United States v. Francisco Lake, Docket No. 04-3238-cr (2d Cir. August 15, 2005) (Op. by Newman): Judge Newman’s monopoly in shaping Circuit law concerning appellate review of pre-Booker sentences in the wake of Booker continues. In this opinion, the Court confirms what Fagans implicitly held and what the Circuit’s practice has been since that decision: Where a defendant, pre-Booker, objected to the use of mandatory Guidelines at sentencing, the result on appeal will almost inevitably be a remand for resentencing. Lake spells out what Fagans left unsaid: Remand for resentencing is required because the Government will almost never be able to meet its burden of showing that the Booker error was harmless.

Lake was sentenced to 540 months’ imprisonment, a sentence neither at the bottom nor top of the applicable ranges. Since his sentencing occurred after Blakely but before Booker, he raised a Sixth Amendment …

United States v. Andre O. Logan, Docket No. 03-1290 (2d Cir. August 15, 2005) (Op. by Cardamone): This opinion discusses some mildly interesting Confrontation Clause issues related to Crawford v. Washington, and also upholds the federal arson statute, 18 USC § 844, against a Commerce Clause challenge. It holds that (1) an out-of-court statement offered not for its truth need not satisfy the requirements of Crawford, which concerns only true hearsay (i.e., an out-of-court statement offered for the truth of the matter stated); and (2) § 844 does not violate the Commerce Clause when applied to the arson of a rented residence, in light of the Supreme Court’s decision in Jones v. United States, 529 U.S. 848, 854 (2000) (explicitly re-affirming Russell v. United States, 471 U.s. 858, 859-60 & n.4 (1985) (holding that congressional power extends to regulation of rented residence)).

The essential …

United States v. Dennis Wellington, Docket No. 04-3198-cr (2d Cir. August 3, 2005) (Op. by Cabranes): The addage that a lawyer who represents himself has a fool for a client applies equally to a defendant who, though represented by counsel, insists that counsel abide by his every whim regarding trial strategy, regardless of how illogical or foolish. In this case, the defendant was charged with illegal reentry and, after several failed pretrial motions to dismiss the indictment, insisted on proceeding to a bench trial on stipulated facts. Counsel told the court that defendant wished to do so because of a desire to preserve certain issues for appeal without foreclosing the possibility of an acceptance-of-responsibility reduction at sentencing. Defendant executed a written waiver of his right to a jury trial, and then stipulated in writing to every element of the charged offense.

The court of course found the defendant guilty. …

United States v. Bernard Jaffe. Jr., Docket No. 04-1278-cr (2d Cir. August 2, 2005) (Winter, Katzmann, Raggi) (Op. by Winter): This case addresses a host of related issues concerning restitution. Jaffe pled guilty to making false statements in connection with securing a $20 million loan from a bank, and the district court ordered restitution in the full amount of the victim’s loss, as required by the MVRA, 18 USC § 3663A et seq. Additionally, the district court imposed a schedule of restitution payments that, among other things, required a $1.5 million payment by September 2005 and subsequent payments of at least $150,000 each January. Jaffe objected to the schedule on numerous grounds, claiming inter alia that (1) the district court ignored his non-legal obligation to support a 43-year-old adult daughter; and (2) the schedule violated ERISA and Florida’s homestead exemption law because the only way that he could meet …

United States v. Clifford Kerley, Docket No. 04-4537-cr (2d Cir. 2005) (McLaughlin, Straub, Hall) (Op. by McLaughlin): This is a prosecution under the federal Deadbeat Parents Punishment Act, 18 U.S.C. § 228, and based on defendant’s failure to comply with a child-support order issued by a New York state court. The district court granted the defendant’s motion to dismiss the indictment, agreeing with Kerley that a state hearing officer did not have “subject matter jurisdiction” to enter the underlying order of support because he failed to, as apparently required by New York law, first enter a temporary order of support.

