United States v. William Byrd, Docket No. 04-3607-cr (2d Cir. June 24, 2005) (Walker, Cardamon, Owen, D.J.) (per curiam): The Circuit holds in this very short opinion that the preponderance standard governs the determination of whether a defendant has breached a plea agreement, even after Booker. The entirety of the Court’s reasoning is this: “Booker. … Read more

United States v. David Martinez, Docket No. 04-2075-cr (Sotomayor, Raggi, Hall) (Op. by Sotomayor): In a case of first impression in the Circuit, the Court rules that the Sixth Amendment right of confrontation does not apply to sentencing hearings, even in light of Crawford v. Washington, 541 U.S. 36 (2004), and United States v. Booker, … Read more

Serrano v. Fischer, Docket No. 03-2670 (2d Cir. June 20, 2005) (Winter, Sotomayor, and B.D. Parker) (Op. by Sotomayor): In this dismissal of a habeas petition, the Circuit narrowly held that, under the particular facts of the case, the state court decisions rejecting the petitioner’s deprivation-of-counsel claim were not contrary to or an unreasonable application … Read more

United States v. Weisser, Docket No. 01-1588 (2d Cir. June 20, 2005) (Walker, Cardamone, and Owen, D.J.) (Op. by Walker): In this otherwise ho-hum opinion in which the primary appellate issue concerns the defendant’s claim that he has been deprived of the right to appeal because much of the evidence presented against him at trial … Read more

United States v. Anthony Guidice, Docket No. 04-3729-cr (2d Cir. June 16, 2005) (Feinberg, Sack, Katzmann) (Op. by Feinberg): The Circuit sets a very high hurdle in this case for defendants wishing to withdraw their guilty pleas based on grossly erroneous advice from counsel about their sentencing exposure. Although the Court does not create any … Read more

United States v. Fruchter, Docket No. 02-1422(L) (2d Cir. June 14, 2005) (Walker, Parker, and Wesley) (Op. by Walker): The Circuit concludes in this opinion that in determining the amount subject to forfeiture under the RICO criminal forfeiture statute, 18 U.S.C. § 1963, a judge need only rely upon the preponderance of the evidence standard. … Read more

People v. Rivera (June 9, 2005) (Op. by Rosenblatt): This Blog normally confines itself to Second Circuit decisions, but since we commented yesterday on the Second Circuit’s narrow decision upholding New York’s persistent felony offender statute on AEDPA review, see Brown v. Greiner, below, we thought it appropriate in the interest of completeness to discuss … Read more

Brown v. Greiner, Docket No. 03-2242(L) (2d Cir. June 3, 2005) (Walker, Leval, and Katzmann) (Op. by Leval): Too much has been made of this exceedingly narrow decision in the press (see, e.g., yesterday’s front page article in the New York Law Journal) and in the blogsphere (see, e.g., Professor Berman’s description of it as … Read more

Christie v. Hollins, Docket No. 03-2878 (2d Cir. May 27, 2005) (Newman, Pooler, Katzmann) (Op. by Newman): A fabulous week for habeas petitioners: This is the second time in one week that the Circuit has reversed a district court’s denial of habeas and granted the writ. See Henry v. Poole, below. Here, Judge Newman concludes … Read more

United States v. Selioutsky, Docket No. 04-2740 , (2d Cir. May 27, 2005) (Newman, Wesley, Hall) (Op. by Newman): This is yet another opinion by Judge Newman fleshing out some important details of the post-Booker sentencing (and appellate) world left unresolved by Booker itself. In this case, the Circuit (1) excises Section 3553(b)(2), which required … Read more