United States v. Bussey, No. 13-1180-cr (2d Cir. Mar. 20, 2014) (Raggi, Lynch, and McMahon), available here

This summary was prepared by noted criminal defense attorney Francisco Celedonio, who is also a member of the Board of Directors of Federal Defenders of New York, Inc.:

Bussey appealed his conviction for violating the terms of his supervised release. He argued that the district court lacked jurisdiction because his term of supervision expired before judgment was imposed. The Circuit affirmed.

The facts: Bussey began serving a three-year term of federal supervision on February 9, 2010, upon his release from federal custody for a felon-in-possession conviction. On April 1, 2011, and April 7, 2011, arrests warrants were issued, respectively, by New York State and the United States, for Bussey’s failure to report for state or federal supervision. Bussey was taken into state custody first and remained there until March 8, 2013. He …

PIERRE V. ERCOLE, NO. 12-3506-PR (2D CIR. MAR. 27, 2014) (SACK, LIVINGSTON, AND LOHIER) (SUMMARY ORDER), AVAILABLE HERE

This case involved an ineffective assistance of counsel claim following defendant’s murder conviction.  The defendant argued that his defense lawyer was ineffective for not calling a particular witness at trial and for failing to investigate a possible witness.  The Court disagreed with both arguments. 

The decision whether to call a specific witness, even one that might offer exculpatory evidence, is a question of trial strategy and is not viewed as a lapse in professional representation.  The defendant claimed that the uncalled expert witness could have cast doubt on the state’s pathologist, who opined as to the victim’s date of death.  That date, however, did not coincide with the defendant’s claimed alibi that existed two days later.  According to the Court, the decision to not call the witness was strategic.  It avoided potential cross-examination of the uncalled defense witness by the …

UNITED STATES V. PALMA, NO. 13-2230-CR (2D CIR. MAR. 27, 2014) (SACK, LIVINGSTON, AND LOHIER) (SUMMARY ORDER), AVAILABLE HERE

This defendant claimed that the sentencing court committed procedural error by failing to articulate the reasons for the sentence imposed and not addressing the 3553(a) factors.  On plain error review, the first challenge failed.  The Court explained that even if a sentencing court fails to state in open court the reasons for its sentencing decision, that is not tantamount to establishing plain error.  Moreover, the sentencing court in this case expressly adopted the presentence report, which was detailed.  The report discussed the amount of drugs and money involved in the offense.  The district court even noted the former at the sentencing hearing.  Based upon the totality of circumstances, no plain error existed. 

The Court also disagreed with the 3553(a) claim, noting there is no requirement that the sentencing court mention the factors or explain how each …

UNITED STATES V. DELGIORNO, NO. 13-625-CR (2D CIR. MAR. 27, 2014) (STRAUB, SACK, AND LOHIER) (SUMMARY ORDER), AVAILABLE HERE

This defendant appealed his sentence and claimed that the sentencing court committed procedural error by failing to calculate the guidelines, properly consider the 3553(a) factors, and adequately explain the sentence imposed.  All challenges failed.  The district court calculated the guidelines given its review and “explicitl[] adopt[ion]” of the presentence report’s accurate guideline calculations.  At the hearing, it also noted the low end of the range when explaining that it would not impose a guidelines sentence.  The district court also provided an adequate explanation for the below guideline sentence imposed, including aggravating and mitigating factors.

As to the defendant’s 3553(a) argument, the Court affirmed, but voiced concern about whether the sentence “had an air of inevitability” based upon comments by the district court at the defendant’s plea hearing.  At that hearing, the district court noted an …

United States v. Glenn, No. 13-0231-cr (2d Cir. Mar. 12, 2014) (Jacobs, Livingston, and Lynch), available here

Glenn appealed from an order of the District of Connecticut revoking his supervised release. The district court concluded that Glenn committed “another federal, state or local offense” in violation of the conditions of his supervised release, based solely on his pleas of guilty to state drug offenses entered under the Alford doctrine, see North Carolina v. Alford, 400 U.S. 25 (1970).

Defendant argued on appeal that his Alford pleas were insufficient to prove by a preponderance of the evidence that he had violated the conditions of his supervision. But the Circuit affirmed. It held that an Alford plea, under Connecticut law, constitutes an acknowledgement of the strength of the state’s evidence. Accordingly, the district court did not abuse its discretion in concluding, by a preponderance of the evidence, that Glenn committed …

United States v. Lucas, Nos. 12-4840-cr(L), 13-0743(Con), 13-1075(Con) (2d Cir. Mar. 17, 2014) (Parker, Lynch, and Droney) (per curiam), available here

This published (and, therefore, precedential) decision reiterates what the Circuit had previously held only in non-precedential summary orders: that USSG 5G1.3(b) and 18 U.S.C. 3584 empower district courts to run sentences concurrently only to “undischarged” terms of imprisonment.

Defendants pled guilty to conspiracy to distribute drugs and to using and carrying a firearm during and in relation to that conspiracy, in violation of 18 U.S.C. 924(c). The district court sentenced all three defendants to the mandatory minimum term of imprisonment on both counts: ten years for the drug charge and a consecutive five-year term for the gun charge.

On appeal, defendants argued that the district court mistakenly believed that it had no authority to impose less than the mandatory minimum sentences by running those sentences concurrently to completed prison terms that defendants had previously served on …

Tellado v. United States, No. 11-3227-pr (2d Cir. Mar. 12, 2014) (Hall, Livingston, and Berman), available here

United States v. Chibuko, No. 12-0039-cr (2d Cir. Mar. 7, 2014) (Katzmann, Kearse, and Wesley) (per curiam), available here

United States v. Anderson (Hakimi), No. 11-5364-cr (2d Cir. Mar. 4, 2014) (Hall, Carney, and Scheindlin), available here

United States v. Taylor, Nos. 11-2201(L), 11-2426(CON), 11-2639(CON) (2d Cir. Mar. 4, 2014) (Kearse, Jacobs, and Carney), available here

In this published decision, the Circuit granted the government’s petition for panel rehearing and withdrew its original opinion vacating the convictions of all three defendants. Unfortunately for the government, the Court, on rehearing, not only again vacated the defendants’ convictions, but expanded its rationale for doing so. [Disclosure: the Federal Defenders of New York, Inc., represents one of the defendants in this case.]

All three defendants were convicted of charges related to the robbery of a Manhattan pharmacy. The Court’s original opinion (issued on December 4, 2013) vacated the convictions, holding that the admission of the main defendant’s involuntary confession was prejudicial to all three defendants. The Court found the confession so critical to the government’s case, and so essential to buttressing the credibility of the cooperating accomplice, that it prejudiced the co-defendants as well. Thus, the Court found it unnecessary …

United States v. Lee, No. 13-1432-cr (2d Cir. Feb. 27, 2014) (Wesley, Droney, and Abrams) (summary order), available here

This summary was provided by noted criminal defense lawyer Francisco Celedonio, who is also a member of the Board of Directors of Federal Defenders of New York, Inc.:

In this summary order, the Circuit upheld a decision of the district court (Judge Scullin) denying a motion to suppress. The district court found a confidential informant sufficiently reliable (based on detailed information that was corroborated)  to provide officers with reasonable suspicion to stop a vehicle. Given the reliability of the CI’s tip (which suggested the defendant was armed), the officers also had a basis to search the defendant upon stopping the vehicle.…