United States v. DeLaRosa, No. 12-4188-cr (2d Cir. Dec. 20, 2013) (Cabranes, Wesley, and Livingston) (summary order), available here

United States v. Gonzalez, No. 12-5075-cr (2d Cir. Dec. 20, 2013) (Pooler, Parker, and Wesley) (summary order), available here

United States v. Harry, No. 12-3623-cr (2d Cir. Dec. 19, 2013) (Pooler, Parker, and Wesley) (summary order), available here

UNITED STATES V. JOHNSON, NO. 12-5094-cr (2D CIR. DEC. 16, 2013) (KATZMANN, WINTER, AND CALABRESI) (SUMMARY ORDER), AVAILABLE HERE

The defendant in this appeal challenged his sentence as procedurally and substantively unreasonable. He pleaded guilty to being a felon in possession of firearms and received 3 years’ prison. At sentencing, the district court compared him to another defendant with a less serious criminal history and stated that their sentences had to be similar because both were equally involved in the offense. The Court held that no procedural error occurred as a result of the comparison made between what the defendant contended were differently situated defendants. Relying on United States v. Williams, 524 F.3d 209, 216 (2d Cir. 2008), the Court reiterated that a district court can consider “factors beyond the scope of § 3553(a), as long as the outside factors ‘are not inconsistent with those listed in § 3553(a) and are logically applied …

UNITED STATES V. NUNEZ, ET. AL., NO. 11-5019-cv (2D CIR. DEC. 16, 2013) (LIVINGSTON, LYNCH, AND HOHIER) (SUMMARY ORDER), AVAILABLE HERE

The defendant in this appeal challenged his sentence as procedurally unreasonable.  Specifically, he claimed that the district court erroneously denied him safety valve relief, held him responsible for 5 to 15 kilograms of cocaine, and denied a departure for acceptance of responsibility.  The defendant was convicted after trial of participating in a drug conspiracy.  The district court conducted a Fatico hearing prior to imposing sentence and credited another witness’s testimony over the defendant’s.  The Court held that there was no error in this credibility finding much less clear error, which is the standard of review for findings of fact made after a Fatico hearing.  The defendant’s testimony regarding a minimal number of drug transactions was internally inconsistent the amount of money he admitted having in his home.  The reasons for having this money, too, changed during …

UNITED STATES V. AGUIAR, ET. AL., NOS. 11-5262-CR (L), 11-5329-CR (CON), 11-5330-cr (CON) (2D CIR. DEC. 13, 2013) (JACOBS, POOLER, AND HALL), AVAILABLE HERE

The Court in this published opinion denied defendant’s multiple claims of error by the district court arising out of Rule 12 and post-trial motions. The most predominant issue involved the government’s warrantless placement of a GPS device on the defendant’s car from January to July 2009 and whether it violated the Fourth Amendment where officers have reasonable suspicion and probable cause to execute a search.  After a detailed analysis of similar out-of-Circuit cases and identifying relevant Supreme Court precedent in existence at the time of the government’s conduct, the Court ultimately held that the good faith exception to the warrant requirement applied. 

Burlington, Vermont’s Police Department and the DEA investigated a cocaine and heroin distribution conspiracy in mid to late 2008, which included Aguiar (the defendant) as a suspect. …

United States v. Coston, No. 12-4622-cr (2d Cir. Dec. 10, 2013) (Katzmann, Winter, and Calabresi), available here

UNITED STATES V. LAURIA (PAPPAS), NO. 13-269-cr (2D CIR. DEC. 10, 2013) (LIVINGSTON, CARNEY, AND KOELTL) (SUMMARY ORDER), AVAILABLE HERE

The Court in this summary order rejected for lack of jurisdiction a defendant’s appeal from a magistrate judge’s order denying various post-trial motions.  The Court noted that a magistrate judge’s general authority is derived from 18 U.S.C. § 636, which contemplates authority conferred by, among other things, referral from a district judge under certain provisions at subsection (b).  In this case, it was unclear whether referral occurred pursuant to § 636(b)(1)(A), (b)(1)(B), or (b)(3), though it did not matter.  Each provision required the district court to enter a final order, which never occurred.  Absent such a final order, the magistrate judge’s determinations were not reviewable on appeal.…

United States v. Punn, No. 13-2780-cr (2d Cir. Dec. 6, 2013) (Pooler, Lynch, and Droney), available here

United States v. Grimm, et al., Nos. 12-4310-cr; 12-4365-cr; 12-4371-cr (2d Cir. Dec. 9, 2013) (Kearse, Jacobs, and Straub), available here

UNITED STATES V. PINNEY, NO. 12-3954-cr (2D CIR. DEC. 9, 2013) (KEARSE, JACOBS, AND STRAUB) (SUMMARY ORDER), AVAILABLE HERE

The Court in this summary order rejected the defendant’s constitutional challenge to a condition of his supervised release.  The defendant agreed to the condition being added to the terms of his release and waived his rights to a hearing and assistance of counsel prior to imposition.  At a later sentencing hearing for violating that same condition, he never objected to the condition and only asked the district court to be lenient.  The Court characterized the decision not to challenge the condition’s “obvious” constitutional infirmities prior to sentencing as tactical.  As a result, any objections to the condition were waived.…