Federal Defenders of New York Second Circuit Blog

DNA Search of Non-Violent Probationers Upheld

United States v. Amerson, Docket No. 05-1423-cr (2d Cir. Mar. 29, 2007) (Calabresi, Katzmann, B.D. Parker, C.JJ.): In this case, the Court upholds, against a Fourth Amendment challenge, the federal program of DNA testing, to which prisoners, those on supervised release, and probationers are subject, as applied to probationers convicted of non-violent crimes. On its … Read more

Telephone Informant Who Gives Her Name and Phone Number to the Police Is … er, Not “Anonymous”

United States v. Elmore, Docket No. 05-1734-cr(L) (2d Cir. Mar. 29, 2007) (Pooler, Raggi, Sand): This case makes me want to practice in the District of Connecticut. Here, the district court ruled that a Terry stop of the defendant’s vehicle (resulting in the subsequent recovery of a firearm) was not supported by reasonable suspicion because … Read more

Possible Error in NY State Certificate of Disposition Triggers Remand for Resentencing

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 … Read more

Sentence Based on District Court’s Desire to Deter Others from Defendant’s Ethnic Community Vacated

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 … Read more

Standard Appellate Waiver Does Not Bar Appeal of District Court’s Decision re Concurrency

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 … … Read more

Yet Another Time-Warp Opinion

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 … Read more

Circuit Once Again Shoots Down Lenient Non-Guideline Sentence

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 … Read more

No Error in Indictment’s Failure to Allege Materiality in Bank Fraud Prosecution

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 … Read more