United States v. Flores, Docket No. 05-2385-cr (2d Cir. May 3, 2006) (Kearse, Raggi, Restani (by desig’n)): This opinion affirms Flores’s conviction for conspiring to import heroin and his 210-month sentence, discussing along the way (1) the standards for tolling the statute of limitations under 18 U.S.C. § 3290 based on the defendant’s “fl[ight] from justice”; (2) whether testimony by cooperating witnesses alone, without independent corroboration, is sufficient to convict the defendant; and (3) whether the 210-month sentence is reasonable given that Flores’s brother Chepe, who appeared to be equally culpable, received only a 120-month sentence (imposed by a different judge). The bulk of the opinion is spent on the tolling question, Op. 5-16, but this Blog will focus on the sentencing issue.

Flores claims that his 210-month sentence is unreasonable because of its disparity with his brother’s 120-month sentence. This is so even though Flores actually faced …

United States v. Goffi, Docket No. 05-3329-cr (2d Cir. May 4, 2006) (Kearse, Sack, Stanceu (by desig’n)): The Circuit finally holds what most have long assumed — that the maximum sentence upon revocation of probation (as opposed to supervised release) is the maximum for the original, underlying offense. Surprisingly, this was technically an open question in the Circuit until this decision, in which the Second joins many other circuits in so holding. Op. 9-10. Those interested in the statutory parsing can look to pages 7 to 8.

In this case, Goffi was originally sentenced to 5 years’ probation after pleading guilty to embezzlement. While on probation, he pleaded guilty in state court to child molestation. The same misconduct led to revocation of probation in federal court, upon which he was sentenced to 24 months’ imprisonment. Though this sentence exceeds the 6 to 12 months Guidelines range Goffi originally …

United States v. Thorn, Docket No. 03-1602(L) (2d Cir. April 27, 2006) (Jacobs, Sotomayor, Hall): A very bad day for Mr. Thorn. In this opinion, involving an appeal by Thorn and a cross-appeal by the Government following a resentencing in the wake of an earlier Circuit decision in the same case, United States v. Thorn, 317 F.3d 107 (2d Cir. 2003), the Circuit (1) rejects all of Thorn’s challenges to his sentence on the ground that they are either barred by the law of the case doctrine (because they are foreclosed by the earlier decision) or waived because he failed to raise them at the initial sentencing, and (2) accepts all of the Government’s arguments — that the district judge on remand erred in (a) failing to impose an abuse-of-trust enhancement and (b) departing downwardly because Thorn’s conduct was (allegedly) not within the heartland of money laundering …

United States v. Temple, Docket No. 05-0165-cr(L); 05-0679(XAP) (2d Cir. May 1, 2006) (Miner, Wesley, Rakoff)

Eva Temple, an IRS employee, was charged with disruptive behavior in two separate incidents. In the first, two New York City Police Detectives came to arrest her at her place of work, and, as they did, she verbally abused them. In the police car on the way to the precinct, she told the detectives that “she had the ‘ability to initiate investigations and audits into the[ir] tax histories'” and that she had co-workers who held a grudge against the police whom she could tell to audit their tax returns. For this, she was charged with willfully oppressing a person under color of law while acting in connection with a revenue law of the United States. 26 U.S.C. § 7214(a). Ms. Temple was subsequently fired from her job and made a telephone …

United States v. Barraza, Docket No. 05-1454-cr (2d Cir. May 2, 2006) (Walker, Leval, Sotomayor): It’s hard to believe that this isn’t a settled issue in the Circuit, but apparently it’s not. In this opinion, the Court rules that for purposes of determining whether a defendant qualifies for safety-valve relief under § 5C1.2, as well as for the 2-level reduction under § 2D1.1(b)(9), a finding that the defendant constructively possessed a firearm, “based on his personal dominion and control over that weapon,” Op. 7 (emphasis in original), renders the defendant ineligible for such relief under § 5C1.2(a)(2) (listing as one requirment for safety-valve relief that “the defendant did not . . . possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense.”). The Court reasoned that since constructive possession is as good as actual possession in every other context, …

