Usama Whab v. United States, Docket No. 05-1214 (2d Cir. May 19, 2005) (Walker, Leval, Duplantier) (Op. by Leval): This is a surprisingly good, pro-defendant opinion — in a case litigated by a pro se petitioner, no less. (Two cheers for the Court!) Essentially, the Circuit held that if a defendant files a second 2255 … Read more
United States v. Evelyn Gonzalez, Docket No. 04-1956-cr (2d Cir. May 3, 2005) (Meskill, Calabresi, Wesley) (Op. by Meskill): This odd case has already received a good deal of attention from Professor Berman and others. And rightly so, for it seems to suggest — if only in dicta and only by silence — that a … Read more
Yesterday, April 29th, the Court issued the following blanket order, which applies to all appeals raising a Booker claim in which the error was not preserved (i.e., primarily cases in which the sentencing occurred before Blakely was decided in June 2004). It states, in is cryptic entirety, “John M. Walker, Jr., Chief Judge of the … Read more
United States v. Maloney, Docket No. 03-1753 (2d Cir. April 28, 2005) (Jacobs, Pooler, Sotomayor) (Op. by Sotomayor): Some of us had hoped that Booker, rendering the Guidelines-derived range merely advisory, would put an end to the mind-numbing analyses of poorly drafted Guidelines provisions churned out by the Circuit each week. Such hopes had been … Read more
United States v. Morgan, Docket No. 03-1316 (2d Cir. April 27, 2005) (Straub, Pooler, Parker) (Op. by Parker): You win some, you lose some. A mixed bag for defendants from the Circuit today: a good decision in Fagans, and an awful one in Morgan. In a short opinion — issued “on reconsideration” — that is … Read more
United States v. Fagans, Docket No. 04-4845-cr (2d Cir. April 27, 2005) (Newman, Cabranes, Pooler) (Op. by Newman): This is the most recent of a long line of opinions authored by Judge Newman that discuss the application of Booker to cases pending on review. It answers an open question about whether a Crosby remand (i.e., … Read more
United States v. Vaval, No. 04-121-cr (April 12, 2005)(Winter, Sotomayor, and Parker)(op. by Winter). In this opinion, the Court addressed two important issues regarding guilty plea practice – the sufficiency of the allocution and the government’s obligations under a plea agreement. FactsTroy Vaval and his confederates made arrangements to sell firearms to a confidential informant. … Read more
Oscar Porcelli v. United States, Docket No. 04-2000-pr (2d Cir. April 12, 2005): Those driving automobiles in the New York area in the early 1980’s will remember Oscar Porcelli fondly as the owner of the Gaseteria chain of discount gas stations, an operation that was able to charge prices for gas significantly lower than all … Read more
United States v. Susan Godding, Docket No. 04-3643 (2d Cir. April 19, 2005) (Oakes, Kearse, Sack) (per curiam): Many of us are waiting for a definitive say from the Circuit about the meaning of Booker‘s reasonableness standard of review, beyond the generic statements in Crosby and Fleming that reasonableness is a “flexible” concept and that … Read more
Jackson v. Edwards, Docket No. 03-2805 (2d Cir. April 14, 2005) (Newman, Sack, Parker) (Op. by Parker): In this case, the Circuit affirms a grant of habeas by Judge Weinstein, and in so doing clarifies an issue regarding exhaustion. The substantive issue is fact specific — it concerns whether the defendant was entitled to a … Read more