Monday May 9, 2016
There are no criminal decisions from the Court of Appeals today. We hope everyone had a happy Mother’s Day!
Summary Order Reaffirms Second Circuit Rule that Youthful Offender Adjudications Can Count as Crimes of Violence under the Guidelines even after Sellars
There is only one summary order today, United States v. Oscar Cardoza, 15-1602-cr. The Second Circuit reaffirmed its rule that a New York youthful offender adjudication counts as a crime of violence under USSG 2L1.2(b)(1)(A)(ii), if the nature of the proceedings, the sentence received, and the actual time served shows that the state treated the … Read more
District Court Plainly Erred by Using a Guideline Unsupported by the Facts, Even Where the Parties Stipulated to that Guideline in a Plea Agreement
In United States v. Rendsland, Docket No. 14-3942-cr, a summary order issued today, the Circuit ruled that the district court committed plain error in relying on U.S.S.G. § 2A2.2 (“Aggravated Assault”) to calculate Mr. Rendsland’s Guideline range, rather than § 2A2.4 (“Obstructing or Impeding Officers”), even though the parties had stipulated that this was the … Read more
Circuit affirms denial of 18 U.S.C. 3582 sentence reduction
In United States v. Jimenez, 15-1624, the Circuit affirmed the District Court’s denial of a reduction in sentence pursuant to 18 U.S.C. 3582. The Circuit held that when the District Court stated that a lower sentence was “foreclose[d]” by the defendant’s participation in four murders, it meant that the original sentence was the minimum sentence … Read more
No need to dismiss juror who learned the defendant had been shackled but did not see him shackled; Circuit declines to decide whether USSG 4B1.3 is susceptible to a vagueness challenge; affirms prosecutor’s comments on summation
In United States v. Nastri, 15-489, the Circuit held that the District Court did not err either by declining to dismiss a juror or by applying USSG 4B1.3’s criminal livelihood enhancement, and that the prosecutor’s remarks in summation were not improper. The juror in question learned from a third party that another juror had been dismissed after … Read more
Second Circuit Affirms District Court’s Determination of Weight of Controlled Substance and Reliance on Acquitted Conduct
In United States v. Guerra, 14-1025, the Second Circuit affirmed by summary order the District Court’s methodology for determining the weight of oxycodone prior to sentencing. The District Court’s finding after relying on “documentary medical and telephone records, recorded conversations, and witness testimony regarding the methodology of the scheme” was a permissible view of the … Read more
Second Circuit: Conviction for Investment Adviser Fraud Requires Only Intent To Deceive, Not Intent To Harm
In United States v. Tagliaferri, No. 15–536, the Second Circuit held that a conviction for investment adviser fraud, under section 206 of the Investment Advisers Act of 1940, 15 U.S.C. § 80b–6 and 80b–17, requires only intent to deceive one’s clients, not intent to harm them as well. Tagliaferri ran a boutique investment advisory firm … Read more
Second Circuit affirms above-guideline sentence; declines to consider one IAC claim on direct review, but rejects another where record below was sufficiently developed on the point
In United States v. Pendergrass, 15-1965, the Second Circuit affirmed the conviction of Terrence Pendergrass, a former captain at Rikers Island, on one count of willfully violating the constitutional rights of an inmate, who died following the ingestion of cleaning supplies, by refusing to get him medical attention and prohibiting other guards from getting him … Read more
Conviction May Be Sustained upon the Uncorroborated Testimony of a Single Accomplice
In United States v. Fernandez et al., Docket No. 14-4158-cr (L), a summary order issued today, the Circuit principally reaffirms the longstanding rule that “a conviction can be sustained on the basis of testimony from a single accomplice, so long as the testimony is not incredible on its face and is capable of establishing guilt … Read more
Second Circuit rejects claims that District Court erred in limiting cross-examination of prosecution witness and committed various procedural errors at sentencing.
United States v. Rodriguez, No. 14-4267 (2d Cir. Apr. 27, 2016) (Leval, Droney, and Engelmayer). Rodriguez was convicted by a jury of charges of racketeering conspiracy and conspiracy to distribute narcotics. He argued on appeal that the district court erred by disallowing certain cross-examination of a key prosecution witness, and that the district court committed … Read more