United States v. Felix Valdez, Docket No. 04-3811-cr (2d Cir. Oct. 5, 2005) (Walker, Cardamone, Parker): There is little of interest in this largely fact-specific opinion, discussing the well-established contours of the diminished capacity departure under U.S.S.G. § 5K2.13. Valdez argues on appeal that the district court (Judge Duffy) “incorrectly applied the Guidelines by using the wrong legal standard when it denied a downward departure for dimished capacity.” Op. at 10. After reviewing the record of the sentencing proceeding, the Circuit disagrees and concludes that Judge Duffy, despite some questionable grumblings to the contrary, understood the nature of his departure authority under § 5K2.13.

The Court remands for a Crosby proceeding, however, since the sentencing occurred before Booker. (At which proceeding, one assumes, Valdez will simply convert his unsuccessful pitch for a § 5K2.13 departure into an equally unsuccessful argument for a below-the-Guidelines sentence pursuant to Booker and …

United States v. Martin, Docket No. 04-1600-cr (L) (Petition for Rehearing Denied, Oct. 3, 2005) (Walker & Wesley) (Pooler, dissenting): In a published decision, Chief Judge Walker sticks to his guns and denies the defendant’s petition for rehearing in this controversial case involving a Fourth Amendment challenge to a search warrant issued in connection with the infamous “Candyman” investigation. (Click here for the original opinion by the Chief, and click here for our criticism of it). Judge Pooler again dissents, as she did originally. Given this continuing disagreement, and given in addition the directly contrary views of the panel in United States v. Coreas (click here for our over-the-top praise of Judge Rakoff’s critique of the Martin majority opinion), we suggest once more that en banc rehearing is appropriate.

We add only one additional point in this post, concerning the majority’s continuing insistance that, somehow, the “welcome message” …

United States v. Rodriguez et al., Docket No. 03-1639 (2d Cir. Oct. 3, 2005) (Calabresi, Pooler, Parker): How does that line go — “Oh what a tangled web we weave, when we first practice to deceive”? Here, the defendants’ “practice to deceive” — a rather inspired scheme to rip off a drug dealer (who turned out to be an actual, undercover DEA agent posing as a drug dealer) by pretending to be DEA agents themselves — led not only to a tangled web, but also to a federal indictment for conspiracy to commit a Hobbs Act robbery. The defense at trial was that although the defendants conspired to take drugs from the (fake) drug dealer by trickery (i.e., the ruse of being DEA agents “confiscating” the dealer’s drugs), they did not conspire to take the drugs by force (an essential element of the Hobbs Act robbery …

United States v. Duane Arthur Myers, Docket No. 04-3498-cr (2d Cir. September 27, 2005) (Sotomayor, Raggi, Hall): This is yet another decision in a long line of cases evaluating the propriety of an intrusive condition of supervised release imposed by a district court on a kiddie porn offender. Readers should consult the opinion themselves to determine whether our evaluation is correct: What a terribly convoluted non-solution to a relatively simple problem!

Here, the district court imposed a 78-month sentence and a number of special conditions of supervised release prohibiting the defendant — convicted of receiving sexually explicit photos from an underaged girl in Colorado — from unsupervised contact with underaged children. Myers did not challenge these conditions. The court also imposed a special condition prohibiting Myers from having any contact with his 5-year-old son without the prior approval of the Probation Officer. The court clearly did so …

United States v. Hector B. Ramirez, Docket No. 03-1280 (2d Cir. September 27, 2005) (Sack, Katzman, Parker): This case rejects a Sixth Amendment, Blakely/Booker-based challenge to the statutory safety valve provision, 18 U.S.C. § 3553(f) (permitting a court to impose a sentence without regard to otherwise applicable statutory minimum if defendant meets a number of conditions), on a narrow ground involving the Almendarez-Torres exception to the Apprendi rule. It thus leaves open the possibility of a future Sixth Amendment challenge to § 3553(f) based on grounds apart from “the fact of a prior conviction,” for instance the denial of safety-valve eligibility based on a determination that the defendant qualified as an organizer or leader under the Guidelines. See id. § 3553(f)(4). The decision also does not discuss the implication of Booker on the application of Sections 2D1.1(b)(7) and 5C1.2 of the Guidelines, which authorize a …

