United States v. Vilar, No. 10-521-cr (2d Cir. July 19, 2011) (Jacobs, CJ, Rakoff, DJ)

Defendant Vilar and his co-defendant Tanaka were convicted of fraud-related charges after a jury trial. Both filed timely notices of appeal and the appeals were consolidated. Vilar, represented by new counsel, decided to develop a claim that his trial counsel was ineffective, and make a motion under 18 U.S.C. § 2255. This per curiam resolves his motion to dismiss the appeal without prejudice, with leave to reinstate it after completing the 2255. The circuit denied the motion, but granted Vilar a six-month extension of time to perfect his appeal.

The court noted that Vilar’s request was somewhat unusual. Usually, a defendant first pursues a direct appeal then, if he wishes, a 2255 motion. Vilar’s application would allow a collateral attack first and a direct appeal second, a route that “raises concerns both jurisdictional and practical.”…

At last – more summary orders of interest.

In United States v. White, No. 10-2631-cr (2d Cir. July 18, 2011) (summary order), the circuit vacated the district court’s decision denying resentencing under 18 U.S.C. § 3582(c)(2).

The case has a long procedural history. White originally rejected a plea offer that included one § 924(c) count while dropping another, but his attorney never told him that the second one carried a mandatory twenty-five year consecutive sentence. White ended up convicted after trial and facing a 570 to 622 month guideline range. On his habeas corpus petition, the district court concluded that his attorney had been ineffective, and fashioned an equitable remedy under which the court sentenced him under the final offer White had rejected – one count of crack trafficking and one § 924(c) count. This produced a 168-month sentence: 108 (a guideline sentence) on the crack count, plus 60 on …

It has been a while, but here are three more summary orders of interest.

In United States v. Mancuso, No. 10-2420-cr (2d Cir. June 30, 2011), the court identified several sentencing errors in connection with a prosecution for environmental crimes. First, the district court erred in applying the multi-object conspiracy guideline, U.S.S.G. § 1B1.2(d). When a defendant is convicted of multi-object conspiracy, this section requires the court to sentence as if the defendant had been convicted on a “separate count of conspiracy for each offense that the defendant conspired to commit.” The sentencing court is to sit as the trier of fact and determine, using the reasonable doubt standard, whether it “would convict the defendant of conspiring to commit the particular objects” Here, the district court did not make any specific findings under this section, so the circuit remanded the case for further findings. Second, the district court committed plain …

United Sates v. Gravel, No. 10-1045-cr (2d Cir. June 20, 2011) (Pooler, Wesley, Chin, CJJ) (per curiam)

The court’s latest per curiam looks at the firearm guideline’s six-level enhancement for “machineguns.” See U.S.S.G. § 2K2.1(a)(5).

The defendant’s gun was a Colt machinegun, initially designed to fire automatically, but had been retrofitted to fire only semi-automatically. Defendant argued that since the definition uses the present tense – a machinegun is “any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot” – his now semi-automatic weapon should not receive the enhancement. Looking to the dictionary definition of “designed,” the court held that, when applied to a “manufactured object such as a firearm,” the word referred to what the gun was “conceived of and designed for and not to any modifications made afterwards.”

Here, since the gun was made for use as an …