The Circuit reversed, on 2 grounds. First and foremost, the Court ruled that “defendants charged with violating the DPPA cannot collaterally challenge the subject matter jurisdiction of the state court that entered the underlying support order.” Op. at 3. This ruling creates somewhat of a Circuit split, as the …

United States v. Allan F. Peters et al., Docket No. 03-1435-cr (2d Cir. July 26, 2005) (Walker, Leval, Katzmann) (Op. by Leval): This case primarily holds that so long as the Government’s conduct, when looked at in light of all the circumstances, does not reasonably appear to constitute an effort to influence the sentencing court in a manner inconsistent with the plea agreement, there will be no finding of a breach. It also contains some encouraging dicta concerning the applicability of the sophisticated means enhancement where the defendant himself did not know about the use of such means by other participants in the scheme.

Here, the Circuit found no breach despite the fact that (1) the Government initially told the court erroneously that it agreed with everything in the PSR — even though the PSR included 2 enhancements not included in the plea agreement; and (2) the Government’s subsequent …

This blog will be on hiatus until August 11th or thereabouts. Please check back again at that time.…

United States v. Tammy Brady, Docket No. 04-0729-cr (2d Cir. July 22, 2005) (Cardamone, Cabranes, Sotomayor) (Op. by Cardamone): This case is a good illustration of how the pre-Booker mandatory Guidelines regime often produced irrational and unnecessarily harsh results that fail to comport with our basic sense of justice. At a pre-Booker sentencing, Judge Gleeson — no softie — granted a relatively small downward departure from a range of 12 to 18 months and imposed a sentence of 5 years’ probation with 3 months’ home detention. The departure was made under U.S.S.G. § 5H1.3 — as recommended by the EDNY Probation Office (also no bargain, as defense lawyers are well aware) — to account for (1) the horrific abuse that Ms. Brady suffered throughout her childhood and adolescence, which (2) created a mental disease or condition that (3) in turn contributed to her commission of the instant …

United States v. Marshall Ayers, Docket No. 04-0103 (2d Cir. July 21, 2005) (Sack, Raggi, Hall) (per curiam): Some of us cynically speak of the “Rule of Severity” occasionally applied in criminal cases, especially when ugly facts are involved. The Rule is simple: Where a statute or rule can reasonably be interpreted in one of two ways, the Court will adopt the interpretation that results in greater punishment for the well-deserving defendant. Unlike its much better known cousin, the Rule of Lenity, the Rule of Severity does not of course officially exist. Yet its force is well-known to those who practice in this field.

The issue in this case is whether the defendant’s effort to obstruct the state‘s investigation of his crime, which preceded the federal investigation and prosecution of a different but related crime, triggers the obstruction enhancement of U.S.S.G. § 3C1.1 for purposes of the federal …

United States v. Germaine Robinson, Docket No. 04-6664 (2d Cir. July 20, 2005) (Jacobs, Pooler, and Hurd, D.J.) (Op. by Jacobs): This opinion contains some interesting discussion about several issues arising in the context of revocation of supervised release. First, it discusses the type of notice that a defendant (a “supervised releas-ee”?) must be provided with before revocation. Second, it quickly rejects a Booker challenge to the revocation scheme, but then adds some curious dicta that has piqued the interest of the blogosphere (see, e.g., Professor Berman’s site). Finally, it discusses the difference between simple possession of drugs and possession of drugs with intent to distribute (or simply distribution) as it affects the advisory range upon revocation.

The essential facts are simple. Robinson was convicted in 1999 of possession of cocaine base with intent to distribute. His Guidelines range was 33 to 41 months, and he was sentenced …

United States v. Daniel Rodriguez, Docket No. 04-4157-cr (2d Cir. July 20, 2005) (Straub, Wesley, and Sessions, D.J.) (Op. by Straub): Ladies and gentlemen, we have a circuit split. In this decision, the Circuit rules that the crime of attempted reentry into the United States following deportation, in violation of 8 U.S.C. § 1326(a), is not a specific intent offense, and thus that the Government need not charge or prove that the defendant knew that his conduct was unlawful, knew that he needed the permission of the Attorney General to reenter, or knew that he did not have such permission when he intentionally attempted to reenter. Rather, the Government need only prove that the defendant intentionally attempted to reenter (as opposed to, e.g., being transported into the good ol’ U.S.A. while in a comatose state against his will). This reading of the attempted reentry offense — in accordance with …