Shepard v. United States, No. 03-9168 (U.S. March 7, 2005): In a much anticipated case finally decided today, the Supreme Court (by Justice Souter for a 5-justice majority) ruled that in determining whether a prior conviction qualified as a predicate felony for the Armed Career Criminal Act, 18 U.S.C. § 924(e), when the statute of conviction is sufficiently broad to include both qualifying and non-qualifying offenses, a sentencing court “is generally limited to examining the statutory definition [of the prior offense of conviction], charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.” Although the holding of the case is important in itself, it is the decision’s uncertain ramification for the continuing viability of the “prior conviction” exception to the Apprendi rule that has generated the most interest.

In Shepard, the Government attempted to rely …

United States v. Silvio Spallone, Docket No. 03-1791 (2d Cir. March 4, 2005) (Sack, Raggi, and Hall) (Op. by Raggi): In this case, the Second Circuit clarifies that a district court retains the power to interpret ambiguities in its own sentencing orders, even outside the temporal and other limits set for correction of sentences found in Rules 35 & 36 of the Federal Rules of Criminal Procedure.

Here, the defendant pled guilty to tax evasion and was originally sentenced to 30 months’ imprisonment, 3 years’ supervised release, and $2.45 million in restitution. Following a Rule 35(b) motion by the Government (in exchange for the defendant’s cooperation while in prison), the district court entered an order stating that “the defendant [] be sentenced to time served.” The defendant was promptly released.

After his release, the defendant claimed that neither the supervised release nor the restitution portions of his sentence were …

United States v. Williams, Dkt. No. 04-2882-cr (2d Cir. February 23, 2005)

In Williams the Circuit, with Judge Newman writing, has added further comment on its plain error approach in Booker/Fanfan cases, as set out in United States v. Crosby, noted here. The Court reiterated the two types of errors in Booker and Fanfan — mandatorily enhancing a sentence based on facts not found by the jury and, as in Fanfan, “mandatorily imposing a Guidelines sentence even though it is based only on facts found by the jury.” And it once again held that the proper response to such errors was to remand to the district court, not for resentencing, but to determine whether a materially different sentence would initially have been imposed under Booker and Fanfan, and if so, to conduct a resentencing.

The major portion of the opinion consists of the Court’s response to …

In re Grand Jury Investigation (United States v. John Doe), Dkt. No. 04-2287-cv (2d Cir. February 22, 2005)

Creating a circuit split, but in a case that may not be reviewable in the Supreme Court, the Circuit holds that the attorney-client privilege operates with respect to government officials and their government lawyers to the same extent that it applies in the private sphere. The opinion, written by Chief Judge Walker, and joined by Judges Leval and Jacobs, is a resounding reaffirmation of the “public interest” served by the privilege.

In the investigation of former Governor John G. Rowland of Connecticut, the government had subpoened the former chief legal counel to the Office of the Governor to testify to communications concerning the receipt of gifts by officials and the “meaning of related state ethics laws.” The Office of the Governor (both before and after Governor Rowland’s resignation) asserted the privilege, but …

United States v. Sharpley, No. 04-2934 (2d Cir. Feb. 16, 2005): In Sharpley, after quickly disposing of two merits-based challenges to the defendant’s convictions for sexually exploiting a child for production of visual material (18 U.S.C. section 2251) and for being a felon in possession of a firearm (18 U.S.C. section 922(g)(1)), the Court rejected an appeal of a 180-month sentence, where the length of the sentence was driven entirely by a statutorily-imposed mandatory minimum, rather than the Sentencing Guidelines. Mr. Sharpley’s applicable sentencing range would have been 108 to 135 months but for the 15-year mandatory minimum, which effectively turned the “range” into a “point”. The Court held that this “is the rare case where we can determine without remand that the district court’s use of the Guidelines as a mandatory regime was harmless error,” because Sharply could not obtain any improvement in his sentence in resentencing. Indeed, …

Readers should rest assured that we continue to monitor the Second Circuit each day for new criminal and habeas (and sometimes immigration) decisions. There have been no new posts on this Blog simply because the Court has not issued any published decisions in these areas in the last week and a half.

