United States v. Rowley, No. 12-3975 (2d Cir. Nov. 26, 2013) (Kearse, Jacobs, Parker) (summary order), available here

This summary order reaffirms that the Fair Sentencing Act does not apply to defendants who were convicted and sentenced before August 3, 2010. See United States v. Diaz, 627 F.3d 930, 931 (2d Cir. 2010).

The one noteworthy aspect of the summary order is that the Court, apparently for the first time, explicitly rejected the Sixth Circuit’s contrary decision in United States v. Blewett, 719 F.3d 482 (6th Cir. 2013). The panel noted that Blewett “arguably contradicted” binding Sixth Circuit precedent and has since been vacated pending rehearing en banc. The panel further stated that Blewett appeared to be “wrongly decided” and that every circuit to consider Blewett “has declined to follow its lead.” …

United States v. Doyle, No. 11-5265-cr (2d Cir. Nov. 26, 2013) (Kearse, Jacobs, and Straub) (summary order), available here

Doyle pled guilty to wire fraud and was sentenced to 72 months of imprisonment and $880,000 in restitution. On appeal, he argued that the district judge violated Fed. R. Crim. P. 11(c)(1) by participating in plea discussions. He noted that the court warned him that there would be a deadline for “acceptance of responsibility points” and that, if he intended to plead guilty, he should do so “before June 21” so that the could receive the extra third point for acceptance of responsibility.

The panel found no reversible plain error because the defendant could not show that, but for the alleged remarks, he would not have pled guilty. The Court noted that the defendant pled guilty nearly three weeks after the announced June 21 “deadline” and had not shown a reasonable probability that he …

United States v. Howe, No. 12-4394-cr (2d Cir. Nov. 25, 2013) (Pooler, Raggi, and Wesley) (summary order), available here

Convicted of receiving and possessing child pornography, Howe was sentenced to 180 months of imprisonment. On appeal, he argued that the district court should have suppressed the evidence against him because (1) the police lacked probable cause to seize his laptop computer without a warrant; (2) the delay between seizure of his laptop and the issuance of a federal warrant to search the computer was  unreasonable; and (3) no probable cause existed to support issuance of the federal warrant to search the laptop.

The panel rejected all three arguments. First, probable cause existed to seize the laptop because a police officer had “viewed the Sample Pictures folder” on the computer, which contained a “lascivious” image.

Second, though the government’s delay in seeking the federal search warrant was “quite lengthy,” it was not constitutionally unreasonable …

United States v. King, No. 12-2262-cr (2d Cir. Nov. 25, 2013) (Pooler, Raggi, and Wesley) (summary order), available here

This summary order affirms the district court’s ruling that the defendant was not eligible for a reduced sentence under 18 U.S.C. 3582(c) and U.S.S.G. 1B1.10.

The defendant pled guilty in 1999, pursuant to a Rule 11(c)(1)(C) plea agreement, to two racketeering offenses: conspiracy to shoot a rival gang member and conspiracy to distribute cocaine and cocaine base. He was sentenced to 20 years of imprisonment, below the life term called for by the applicable Guidelines.

The panel held that the defendant was not eligible for a reduced sentence because his sentence was not “based on” a range that has subsequently been lowered by the Sentencing Commission. 18 U.S.C. 3582(c)(2). Rather, the sentence was based on the plea agreement, which did not expressly use a Guidelines sentencing range to establish the term of imprisonment, …

UNITED STATES V. TOMICIC, NO. 12-2653-cr (2D CIR. NOV. 22, 2013) (CALABRESE, POOLER, AND KORMAN) (SUMMARY ORDER), AVAILABLE HERE

The Court affirmed the defendant’s conviction for wire fraud and denied his claim that the government presented insufficient evidence at trial.  That evidence demonstrated that the defendant submitted what he knew to be falsified, backdated competing bids to a developer.  The defendant also knew that a dispute between the developer and insurance carrier existed.  As a result, the jury could find that the defendant knew his falsified bids would be given to the insurer.  The Court also affirmed a $90,000 restitution order and denied the defendant’s claim that an insufficient basis existed to justify the loss calculation.  Based upon the evidence, the Court could determine the loss by taking the difference between the actual cost of the work done and the amount claimed in the falsified bid.…

UNITED STATES V. BUTLER, NO. 12-5120-cr (2D CIR. NOV. 22, 2013) (POOLER, RAGGI, AND WESLEY) (SUMMARY ORDER), AVAILABLE HERE