United States v. Edward Gandia, Docket No. 04-6477-cr (2d cir. Sep. 19, 2005) (Straub, Sack, and Kravitz, D.J.): Yet another fine opinion by Judge Sack, this time reversing the district court’s order denying Mr. Gandia’s motion to suppress evidence seized as the result of a “protective sweep” of the defendant’s apartment. Although no new legal ground is broken, the opinion serves as a reminder to all that the “protective sweep” exception to the warrant requirement, recognized in Maryland v. Buie, 494 U.S. 325 (1990), does not automatically allow the police to ramble through a suspect’s home to look for 3rd parties whenever the police are present in the home; rather, such sweeps are permitted only where police have “a reasonable, articulable suspicion that the house is harboring a person posing a danger to those on the arrest scene.” Id. at 336. The opinion also contains some good …

United States v. Myrisa V. Lewis, Docket No. 04-4105-cr (2d Cir. Sep. 15, 2005) (Feinberg, Sack, Katzmann): This is a well-reasoned and interesting opinion by Judge Sack — and another good win by Ed Zas of this Office (see here for Ed’s other win this month). The decision holds that a district court must state its reasons for imposing a sentence that is outside the advisory Chapter 7 range for revocation of supervised release or probation, a holding that obviously has broader implications given that the governing statute applies to all sentences, whether imposed upon revocation or upon conviction. The decision also contains an interesting discussion of the still-unsettled issue of whether standard plain error analysis, or a more “relaxed” form of plain error review, is applicable to errors occurring at sentencing.

The essential facts are simple. While on supervised release, Ms. Lewis tested positive for drug use …

United States v. Sean Carr, Docket No. 04-0546-cr (2d Cir. Sep. 14, 2005) (Feinberg, Sack, and Katzmann) (Op. by Sack): Despite its glorious role in our early history, the jury’s power of nullification has long been viewed with great disfavor by the Circuit. In this decisions, the Court clarifies that a district court does not error when it affirmatively tells the jury that it has “the duty to convict” if it finds that the Government has proved the defendant’s guilt beyond a reasonable doubt. This outcome should not come as a great surprise, given that a trial court is not required to inform a jury of its power to nullify, e.g., United States v. Edwards, 101 F.3d 17, 19 (2d Cir. 1996), and given the Court’s general view of nullification as a lawless and regrettable exercise of naked power, e.g., United States v. Thomas, 116 F.3d …

United States v. William MacPherson, Docket No. 04-4825-cr (2d Cir. September 13, 2005) (Op. by Raggi): In this decision, the Circuit vacates a judgment of acquittal entered by Judge Johnson in the E.D.N.Y. following a jury verdict convicting MacPherson — an NYPD officer — of structuring currency transactions to avoid reporting requirements, in violation of 31 U.S.C. § 5324(a)(3). The Circuit found that there was enough circumstantial evidence to sustain the jury’s finding that MacPherson had the requisite mens rea when he made 32 separate cash deposits, none exceeding the $10,000 trigger for a CTR filing and totalling about $250,000 over a four-month period, ruling that “a pattern of structured transactions, . . . may, by itself, permit a rational jury to infer that a defendant had knowledge of and the intent to evade currency reporting requirements.” Op. at 25.

Given the facts as recited by the opinion and …

United States v. Brian Jones, Docket No. 04-2506-cr (2d Cir. July 19, 2005): This is a decision from July that we missed before taking our summer hiatus. Guest blogger Darrell Fields of the Appeals Unit of the Federal Defenders in NYC provides the following analysis of this important decision.

In United States v. Jones, 415 F.3d 256 (2d Cir July 19, 2005) , the Circuit held that a New York State youthful offender adjudication (“YO”) qualifies as an “adult conviction” under the Career Offender Guideline (U.S.S.G. § 4B1.1), even though (1) Guidelines commentary specifically provides that a conviction sustained before age 18 will be deemed an “adult conviction” only “if it is classified as an adult conviction under the laws of the jurisdiction in which the defendant was convicted,” id. § 4B1.2, comment. (n.1), and (2) New York State clearly does not so classify a YO adjudication. The …

United States v. Cordoba-Murgas et al., Docket No. 04-3131-cr (L) (2d Cir. Sep. 7, 2005) (Op. by Cabranes): A great decision by the Circuit, and a hard-fought win by Ed Zas of this Office. In this opinion by Judge Cabranes, the Circuit rules that in light of drug quantity’s status as an element of the § 841(a) offense, a defendant cannot be sentenced to more than 20 years’ imprisonment when the indictment (charging an offense under 21 U.S.C. § 841 et seq.) does not allege a particular quantity, even where the defendant specifically allocuted to distributing a quantity of drugs sufficient to trigger one of the aggravated offenses under § 841(b). Although such an allocution effectively waives the 6th Amendment requirement of submitting the quantity decision to the jury, e.g., United States v. Yu, 285 F.3d 192, 198 (2d Cir. 2002), it does not waive the …