United States v. Weisser, Docket No. 01-1588 (2d Cir. 2005) (Decided June 20, 2005; Amended July 5, 2005): Two weeks ago, this Blog pointed out that in this opinion, the Court stated in significant dicta that certain facts concerning a defendant’s criminal history do not fall within the Almendarez-Torres exception to the Apprendi–Blakely rule, thus limiting the scope of this often-critized decision. Yesterday, the Court issued an amended opinion in the same case and expanded upon this language. The amended opinion now explicitly states that certain facts relating to criminal history are indeed too far removed from “the conclusive significance of a prior judicial record to fall within that exception.” Amended Op. at 27 fn. 10, quoting Shepard, 125 S. Ct. at 1262. Kudos to the Court for clarifying its position on an important issue!

As this Blog previously noted:

“Weisser also appealed various aspects of …

Smith v. Duncan, Docket No. 04-0604-pr (2d Cir. June 21, 2005) (Meskill, Calabresi, Wesley) (Op. by Wesley): This is yet another habeas petition, raising potentially meritorious substantive claims, that is dismissed by the Court because of defense counsel’s failure to preserve or present the relevant issues to the state courts. No new rule is established by the decision; it is nonetheless worth a perusal, if only to remind oneself of the hazards faced by habeas petitioners if counsel in state proceedings fail to exercise great care in prosecuting the state appeal.

The essential facts are simple. Smith was tried for murder in state court after he shot the victim to death. Smith’s sole claim is self-defense, arguing that the victim was a gang member of whom he was quite afraid. Smith sought to introduce 2 pieces of evidence to corroborate this defense — the tape of Smith’s 911 call …

United States v. Bermudez, Docket No. 02-1699 (L) (2d Cir. June 29, 2005) (Walker, Pooler, Wesley) (per curiam): Let this be a warning to all the kids out there: You launder money, you lose something even more precious than your freedom — your Miami condo and even your Swiss bank account. In this short opinion, the Court affirms a district court’s order (1) requiring the defendant — convicted of laundering drug proceeds in Colombia — to forfeit $14.2 million to the Government (the amount of money he was accused of laundering on behalf of his drug dealin’ clients), and (2) substituting his Miami residence and funds in a Swiss bank account in lieu of this amount because the defendant did not actually have this money (after all, he was only laundering it for his clients, not keeping it). The Court acknowledged that such forfeiture was “extremely punitive and burdensome,” …

Credit must be given to Professor Berman for spotting some great language from the Supreme Court’s recent decision in Halbert v. Michigan (link here for his discussion) that seriously undermines the Second Circuit’s decision in Morgan, which enforced an appellate waiver entered into by the defendant before Blakely was decided. Justice Ginsburg’s opinion for the majority, expecially as highlighted and construed by Justice Thomas in his dissent, contains great language gutting Morgan‘s rationale and supporting an argument that a defendant cannot waive a right that was not previously recognized — e.g., his Sixth Amendment right not to be sentenced under the mandatory Guidelines regime.

Halbert‘s primary holding is that a defendant has the constitutional right to appointed counsel on his/her first appeal, even where the state has made that appeal a discretionary one rather than one that the defendant is entitled to as a matter …

United States v. Tesoriero, Docket No. 04-2017 (2d Cir. June 28, 2005): The Government is apparently still quite sore about Crosby (and likely even more so about Fagans) and its holding that all plain-error cases pending on direct review must be remanded to the district court for a determination of whether the defendant’s “substantial rights” (in plain error parlance) were affected by the Booker error (i.e., the use of mandatory Guidelines). In this case, the defendant was sentenced to the 10-year statutory minimum for a § 841(b)(1)(A) offense at the pre-Blakely sentencing, despite the fact that he cooperated with the Government and earned a § 3553(e) / 5K1.1 motion as a result. Defendant sought a Crosby remand on appeal and the Government opposed, citing United States v. Sharpley, 399 F.3d 123 (2d Cir. 2005), and arguing that because the defendant received the statutory minimum …

United States v. Canova, Docket Nos. 03-1291, 03-1300 (2d Cir. June 21, 2005) (Sack & Raggi) (Judge VanGraafeiland passed away after oral argument) (Op. by Raggi): In this lengthy opinion — issued 1 1/2 years after the case was argued — the Circuit remanded for resentencing, after the district court had imposed a one-year term of probation premised upon (1) a finding that no pecuniary loss resulted from the defendant’s involvement in a Medicare fraud, and (2) a downward departure grounded in the defendant’s extraordinary history of public service and good works. The Panel concluded that the district court had erred in calculating the relevant loss amount (by some $5 million) but rejected the Government’s challenge to the downward departure. The Court concluded that the error in calculating the loss amount was signficant enough to preclude a finding that the sentence was reasonable notwithstanding the error. But in the …

