United States v. Kane, Docket No. 05-2714-cr (2d Cir. June 19, 2006) (Meskill, Straub, Katzmann) (per curiam): This opinion primarily holds that while a sentencing court may not rely on a defendant’s abstract beliefs (or writings) for the purpose of demonstrating that those beliefs / writings (and by extension the defendant) are “morally reprehensible” (and thus deserving of greater punishment), Op. 5, a court may properly consider such beliefs and writings when they rebut the defendant’s mitigating evidence. Following Fernandez, the opinion also holds that the Circuit has jurisdiction to review a claim that the defendant’s below-the-range sentence (of 24 months, down from the 30 to 37 months advisory range) was unreasonable. Finally, the opinion quickly upholds that sentence against an unreasonableness challenge, quoting Fernandez for the proposition that “reasonableness review does not entail the substitution of our judgment for that of the sentencing judge” and …

United States v. Rattoballi, Docket No. 05-1562-cr (2d Cir. June 15, 2006) (Walker, Winter, Jacobs): Someone please wake us up: We read this opinion and had a nightmare that we lived either in another Circuit or in an alternate universe in which Booker had never happened. In an extraordinary act of law-making that flouts Booker and contradicts core post-Booker caselaw in the Second Circuit, including Crosby and Fernandez, C.J. Walker, along with former and future C.J.s Winter and Jacobs, writes as if on a clean slate (and as if this were the 7th or 8th Circuits rather than the 2nd) and overturns, for the first time since Booker was decided 17 months ago, a sentence as substantively unreasonable (i.e., just too short). Cynics will not be surprised that this occurred on a Government appeal of a below-the-range sentence, rather than a defendant’s appeal of an …

Earley v. Murray, Docket No. 04-4098-pr (2d Cir. June 9, 2006) (Walker, Leval, Sotomayor): This seems an easy case, though the learned district judge somehow got it wrong. The Circuit (by the Chief, no less) reverses the district court and grants the writ to the habeas petitioner, concluding that state courts acted contrary to clearly established Supreme Court law (i.e., Hill v. U.S. ex rel. Wampler, 298 U.S. 460 (1936)) when they upheld the Department of Correctional Services’s (“DOCS”) unilateral post-sentencing decision adding a 5-year term of post-release supervision to Earley’s sentence, even though the sentencing judge did not impose such a term either at sentencing or in the written judgment of conviction. Wampler held that “the only sentence known to the law is the sentence or judgment entered upon the records of the court” and that “until corrected . . . it says …

Howard Bashman (of the must-read How Appealing blog) wrote this critique of the Second Circuit’s website in a recent article for law.com ranking the websites of the various federal Circuits:

“My final bit of criticism is reserved for the New York City-based 2nd U.S. Circuit Court of Appeals, which allows visitors to access newly issued opinions via three types of searches. Unfortunately, those different methods often produce different results. There’s no reason why an appellate court’s Web site should require users to perform three searches to ensure that they have seen all newly issued opinions. The 2nd Circuit’s site is alone among the federal appellate courts in creating this potentially confusing situation.”

(Click here for the entire article). Unlike some courts, moreover, the Second Circuit’s website does not allow on-line access to briefs (contra the 7th and 8th Circuits) or allow users to hear audio recordings of oral arguments …

Brown v. Miller, Docket No. 05-5014-pr (2d Cir. June 7, 2006) (Cabranes, Sotomayor, Raggi): In this disappointing opinion, the Circuit relies on the same ad hoc reasoning it first used in Brown v. Greiner, 409 F.3d 523 (2d Cir. 2005) (click here for our discussion), to reject the habeas petitioner’s claim that his sentence, imposed after the sentencing court determined that he was a persistent felon under N.Y. Penal Law § 70.10, violated the Sixth Amendment. The sole difference between this case and Greiner is that while this petitioner’s conviction became final after both Apprendi and Ring, the Greiner petitioner’s conviction became final after Apprendi but before Ring. This difference, in turn, alters the question presented on federal habeas in light of the AEDPA: While the question in Greiner was whether the state court’s decision upholding § 70.10 was an unreasonable application of Apprendi, …

Zedner v. United States, Supreme Court Docket No. 05-5992 (June 5, 2006): A big Congratulations to Ed Zas of this Office, as well as to Barry Leiwant and Sean Hecker, for winning the long and hard-fought appeal in Zedner. In a 9-0 decision by Justice Alito reversing the Second Circuit (click here for our critique of the Circuit’s decision), the Court held that the protections of the Speedy Trial Act cannot be prospectively waived by the defendant and that harmless error analysis is not applicable when a district court makes no findings on the record to support an “interests of justice” exclusion under 18 U.S.C. § 3161(h)(8).

