United States v. Sheikh, Docket No. 05-1747-cr (2d Cir. Jan. 5, 2006) (Meskill, Sotomayor, Kaplan (by desig’n)): We were puzzled by why the Court decided to publish this very short opinion, in which the Court rejects the defendant’s claim that “the district court violated his [Fifth and Sixth Amendment] rights by enhancing his sentence on the basis of a fact — the loss amount — not alleged in the indictment,” even where the sentence did not exceed the statutory maximum for the offense of conviction. Our puzzlement stems both from the fact that this argument was essentially rejected in Booker, and the fact that the Court simultaneously issued an unpublished summary order rejecting other arguments raised by Sheikh — thus evidencing a conscious choice to publish this decision on a well-settled issue.

Readers, if there are any, are invited to offer speculations as to the Court’s motive. …

Monroe v. Kuhlman, Docket No. 03-3703 (2d Cir. Jan. 3, 2006) (Winter, Feinberg, Straub): This is somewhat of a rare bird: The Circuit concludes that the New York Court of Appeals improperly applied the state’s own contemporaneous objection rule and thus that its finding of a procedural default on direct appeal was “inadequate” to bar federal habeas review of the same question. Monroe claimed that his right to be present at all critical stages of the trial, as well as his right to “judicial supervision” of the trial, were violated when the state trial judge allowed the jury to view previously admitted evidence outside the presence of the judge and the parties during adjournments of the trial. Unfortunately, trial counsel did not object to the procedure. These claims were rejected on direct appeal. The N.Y. Court of Appeals found that (1) Monroe’s right to be present was not …

Sapia v. United States, Docket No. 03-2087 (2d Cir. Dec. 28, 2005) (Winter, Straub, Lay (by desig’n)): Section 851 of Title 21 provides that the enhanced penalties set forth in § 841(b) for defendants who commit a drug offense after sustaining prior drug convictions are triggered only if the Government files, before trial or the entry of a guilty plea, an information “stating in writing the previous convictions to be relied upon.” In this decision, the Court holds that the prior felony information requirement is not jurisdictional, and thus that an argument, raised in a collateral attack, that the sentencing court erred in imposing an enhanced sentence in the absence of a § 851 information is subject to procedural default analysis. And because Sapia could not satisfy the cause-and-prejudice inquiry, the Court dismisses his § 2255 petition.

The essential facts are simple. Sapia was indicted for conspiring to …

United States v. Stefan Irving, Docket No. 04-0971-cr (2d Cir. Dec. 23, 2005) (Cardamone, Jacobs, Cabranes): The majority opinion by Judge Cardamone affirms the defendant’s conviction on most counts, but reverses on two counts that were based solely on the defendant’s admissions, made in his personal journal, whose essential facts were uncorroborated by independent evidence. Judge Cabranes dissents on this point.

The decision further holds that (1) despite the Supreme Court’s decision in Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), no expert testimony or other extrinsic evidence is needed to prove that the children depicted in pornographic video footage are real and not virtual (on the tenuous assumption that a jury can tell the difference, at least when video footage (as opposed to still images) is at issue), and that (2) a 2003 warrant authorizing the search of Irving’s home was not based on …

United States v. Alaa Al-Sadawi, Docket No. 03-1784-cr (2d Cir. Dec. 23, 2005) (Walker, Cardamone, Parker): Yet another pyrrhic victory for the defense: The Court rules that the district court committed two evidentiary errors (one involving Crawford and the introduction of a co-defendant’s plea allocution at the defendant’s trial, and the other involving the use of flight as evidence of consciousness of guilt), but finds both harmless in light of the “overwhelming” evidence of the defendant’s guilt. What else is new?

Nothing earth shattering in the opinion. But the decision contains a good, thorough discussion of when the Government can and cannot use evidence regarding the defendant’s attempt to leave the jurisdiction as evidence of guilt. See Op. at 7-9. In sum, the probative value of the defendant’s behavior “as circumstantial evidence of guilt depends upon . . . four inferences . . . : (1) from the …

United States v. Ali Hamdi, Docket No. 03-1307-cr (2d Cir. Dec. 12, 2005) (Feinberg, Winter, Sotomayor): This decision — yet another in the criminal realm by Judge Sotomayor — has two principal holdings. First, the fact the defendant has completed his sentence and been deported does not moot the instant challenge to the length of his sentence, imposed pre-Blakely (and thus pre-Booker), because the length of the sentence “probably” would affect Hamdi’s ability, at a future date, to enter the U.S. on a non-immigrant visa. See Op. at 4-10. Second, a simple declarative statement in a plea agreement that the “[t]he defendant’s sentence is governed by the United States Sentencing Guidelines” does not prohibit the defendant from raising on appeal a claim that his sentence, imposed under the then-mandatory Guidelines regime, is invalid in light of Booker. See id. at 10-20. We will focus …

