United States v. Sash, No. 04-0499 (2d Cir. Jan. 26, 2005) (Walker, Miner, and Cabranes) (Op. by Miner).

In this opinion, issued two weeks after the Supreme Court’s decision in Booker (see entry below), the Second Circuit engages in a detailed analysis of Section 2B1.1(b)(9)(C)(ii) of the Guidelines, which calls for a 2-level enhancement when the offense “involved . . . the possession of 5 or more means of identification that unlawfully were produced from, or obtained by the use of, another means of identification.” The Court rejected the defendant’s argument that his conduct — replicating police badges for police officers — did not trigger the enhancement because it did not involve true identify theft, holding that the plain language of the Guideline controlled.

What’s interesting about the opinion is not what it discusses, but what it doesn’t discuss — namely, Booker (or even Blakely). The original sentencing …

Murray v. Greiner and Arce v. Fischer, Nos. 01-3833, 02-3574 (2d Cir. Jan. 5, 2005) (Leval & Cabranes, and Garaufis, D.J.) (Op. by Leval) :



This decision simply extends Villanueva v. United States, 346 F.3d 55 (2d Cir. 2003), holding that dismissal of a § 2255 petition on grounds of untimliness under § 2244(d) (establishing 1-year period to file such a petition) renders subsequent petitions “second or successive” within the meaning of § 2244(b) (and thus subject to its nearly impossible to satisfy gatekeeping requirements), to § 2254 petitions filed by state prisoners. The reasoning is that (1) the dismissal of a habeas petition will render subsequent petitions “second or successive” if the petition was “adjudicated on the merits”; (2) dismissal of a prior petition on grounds that presented a “permanent and incurable” bar to federal review qualifies as an adjudication on the merits; and (3) dismissal of …

Michael B. Ross, by next friend Gerard A. Smyth, v. Theresa Lantz, No. 05-8900 (2d Cir. Jan. 25, 2005) (Sack, Katzmann, and Hall) (per curiam)



FACTS: Michael Ross, convicted of murder in Connecticut, was scheduled to be executed on Wednesday, January 26, 2005, at 2 a.m. Ross (a so-called death penalty “volunteer”) has declined to challenge his death sentence, but lawyers from the state public defender’s office filed a habeas petition pursuant to 28 U.S.C. § 2254 on his behalf as “next friend.” The public defender’s office contends that Ross is not mentally competent to surrender his post-conviction rights. It presented testimony to Chief Judge Chatigny (of the District of Connecticut) from a psychiatrist indicating that Ross may not have been competent when he decided to forgo further challenges to his conviction and sentence due to years of seclusion on death row.

Yesterday, January 24th, Chief Judge …

United States v. Carlos Goiry and Luz Marina Munoz, Nos. 02-1010, 03-1061 (2d Cir. Jan. 24, 2005) (No. 02-1010: Walker, Cardamone, and Straub) (No. 03-1061: Winter, Straub, and Lay) (Opinion by Straub).

FACTS: In two cases consolidated on appeal, the defendants-appellants both entered guilty pleas and were sentenced by Judge Shirley Kram of the Southern District of New York. Judge Kram conducted the guilty plea proceeding (in one case) and the sentencing (in the other case) in her robing room, located just off her courtroom. As anyone who has practiced before Judge Kram knows, this is her standard practice.

Judge Kram did not make any findings to justify her actions, nor did she notify the public that she intended to close these proceedings. None of the parties objected to Judge Kram’s decision to conduct the proceedings in her robing room.

HELD: Conducting plea and sentencing proceedings in the …

I. The Holding:

1. Stevens for a 5-justice majority: The rule of Apprendi and Blakely – that the maximum sentence a judge may impose is the maximum sentence authorized on the basis of facts reflected in the jury verdict or admitted by the defendant – applies to the Sentencing Guidelines.

A. That is, Booker holds that the top of the Guideline range, as determined solely by facts found by the jury or admitted by the defendant at a guilty plea, constitutes the “statutory maximum” for Apprendi-Blakely purposes.

B. Thus, a judge may not impose a sentence higher than the top of this range based on facts that s/he alone has found.

2. Breyer for an entirely different 5-justice majority: The remedy for the Blakely violation in Booker’s case is simply to strike / excise two statutory provisions – 18 U.S.C. § 3553(b) and 18 U.S.C. § 3742(e). All else allegedly …

US v. PABON-CRUZ, Case No. 03-1457 (12/03/04). Defendant’s conviction for receiving or distributing child pornography is affirmed, however, his sentence is vacated where the district court has discretion to sentence defendant to either a fine or a term of imprisonment of not less than ten years or both, a ruling which was not clear at the time of sentencing.
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