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
United States v. Siindima, Docket No. 06-2245-cr (2d Cir. March 5, 2007)(Sack, Katzmann, Parker). It has long seemed as if reasonableness review in the Second Circuit was a one-way street permantently running in the wrong direction. Bucking the trend, at last, is Sindima. Here, the Court found that a 36-month probation violation sentence was substantively … Read more
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
United States v. Reich, Docket No. 06-1445-cr (2d Cir. Mar. 2, 2007) (Kearse, Sotomayor, Koeltl): This opinion principally holds that 18 U.S.C. § 505, which makes it a crime to “forge[] the signature of any judge … of any court of the United States … or forge[] or counterfeit[] the seal of any such court … Read more
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
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
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
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
United States v. Williams, Docket Nos. 05-4928-cr (L) & 05-4956-cr (2d Cir. Jan. 30, 2007) (Winter, Cabranes, Korman): The only item worth noting in this opinion, in which both defendants appeal the district court’s refusal to resentence them following a Crosby remand, is the Circuit’s reminder to district judges that their task at sentencing is … Read more
Our colleague Steve Sady of the Federal Public Defender Office in Oregon has prepared another extremely useful resource, this time discussing BOP issues affecting our clients before and after sentencing. The memo discusses, among other things, the status of litigation concerning the BOP’s view of halfway house placement, the calculation of good-time credit, and eligibility … Read more