McCullough v. Bennett, Docket No. 04-0081-pr (2d Cir. June 24, 2005) (Meskill, Newman, Cabranes) (Op. by Newman): The question presented in this case is whether, as Judge Newman succinctly puts it, “convictions and consecutive sentences on two counts of criminal possession of a weapon [in the second degree under N.Y. Penal Law § 265.03] violate petitioner’s double jeopardy rights when the two counts reflected shootings at two victims getting out of the same vehicle in rapid succession.” Op. at 1-2. CPW-2nd punishes anyone who “possesses a loaded firearm . . . with intent to use the same unlawfully against another.” The evidence at trial showed that McCullough approached a parked car with a loaded gun and fired at Person A when A fled the vehicle from the driver side of the car. McCullough then went to the passenger side, threatened Person B (another occupant of the car), pulled B …

United States v. William Byrd, Docket No. 04-3607-cr (2d Cir. June 24, 2005) (Walker, Cardamon, Owen, D.J.) (per curiam): The Circuit holds in this very short opinion that the preponderance standard governs the determination of whether a defendant has breached a plea agreement, even after Booker. The entirety of the Court’s reasoning is this: “Booker. . . did not speak to nor, in our view, affect the appropriate standard of proof applicable to a finding that the defendant breached his plea agreement. Such a finding was before Booker, and remains after Booker, within the province of the sentencing judge subject to a preponderance of the evidence standard.” Op. at 3.

In itself, this decision is not of great significance. One wonders, however, what effect Byrd will have on a far more significant question that remains open in the Circuit: What is the appropriate standard …

United States v. David Martinez, Docket No. 04-2075-cr (Sotomayor, Raggi, Hall) (Op. by Sotomayor): In a case of first impression in the Circuit, the Court rules that the Sixth Amendment right of confrontation does not apply to sentencing hearings, even in light of Crawford v. Washington, 541 U.S. 36 (2004), and United States v. Booker, 125 S. Ct. 738 (2005). The Court thus rejected the defendant’s claim that his confrontation rights were violated when the district court relied on hearsay testimony introduced at a Fatico hearing to substantially increase his Guidelines sentencing range.

Unfortunately, Martinez is a short opinion that fails to address or account for the revolution wrought by the Apprendi line of cases. The decision makes no effort to, as Justice Stevens aptly put it in his Booker majority opinion, “preserve Sixth Amendment substance” in light of the realities of modern sentencing practice. 125 S. …

Serrano v. Fischer, Docket No. 03-2670 (2d Cir. June 20, 2005) (Winter, Sotomayor, and B.D. Parker) (Op. by Sotomayor): In this dismissal of a habeas petition, the Circuit narrowly held that, under the particular facts of the case, the state court decisions rejecting the petitioner’s deprivation-of-counsel claim were not contrary to or an unreasonable application of the governing Supreme Court precedent. Despite its narrowness, the opinion discusses an issue with broad implications for habeas petitions under the AEDPA deferential standard. The Court explained that where the governing Supreme Court precedent provides no bright-line rule but instead only a “roughly defined” one requiring a context-specific inquiry, it is less likely that the state court’s applications of that precedent will be considered unreasonable, and thus less likely that the writ will be granted under §2254(d)(1).

The essential facts are as follows. Serrano was tried and convicted in state court of second …

United States v. Weisser, Docket No. 01-1588 (2d Cir. June 20, 2005) (Walker, Cardamone, and Owen, D.J.) (Op. by Walker): In this otherwise ho-hum opinion in which the primary appellate issue concerns the defendant’s claim that he has been deprived of the right to appeal because much of the evidence presented against him at trial was destroyed during the September 11th attacks on the World Trade Center, the Circuit makes a very interesting statement about the limit of the Almendarez-Torres exception to the Apprendi–Blakely rule. The opinion is worth a quick perusal for that statement alone.

The essential facts are simple. Weisser lived in San Francisco and engaged in AOL chat sessions with someone claiming to be an 11-year-old boy in New York. The “boy” was of course an undercover agent fishing for customers (er, defendants). Much sexual conversation ensued, along with a planned liaison in a …