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. 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

United States v. Capanelli, Docket Nos. 03-1376 & 03-1439 (2d Cir. April 14, 2005) (Oakes, Jacobs & Cabranes) (Op. by Jacobs): In this opinion, the Circuit — as it did recently in United States v. Rubenstein, No. 03-1721 (see Blog, below) — vacates an erroneously imposed 5-level Guidelines enhancement; exercises its discretion to correct the … Read more

Guzman v. United States, Docket No. 03-2446-pr (2d Cir. April 8, 2005) (Jacobs, Sotomayor, Hall) (Op. by Jacobs): Disappointing though hardly surprising, the Circuit ruled today that Booker does not apply to any cases that became final before January 12, 2005, the day Booker was decided. For those who prefer the jargon, the Court concluded … Read more

United States v. Doe, Docket No. 04-1973 (2d Cir. April 5, 2005) (Wesley, Hall, and Mukasey, D.J.): In this unpublished summary order, the Circuit vacates a sentence as unreasonable under Booker. This is, to my knowledge, the first instance of a post-Booker reversal under the reasonableness standard in the Second Circuit. Because it is merely … Read more

Abdul-Malik v. Hawk-Sawyer, Docket No. 04-3877-pr (2d Cir. April 5, 2005) (Jacobs, Calabresi, Rakoff, D.J.) (Op. by Jacobs): As anyone who has ever had a client serving both a federal and a state term of imprisonment knows, federal law concerning how to account for concurrency between (or, god forbid, among …) these sentences is a … Read more

DeBerry v. Portuondo, Docket No. 03-2418 (2d Cir. April 4, 2005) (Walker, Oakes, and Pooler) (Opinion by Pooler) (Concurrence by Walker): In this case, the Second Circuit affirms the district court’s denial of a § 2254 petition filed by a state prisoner claiming that the prosecutor violated the rule of Batson v. Kentucky, 476 U.S. … Read more