerrell Heath, Docket No. 04-4599-cr (2d Cir. July 10, 2006) (Calabresi, Cabranes, Hall (by desig’n)): The majority opinion by Judge Calabresi has the unusual vice of being both legally suspect and factually wrong. In a case where the Circuit role-plays as the Supreme Court – Judge Cabranes joins only in Part II of Judge Calabresi’s Opinion (and dissents from Part III) while District Judge Hall joins only in Part III of the Opinion (and dissents from Part II)) – the clearest conclusion is the practical outcome: The district court’s decision granting Heath’s suppression motion (on the ground that the police lacked probable cause to arrest – and then search — him) is vacated, and the case is remanded for further fact-finding on whether the police would have inevitably discovered the $3,073 in cash found on him (because other “facts” coming to light after the …

United States v. Jones, Docket No. 03-1626 (2d Cir. June 30, 2006) (Kearse, Miner, Hall): This fact-intensive opinion upholds Jones’s convictions (for RICO, RICO conspiracy, VICAR conspiracy, and drug conspiracy) against his sufficiency, multiplicity, retroactive misjoinder, and IAC challenges. No new law is made, and even a quick reading of this sad saga is enough to dampen one’s weekend. The opinion is recommended only for those with a particular interest in the inner workings of drug trafficking networks formerly operating inside Bridgeport’s P.T. Barnum Projects. A rare species, we suspect, but maybe there’s one of those born every minute, too.…

United States v. Jenkins, Docket No. 05-2679-cr (L) (2d Cir. June 23, 2006) (Meskill, Cabranes, Wesley): This case was litigated by attorneys from this Office, so this Blog will stick mostly to description.

The Court holds that when police stop a vehicle based on a reasonable but mistaken belief that a law has been violated, they may “briefly” approach the driver to explain their error and are not required by the Fourth Amendment to allow the vehicle to depart immediately upon realizing their error. Here, the police stopped the SUV in which the defendants were traveling based on a reasonable belief that the vehicle did not have a license plate, in violation of state law. However, when the officers got out of their car and approached the SUV, they realized that the car did in fact have a temporary license on the back, which was “hard to see …

United States v. Ramirez, Docket No. 05-4575-cr (2d Cir. June 23, 2006) (Meskill, Cabranes, Wesley) (per curiam): The title basically says it all. In this very short opinion, the Circuit confirms that Booker does not alter the long-standing rule that “the filing of a prior felony information under [21 U.S.C.] § 851(a)(1) ‘is required only where the statutory maximum or maximum penalty under Part D of Title 21 is sought to be enhanced, not where a defendant, by virtue of his criminal history, receives an increased sentence under the Sentencing Guidelines within the statutory range.'” Op. 3 (quoting United States v. Whitaker, 938 F.2d 1551, 1552 (2d Cir. 1991) (emphases in original)). Here, Ramirez faced a Guidelines range of 151 to 188 months because he qualified as a Career Offender under U.S.S.G. § 4B1.1, based on prior convictions not alleged in the indictment (charging him with …

Policano v. Herbert, Docket No. 04-5518-pr (2d Cir. June 21, 2006) (Pooler, Sack, Garaufis (by desig’n) (per curiam)): In the original panel opinion (issued November 2005), Policano v. Herbert, 430 F.3d 82 (2d Cir. 2005) (click here for our discussion), Judge Sack granted the habeas writ to Policano after concluding that the evidence at trial was insufficient to sustain his conviction for depraved-indifference murder under N.Y. Penal Law § 125.25(2), since the evidence showed that if Policano was the shooter, he intentionally murdered the victim but did not “recklessly create[] a risk of [his] death,” as required by current New York law on depraved-indifference murder. See People v. Payne, 3 N.Y.3d 266 (2004); People v. Gonzalez, 1 N.Y.3d 464 (2004). Neither party petitioned for rehearing or rehearing en banc of the panel’s decision.

Nonetheless, the panel has withheld the mandate in the …

United States v. Riley, Docket No. 0-1585-cr (2d Cir. June 21, 2006) (Kearse, Miner, Cabranes): This decision upholds the imposition of a 2-level obstruction enhancement under U.S.S.G. § 3C1.1, even though the defendant’s obstructive conduct appeared to have occurred before the Government began its investigation (and a fortiori its prosecution) of the defendant for the “instant offense of conviction,” i.e., being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Section 3C1.1 requires, among other things, that the defendant’s obstructive conduct occur “during the course of the investigation, prosecution, or sentencing of the instant offense of conviction.” Here, the evidence (as recounted in the opinion) showed that while Riley clearly engaged in conduct that qualifies as obstructive (i.e., telling his girlfriend to hide and/or dispose of his guns), this occurred when no charge concerning his possession of …

United States v. Rattoballi, Docket No. 05-1562-cr (amended opinion June 21, 2006) (Walker, Winter, Jacobs): Yesterday, the panel in Rattoballi (click here for our critique of the original opinion) sua sponte issued an amended opinion. However, because the Circuit (1) never informs its readers what portion(s) of the original opinion has been altered in an amended opinion; (2) the original opinion has been replaced on the Circuit’s website with the amended one; and (3) this Blog already consigned its paper copy of the original opinion to the recycling bin of bad decisions, a concern arose that only memory itself could tease out what is new in the amended opinion. Fortunately, Westlaw has yet to replace the original opinion with its amendment, so those with the time and patience can compare and contrast the two.

This Blog’s morning perusal reveals little new in the amended opinion; most of …