United States v. Brown, No. 05-5462-cr (2d Cir. January 30, 2008) (Kearse, Hall, CJJ, Rakoff, DJ) This opinion deals with a seemingly straightforward issue: whether a New York State conviction for burglary in the third degree is a “crime of violence” under Guidelines section 4B1.2(a). It turns out, however, that the issue has a complication. … Read more
United States v. Schlesinger, No. 05-03021-cr (2d Cir. January 30, 2008) (Jacobs, Parker, Wesley, CJJ) (per curiam) Schlesinger, convicted of mail and wire fraud, made a clever, but unfortunately not clever enough, argument challenging the forfeiture of the proceeds. The district court had relied on 28 U.S.C. § 2461(c) (2005), which provides that a criminal … Read more
United States v. Abad, No. 06-0338-cr (2d Cir. January 30, 2008) (Jacobs, Parker, Wesley, CJJ) (per curiam) Here, the court holds that a failure to make a claim under the Speedy Trial Act in the district court results in a waiver of the issue on appeal. Thus, an unpreserved statutory speedy trial claim cannot be … Read more
The court has not issued a published opinion in a criminal case for a while. But here is the most recent set of summary orders of interest. In United States v. Matthews, No. 04-1657-cr (2d Cir. January 29, 2008), the court vacated the application of the “street gang” enhancement in 18 U.S.C. § 521 because … Read more
Here’s another group of summary orders of interest: In United States v. Whitley, No. 05-3359-cr (2d Cir. January 15, 2008), the court accepted a “minimally sufficient” Anders brief. In United States v. Leonardo, No. 05-1791-cr (2d Cir. January 14, 2008), the court excused the defendant’s waiver of his appeal, and found that the government breached … Read more
Two recent cases provide some guidance on the requirement in 18 U.S.C. § 3553(c) that the district court state in “open court” its reasons for imposing a particular sentence. 1. United States v. Day, No. 05-4285-cr (2d Cir. January 15, 2008) (Jacobs, Pooler, Sack, CJJ) (per curiam) is particularly shocking. Day was originally sentenced to … Read more
As the Blog has observed, see Post of 11/29/07: Have You Hugged A Sex Offender Recently?, recently sex offenders fared pretty well in the circuit. Until now. In this most recent crop of cases, sex offenders lost three out of four, and the win was in a summary order, to boot. Here they are: 1. … Read more
United States v. Glover, No. 05-5047-cr (2d Cir. January 4, 2008) (Pooler, Raggi, CJJ, McMahon, DJ) At this firearms trial, the judge charged the jury, over objection, that “the crucial, hard-core question” to answer was, “Where do you find the truth?” He also instructed: “The only triumph in any case, whether it be civil or … Read more
Here is the latest installment of the Blog’s round-up of summary orders of interest. In United States v. Fernandez-Quesada, No. 06-4446-cr (2d Cir. January 4, 2008), the court dismissed a sentencing appeal as moot because the defendant had been released, even though he had a “potentially valid claim” that his sentence was based on an … Read more
United States v. Quinones, No. 04-5554 (2d Cir. December 28, 2007) (Winter, Cabranes, Raggi, CJJ) This case has lengthy discussions of two important issues. It turns out that the one that has received the less press is actually the more interesting of the two, so we’ll begin with that. 1. Sentencing Error Waived Facts: In … Read more