United States v. Ali Hamdi, Docket No. 03-1307-cr (2d Cir. Dec. 12, 2005) (Feinberg, Winter, Sotomayor): This decision — yet another in the criminal realm by Judge Sotomayor — has two principal holdings. First, the fact the defendant has completed his sentence and been deported does not moot the instant challenge to the length of … Read more

United States v. Phillips, Docket No. 04-2166-cr (2d Cir. Dec. 7, 2005) (Walker, Hall, Gibson (by desig’n)): Many had hoped that Booker‘s demotion of the Guidelines to mere advisory status would, at the very least, put an end to the endless stream of mind-numbing opinions analyzing Guidelines minutia churned out by the Circuit week after … Read more

Zapata v. United States, Docket No. 01-2575 (2d Cir. Dec. 6, 2005) (Sotomayor, Parker, Wesley): The Circuit vacates the district court’s denial of a § 2255 petition, based on Zapata’s IAC claim that trial counsel failed to consult with him about the possibility of an appeal following his 1999 sentencing, for lack of fact-finding on … Read more

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