United States v. Fleischer, No. 04-3911 (2d Cir. Feb. 3, 2005) (UNPUBLISHED SUMMARY ORDER): In a little noticed unpublished summary order, a panel of the Circuit upheld an appeal waiver, contained in a plea agreement entered before the Supreme Court’s Blakely decision, and dismissed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 … Read more
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 … Read more
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, … Read more
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 … Read more
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 … Read more
United States v. Schneider, No. 03-1764 (January 14, 2005) Background Jeffrey Schneider was an accountant at a company that funded residential loans, and was implicated in a fraudulent scheme on the part of some of the company’s principals to skim funds from escrow accounts. There were several years of contententious pretrial proceedings, some of the … Read more
In United States v. Scott, No. 04-937-cr (January 11, 2005), the Court considered several important questions relating to collateral challenges to the deportation underlying an illegal reentry prosecution. Background Kevin Eric Scott had previously appealed the district court’s denial of his motion to dismiss the indictment, and the Court had remanded the case to the … Read more
Frank Locascio v. United States of America, Docket No. 03-2485 (2d Cir. Jan. 12, 2005) (Walker, Winter, and Jacobs) (Op. by Winter) Facts: In October 2000, Frank Locacio filed a Section 2255 petition, alleging that he was not afforded the effective assistance of counsel at his 1992 trial with co-defendant John Gotti. The petition was … Read more
Jose Rosa v. Frank McCray, Docket No. 04-2188 (2d Cir. Jan. 27, 2005) (Miner, Cabranes, and Straub) (Op. by Miner) (Dissent Op. by Straub) Facts: On September 5, 1997, the victim (“V”) was robbed at gunpoint by two men. V subsequently went to the police and described one of the robbers — the one carrying … Read more
United States v. Peterson, No. 03-1454 (2d Cir. Jan. 10, 2005): Summary: Government bloodsuckers may not force a probationary defendant to submit a DNA sample under the old DNA Act where his original conviction was for bank larceny. At the time Peterson was sentenced, the DNA Act required that all persons convicted of a “qualifying … Read more