United States v. Avello-Alvarez, Docket No. 05-0638-cr (2d Cir. Dec. 6, 2005) (Sotomayor, Katzmann, Eaton (by designation)): This short opinion principally confirms that the law governing appellate review of upward departures in the length of the term of supervised release remains unchanged in light of Booker: Before and after that decision, the Circuit reviews such … Read more
United States v. Estrada, Docket No. 02-1543-cr (L) (2d Cir. Nov. 29, 2005) (Winter, Sotomayor, Wesley): This decision (1) upholds evidence seized as a result of the defendant’s response to post-arrest but pre-Miranda police questioning under the “public safety” exception first laid out in New York v. Quarles, 467 U.S. 649 (1984); and (2) finds … Read more
United States v. Vaughn, Docket No. 04-5136-cr (L) (2d Cir. Dec. 1, 2005) (Newman, Sotomayor, Daniels (by designation)): In a disappointing but hardly surprising decision, the Court concludes that the standard of proof at sentencing remains the preponderance standard and that acquitted conduct can still be used to calculate the Guidelines range. The Circuit’s position … Read more
United States v. Steven Robinson, Docket No. 04-0889-cr (2d Cir. Dec. 5, 2005) (Walker, Leval, Lynch (by designation)): This decision upholds, on a Government appeal, the district court’s grant of the defendant’s Rule 33 motion for a new trial on two counts on which he was convicted by a jury. The principal issue on appeal … Read more
Today, the Circuit posted a reminder that new Local Rules 25 and 32(a) will be going into effect this Thursday, December 1st. New Rule 32 essentially requires counsel in all cases to submit a digitized version of any brief filed, in PDF format, via e-mail to the Circuit, in addition to the 10 paper copies … Read more
United States v. Michael Bliss, Docket No. 04-1163-cr (2d Cir. Nov. 23, 2005) (Meskill, Sack, Parker): This case primarily confirms that a defendant’s flight from arrest, even when it results in a year-long delay in his apprehension by law enforcement, is not in itself sufficient to trigger the 2-level obstruction enhancement under U.S.S.G. § 3C1.1. … Read more
To our disappointment and surprise, the Circuit today declined to grant en banc rehearing in the two “Candyman” cases. See here and here for our discussions of Martin, and here and here for our discussions of Coreas. Two opinions were filed in connection with the denial of en banc rehearing — one by Judge Wesley … Read more
Our colleagues Tim Hoover and MaryBeth Covert of the Federal Public Defenders Office in the Western District of New York have written an excellent analysis of the Circuit’s decision in United States v. Ramirez, Docket No. 04-3147-cr (2d Cir. Aug. 26, 2005) (Walker, Hall, Gibson (by designation)). And more than that: Tim and MaryBeth also … Read more
Policano v. Herbert, Docket No. 04-5518-pr (2d Cir. Nov. 15, 2005) (Pooler, Sack, Garaufis (by designation)): This one is a rare bird indeed — Mr. Policano literally gets away with murder! In this case, the Circuit affirms Judge Gleeson’s grant of habeas based on the insufficiency of the evidence presented at Policano’s New York state … Read more
United States v. Alfred G. Miller, Docket No. 04-2637-cr (2d Cir. Nov. 16, 2005) (McLaughlin, Cabranes, Mukasey (by designation)): In this unfortunate decision, the Circuit extends the protective sweep exception to the warrant requirement recognized in Maryland v. Buie, 494 U.S. 325 (1990), to situations where no arrest is at issue. In Buie, the Supreme … Read more