United States v. Wallace, Docket No. 03-1777 (L) (2d Cir. April 27, 2006) (Walker, Cardamone, Parker): The Circuit disposes of most of Wallace and co-defendant Thomas’s challenges to their conviction and life sentences (imposed on the drug conspiracy and murder-during-a-drive-by-shooting counts) in a simultaneously issued summary order. In this published decision, the Court vacates one of two § 924(c) convictions, applying the rule adopted in United States v. Finley, 245 F.3d 199, 207-08 (2d Cir. 2001) (“[C]ontinuous possession of a firearm in furtherance of simultaneous predicate offenses consisting of virtually the same conduct” amounts to a single unit of prosecution, and thus only one § 924(c) conviction is sustainable). The application of Finley to the facts of this case is questionable — the predicates for the two § 924(c) counts were an arguably distinct drug conspiracy and a drive-by-shooting (committed after the unfortunate victim stole drugs from …

We recently received a copy of a letter written by the Criminal Division of the Department of Justice, addressed to the Clerk of the First Circuit, in which the Government adopts the position — directly contrary to its earlier view — that Fed. R. Crim. P. 32 requires prior notice to the parties if a court intends to exceed the Guidelines range at sentencing, whether via a traditional departure or via a consideration of the § 3553(a) factors pursuant to Booker. As the Government writes, “the sentencing court does have an obligation to provide prior notice before deviating from the Guidelines range on a ground that was not identified in the presentence report or by the parties. . . . [A] district court should provide notice to the parties when it is contemplating a sua sponte deviation (whether upward or downward) from the advisory Guidelines range.” Letter at 1-2.…

United States v. Reifler, Docket No. 03-1244 (L) (2d Cir. April 18, 2006) (Kearse, Jacobs, Calabresi): Guest Blogger wanted: Anyone wishing to throw in his or her 2 cents about this 164 page opinion should email me. I can’t even make myself print it out, much less read it. (At least this week …)

But sentencing fans can skip to page 104 of the opinion to see the Court reject, at long last, an Apprendi-Ring-Blakely-Booker challenge to the restitution order (which includes amounts not found by a jury or admitted by the defendant). The first two arguments proffered by the Court are plain bizarre — non-sequiturs, really — and the third is simply a repeat of the post-hoc rationale first invented in Fruchter (that the Apprendi rule does not apply to restitution because there is no “maximum” under the restitution statute).…

United States v. William Hayes, Docket No. 05-2321-cr (2d Cir. April 18, 2006) (Winter, Calabresi, Pooler): The Circuit upholds a lifetime supervised release term imposed upon Mr. Hayes, who pled guilty to transporting child porn in interstate commerce in violation of 18 U.S.C. § 2252A. That Hayes must first serve 151 months in prison and will be 68 years old by the time of his release did not require a different result. In upholding the sentence, the Circuit relied inter alia on (1) the policy statement in Section 5D1.2(b)(2) (recommending the statutory maximum term of supervised release where the defendant is convicted of a sex offense); (2) the fact that Hayes was convicted in state court of molesting a 12-year-old girl more than a year after the events underlying the federal case; and (3) a Congressional finding that sex offenders are far more likely to recidivate than other …

United States v. John Doe, Docket No. 04-5677-cr (L) (2d Cir. March 27, 2006) (Cardamone, Sack, Casey (by desig’n)): This decision does not appear to break new ground in remanding the case back to the district court for an evidentiary hearing on whether the Government’s refusal to file a § 3553(e) / § 5K1.1 letter was made in bad faith. In United States v. Knights, 968 F.2d 1483, 1488 (2d Cir. 1992), the Court sensibly ruled that the Government cannot refuse to file a 5K letter on the basis of facts known to it at the time the agreement was executed. As the Court explained there, “Not only would it be unfair for the government to rely upon . . . known, pre-agreement circumstances as reasons for not moving [under 3553(e) / 5K], it would have been fraudulent to have induced a defendant’s plea with a …

United States v. Jermi Francisco Lopez, Docket No. 03-1476-cr (2d Cir. April 4, 2006) (Sack, Sotomayor, Raggi):

Where an element of a crime, in this case a prior deportation, depends on an administrative finding, due process requires that that finding have been subject to judicial review, to ensure its accuracy and make it a proper basis for criminal sanctions. See United States v. Mendoza-Lopez, 481 U.S. 828 (1987); 18 U.S.C. § 1326(d). In this case, the defendant had sought dismissal of his illegal reentry indictment on the ground that he had been denied judicial review of his deportation by misinformation given him at his hearing and by the Immigration Judge’s failure to advise him of the availability of collateral relief by habeas corpus. In 1997, just at the time of amendment of new immigration laws eliminating much of the existing discretionary relief for deportation, the defendant had …