The Court held that assets in the defendant’s name could be used to satisfy a $5 million fine and $250,000 forfeiture ordered in a securities and wire fraud conviction case and denied claims by the defendant’s wife that she had a legal right to the assets under several theories she presented as a Third-Party Appellant.  First, New York state’s “economic partnership” law did not apply to the assets because no dissolution of the marriage was pending. New York law does not require equitable distribution of assets pursuant to an “economic partnership” theory prior to a judgment dissolving the marriage. Second, the wife failed to demonstrate that the funds were held for her in a constructive trust because the evidence and her “economic partnership” claim contradicted any expectation that the funds would be returned to her.  Finally, the source …

UNITED STATES V. HIGHSMITH, NO. 13-201-cr (2D CIR. NOV. 22, 2013) (SACK, HALL, AND LIVINGSTON) (SUMMARY ORDER), AVAILABLE HERE

The Court denied this defendant’s appeal of his 15-year
sentence for distribution of 50 grams or more of cocaine and a 924(c).  The defendant argued that the district
court did not adequately consider certain 3553(a) factors and that it wrongly
doubled his sentence on the drug count from a 5-year mandatory minimum to
10-years.  On plain error review,
the Court disagreed with both claims and found the sentence procedurally and
substantively reasonable.  First,
the district court explained at the sentencing hearing that it considered the
PSR, the parties’ sentencing letters and identified various characteristics of the
defendant.  The district court also
expressly stated that it was imposing a sentence sufficient, but not greater
than necessary to comply with 3553(a). 
The 15-year sentence was substantively reasonable because it fell within the…

United States v. Escobar-Gonzalez, No. 12-4657-cr (2d Cir. Nov. 21, 2013) (Pooler, Raggi, and Wesley) (summary order), available here

This summary order holds that the evidence was sufficient to support the defendant’s conviction of  transporting a minor interstate to engage in illegal sexual activity. The panel also held that the district court did not improperly rely at sentencing on a prior, uncharged rape allegation. [Disclosure: the Federal Defenders of New York represents Mr. Escobar-Gonalez.]

The facts were these: The defendant drove a group of illegal aliens from Dallas to the New York tri-state area. Toward the end of the trip, he allegedly sexually assaulted one of the aliens at a rest stop in New Jersey. 

The defendant argued on appeal that the evidence was insufficient to establish that he formed the intent to commit the sexual assault before he crossed state lines, as the charged sexual crimes …

United States v. Cartagena, No. 12-4910-cr (2d Cir. Nov. 21, 2013) (Newman, Hall, and Lynch) (summary order), available here

Cartagena was convicted by a jury of attempting and of conspiring to distribute at least five kilograms of cocaine. At trial, the court admitted testimony that Cartagena had been involved earlier an an uncharged 2009 drug conspiracy.

The panel held that this evidence was properly admitted to provide “relevant background information” that explained the defendant’s relationship to Seyfried, a co-conspirator, and the defendant’s knowledge of Seyfried’s role in a national drug conspiracy. The evidence was also properly admitted under Fed. R. Evid. 404(b) because it provided relevant proof of the defendant’s specific knowledge of Seyfried’s drug activities and proof of the relationship between the two men. The evidence was not unduly prejudicial because it did not involve conduct more serious than the charged crime.

The panel also held that the …

United States v. Schwamborn, No. 12-5125-cr (2d Cir. Nov. 21, 2013) (Pooler, Raggi, and Wesley) (summary order), available here

Convicted of securities fraud, the defendant was sentenced principally to 121 months of imprisonment and about $182,000 in restitution. On appeal, he challenged the restitution order on three grounds: (1) one of the victim’s affidavits was unreliable and overstated the loss amount; (2) the defendant had not caused the victims’ losses; and (3) the need to provide restitution was outweighed by the burden placed on the sentencing process.

The court of appeals, applying plain error analysis, rejected all three arguments. First, the victim’s affidavit was sworn, notarized, and sufficiently reliable to support its probable accuracy. Second, the evidence supported the district court’s conclusion that the defendant was the proximate cause of the victims’ losses. Third, the factual circumstances of the case were not so complex as to unduly prolong the …

United States v. Beckett, No. 12-4233-cr (2d Cir. Nov. 20, 2013) (Pooler, Raggi, and Wesley) (summary order), available here

After the defendant violated his supervised release, the district court imposed a sentence of 10 months of imprisonment, to be followed by a new, 19-month term of supervised release. On appeal, the defendant argued that the new term of supervised release was unreasonable because it contradicted the Probation Office’s recommendation against any further supervised release.

The Circuit held that the new term of supervised release was reasonable. The panel noted that the Probation Office’s recommendation against supervised release was not binding on the district court, and that the court gave valid reasons for rejecting the recommendation. The court cited the defendant’s need for drug and alcohol treatment and the need to protect the public from any further crimes, valid statutory factors. Accordingly, the Circuit affirmed.   …