On the Booker / Crosby front, the only news to report is that the U.S. Attorney’s Offices for both the Southern and Eastern Districts of New York are complying with Crosby for cases pending on appeal and are consenting to motions for a remand, consistent with Crosby, in all cases on direct appeal in which the sole issue raised concerns Blakely / Booker. The only exception to this policy, apparently, are cases involving plea agreements with appellate waivers. The Government intends to argue that those waivers, even if entered into before Blakely, are enforceable against …

United States v. Fleischer, No. 04-3911 (2d Cir. Feb. 3, 2005) (UNPUBLISHED SUMMARY ORDER): In a little noticed unpublished summary order, a panel of the Circuit upheld an appeal waiver, contained in a plea agreement entered before the Supreme Court’s Blakely decision, and dismissed an appeal in which the defendant challenged his Guidelines-imposed sentence. In resolving this complicated question, the panel simply pointed to the Court’s earlier decision in United States v. Morgan, 386 F.3d 376 (2d Cir. 2004), as dispositive: Appellant’s argument that “the waiver provision in his plea agreement is inoperative because it was entered before the Supreme Court clarified the Sixth Amendment’s application” in Blakely and Booker “is clearly foreclosed by our recent decision in United States v. Morgan.” (Summary Order at 3).

Morgan, of course, says no such thing. Rather, Morgan involved an appeal raising a typical Apprendi challenge (to a sentence …

Just moments ago, the Second Circuit issued a blanket order addressing all previously decided criminal cases in which the mandate had been withheld pending the Supreme Court’s decision in Booker, pursuant to Chief Judge Walker’s August 6, 2004, order. Please see the Circuit’s website for this blanket order (www.ca2.uscourts.gov).

As expected in light of Crosby (see below), the Court is permitting all appellants in those cases (listed in an Appendix attached to the court’s blanket order) to have their cases remanded back to the district court for a determination of whether a resentencing is warranted. Any appellant desiring such a remand must simply complete a very basic form, attached to the Court’s order, and return it to the Court (either by FAX or by mail). If an appellant does not wish to have his/her case remanded, s/he need do nothing.

No precise deadline is given for when …

United States v. Harrison, Docket No. 04-4725 (2d Cir. Feb. 3, 2005) (per curiam). Not much more to add — the title to this post says it all. Quite a mystery as to why the defendant did not simply appeal the magistrate’s detention order to the district court, rather than directly to the Second Circuit, given that the law is (and has long been) so clear on this issue …
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Some additional comments regarding Fleming (No. 04-1817-cr) to supplement David’s excellent post below on the “Booker Trilogy” issued by the 2d Circuit on February 2nd.

Though Crosby is clearly the Big Daddy of the bunch, Fleming must not be overlooked because it answers two critical questions left somewhat unanswered in Crosby — (1) what does it mean that judges have to “consider” the Guidelines range in imposing sentence, post-Booker? and (2) what does “reasonableness” mean on appellate review? Fleming (also by Judge Newman, and argued two days after Booker was decided — the same day as Crosby) is, essentially, the first appeal of a post–Booker sentencing. This is because it involved the appeal of a sentence imposed upon revocation of supervised release, and the sentencing phase of a revocation proceeding, even in the pre-Booker world, was basically the same as a sentencing phase …

United States v. Crosby, No. 03-1675 (February 2, 2005)

United States v. Fleming, No. 04-1817-cr (February 2, 2005)

United States v. Green, No. 04-6564-cr (February 2, 2005)

In one remarkable opinion in Crosby and its two sidekicks, Fleming and Green, the Circuit discusses, if not settles, many of the issues involved in carrying out the Booker remedy. Crosby in particular is a must-read, since no summary can do it justice. It makes a fine addition to Judge Newman’s long line of distinguished sentencing opinions. It considers the implications of Booker broadly, as well as with reference to the case at hand, and in doing so covers a broad swath of sentencing law.

In considering the application of Booker to future cases, one noteworthy theme of the Crosby opinion is that the Guidelines have not become merely “a body of casual advice.” A somewhat contrasting theme, however, is that to …