United States v. Phillips, Docket No. 04-2166-cr (2d Cir. Dec. 7, 2005) (Walker, Hall, Gibson (by desig’n)): Many had hoped that Booker‘s demotion of the Guidelines to mere advisory status would, at the very least, put an end to the endless stream of mind-numbing opinions analyzing Guidelines minutia churned out by the Circuit week after week. That hope has proven unfounded, as this decision again confirms.

The Court holds that unadjudicated juvenile conduct can constitute a predicate offense under a now-repealed version of the rarely seen enhancement under § 4B1.5(b), calling for a 5-level enhancement if the defendant, convicted of a qualifying sex crime, previously “engaged in a pattern of criminal activity involving prohibited sexual conduct.” U.S.S.G. § 4B1.5(b) (2002 ed.). Those interested in how the Court came to this fascinating conclusion are on their own. See Op. at 9-17. Suffice it to say that the …

Zapata v. United States, Docket No. 01-2575 (2d Cir. Dec. 6, 2005) (Sotomayor, Parker, Wesley): The Circuit vacates the district court’s denial of a § 2255 petition, based on Zapata’s IAC claim that trial counsel failed to consult with him about the possibility of an appeal following his 1999 sentencing, for lack of fact-finding on the critical question. The district court denied the petition on the theory that even assuming that counsel failed to consult with Zapata about an appeal, “petitioner is unable to demonstrate that his attorney had a duty to consult with him regarding his right to appeal.” Op. at 2-3. The Circuit didn’t want to play this “assumption” game, however, because it would present the following Hobson’s choice: (1) “[i]f we accept the assumption, we must engage in extensive legal reasoning predicated on a fact not yet determined”; or (2) “[i]f we reject the assumption, …

United States v. Avello-Alvarez, Docket No. 05-0638-cr (2d Cir. Dec. 6, 2005) (Sotomayor, Katzmann, Eaton (by designation)): This short opinion principally confirms that the law governing appellate review of upward departures in the length of the term of supervised release remains unchanged in light of Booker: Before and after that decision, the Circuit reviews such departures for reasonableness. The Court notes additionally, as it did in Crosby and Selioutsky, that “reasonableness has substantive and procedural dimensions,” and thus that the Court will review “both the length of the sentence as well as whether the district court treated the Sentencing Guidelines as advisory and considered the applicable Guidelines range and the factors listed in § 3553(a).” Op. at 3.

Here, the district judge upwardly departed (presumably from a range of 3 to 5 years) and imposed a 7-year term of supervised release, citing among other things …

United States v. Estrada, Docket No. 02-1543-cr (L) (2d Cir. Nov. 29, 2005) (Winter, Sotomayor, Wesley): This decision (1) upholds evidence seized as a result of the defendant’s response to post-arrest but pre-Miranda police questioning under the “public safety” exception first laid out in New York v. Quarles, 467 U.S. 649 (1984); and (2) finds that the district court erred (though harmlessly, of course) in blanketly limiting the impeachment of Government witnesses to the mere fact of their prior felony convictions while excluding the nature / name of those convictions under Rule 609(a)(1) of the Federal Rules of Evidence.

The holding on the Miranda issue is disturbing, though the Circuit’s law on the public safety exception was bad to begin with. See Op. at 7-10. Here, police officers executed an arrest warrant for defendant DeJesus in his home, based on two probation violations. They were also …

United States v. Vaughn, Docket No. 04-5136-cr (L) (2d Cir. Dec. 1, 2005) (Newman, Sotomayor, Daniels (by designation)): In a disappointing but hardly surprising decision, the Court concludes that the standard of proof at sentencing remains the preponderance standard and that acquitted conduct can still be used to calculate the Guidelines range. The Circuit’s position on the calculation of the Guidelines range in the post-Booker world has now become quite clear: The same rules that formerly governed pre-Booker continue to govern post-Booker, the only difference being that the end result of those calculations (i.e., the Guidelines range) is merely advisory and only one factor among several to be considered under 18 U.S.C. § 3553(a) in imposing sentence.

The decision also quickly rejects an ex post facto / Due Process challenge to the use of the remedial portion of the Booker opinion to …