The only remedy for the Speedy Trial violation here, the Court held, is dismissal of the indictment (either with or without prejudice). Let us hope that wiser heads prevail on remand and end this long, sad saga.…

United States v. John A. Gotti, Docket No. 05-6872-cr (Walker, Leval, Sotomayor): This is the opinion the Court promised in February when it rejected Gotti, Jr.’s interlocutory appeal. Gotti claimed that his retrial on two RICO counts was barred by the Double Jeopardy Clause because the jury at his first trial could not unanimously agree that the Government had proved the existence of at least two predicate racketeering acts. Gotti argues that because the Government thus failed to prove the “pattern of racketeering activity” element of the RICO offense, he was entitled to acquittal on the RICO charges (and thus could not be re-prosecuted on these charges at a new trial under the Double Jeopardy Clause).

The Circuit rejects this “extraordinary argument,” adhering to the general rule that jury unanimity is required for either conviction or acquittal. Op. 6 (citing Fed. R. Crim. P. 31(a) (“The verdict must …

United States v. Hilario, Docket No. 05-3972-cr (2d Cir. May 24, 2006) (Sotomayor, Wesley, Hall) (per curiam): This Blog is puzzled once more by the Court’s decision to issue a published decision rather than a summary order in this case (while giving seemingly more deserving appeals the ol’ back-of-the-hand summary order treatment). Here, the Court rejects Hilario’s two challenges to his sentence (for importing ecstasy), challenges that — at least as described in the opinion, or unless this Blog is missing something — seem to straddle the silly-to-frivolous line.

First, Hilario claims that the district court erred because it departed downward by only 26 months to account for the 26 months that he previously spent in a Belgian jail for a “related offense.” Hilario claims that the court should have departed downward by an additional 4 months because he “might have earned [the 4 months as good-conduct …

United States v. Toohey, Docket No. 05-4688-cr (2d Cir. May 17, 2006) (Winter, Cabranes, Raggi): In light of the Circuit’s extremely lax standard for determining whether a sentencing court has fulfilled its obligation to “consider” the Section 3553(a) factors in imposing sentence as required by Booker, see, e.g., United States v. Fernandez, 443 F.3d 19, 30 (2d Cir. 2006) (appellate court will assume that the requisite consideration has been made, even where record is silent); United States v. Fleming, 397 F.3d 95, 100 (2d Cir. 2005) (same), this may be the first decision by the Circuit vacating a sentence on the ground that record suggests that the district court failed to consider the Section 3553(a) factors in imposing the 15-month sentence (the bottom of the applicable Guidelines range). But the circumstances were odd and unlikely to recur with any frequency: The sentencing followed two…

Smith v. Hollins, Docket No. 03-2250-pr (2d Cir. May 15, 2006) (McLaughlin, Sack, Koeltl (by desig’n)): This decision is but the latest in a long line of Second Circuit cases in which the Circuit has “expressed its strong devotion to the preservation of an individual’s right to have family and friends present at his trial” and granted habeas based on the exclusion of the defendant’s family members from the courtroom. Op. 13 (citing numerous cases from 1994 (Vidal v. Williams, 31 F.3d 67 (2d Cir. 1994)) to 2006 (Rodriguez v. Miller, 439 F.3d 68 (2d Cir. 2006) (click here for our discussion of Miller)). It is also further evidence that neither state courts nor state prosecutors pay any attention to the Second Circuit. In this case, in which the state trial occurred in 1997, the judge and the ADA should have known …

United States v. Adams, Docket No. 04-5391-cr (2d Cir. May 10, 2006) (Cardamone, McLaughlin, Pooler): This opinion does not break new ground, but is a good reminder that while the substantive distribution offense under the drug laws, e.g., 21 U.S.C. § 841(a), does not (as the law currently stands) require proof that the defendant knew the type and quantity of drugs he was selling or carrying for purposes of sentencing under the enhanced penalty provisions of § 841(b), the same is not true of the conspiracy offense under § 846. In order for a defendant charged with drug conspiracy under § 846 to be sentenced under the enhanced penalties of § 841(b)(1)(A) for cocaine, for instance, the Government must prove to a jury that the particular defendant either knew or reasonably should have known that the conspiracy he joined involved distribution of five or more kilograms of …