This week’s per curiam opinions both deal with sentencing matters. First is United States v. Johnson, No. 08-4093-cr (2d Cir. January 28, 2011) (Kearse, Winter, Hall, CJJ) (per curiam). Here, three defendants challenged the district court’s denial of their crack resentencing motions under 18 U.S.C. § 3583(c)(2). After a trial, the district court found that … Read more
United States v. English, No. 10-3258-cr (2d Cir. January 18, 2011) (Kearse, Winter, Hall, CJJ). The defendants in this case, charged with narcotics and firearms offenses, sought bail from a magistrate and two district judges. Each time they were ordered detained. This opinion is the result of their effort to get the circuit to release … Read more
United States v. Weingarten, No. 09-1043-cr (2d Cir. January 18, 2011) (Cabranes, Wesley, Livingston, CJJ) Defendant Weingarten, who sexually abused one of his daughters for years, successfully challenged the applicability of 18 U.S.C. § 2423(b), which makes it a crime to travel in “foreign commerce” with the intent to engage in sexual activity that would … Read more
United States v. Brown, No. 09-4991 (2d Cir. January 5, 2011) (Calabresi, Sack, Katzmann, CJJ) (per curiam) The court’s latest per curiam holds that assaulting a correction officer, in violation of Conn. Gen. Stat. § 53a-167c(a), satisfies the “catch-all” definition of “violent felony” in the Armed Career Criminal Act. Under Circuit law, an offense qualifies … Read more
United States v. Bengis, No. 07-4895-cr (2d Cir. January 4, 2011) (Feinberg, Cabranes, Hall, CJJ) Three defendants pled guilty to various offenses arising from their South African lobster fishing businesses; they illegally harvested large numbers of rock lobsters from South African waters for export to the United States, conduct that violated both South African and … Read more
United States v. Preacely, No. 09-2580-cr (2d Cir. December 21, 2010) (Raggi, Lynch, Wallace, CJJ) In this unusual, three-opinion decision the majority remanded for resentencing, finding that the record was ambiguous as to whether the district judge understood his departure authority. Background Jamar Preacely pled guilty to a five-year-mando crack conspiracy pursuant to a cooperation … Read more
United States v. Arevalo, No. 09-0576-cr (2d Cir. December 21, 2010) (Jacobs, Kearse, Straub, CJJ) Defendant Manuel Vigil pled guilty to conspiracy to commit murder in aid of racketeering and using a firearm in connection with a crime of violence. He did so pursuant to a plea agreement that contained an appeal waiver – he … Read more
United States v. Abu-Jihaad, No. 09-1375-cr (2d Cir. December 20, 2010) (Raggi, Hall, Chin, CJJ) Defendant Hassan Abu-Jihaad, whose birth name was Paul R. Hall, was convicted of communicating national defense information about the movement of a Navy battlegroup to unauthorized persons. On appeal, his primary challenge was to the use of evidence that the … Read more
United States v. Thomas, No. 09-4335-cr (2d Cir. December 16, 2010) (Jacobs, Kearse, Straub, CJJ) The circuit has twice upheld strict liability nature of the “stolen gun” enhancement, currently codified as U.S.S.G. § 2K2.1(b)(4)(A). Here, the defendant raised the issue again, arguing that Apprendi and its progeny have undermined the circuit precedent on this point, … Read more
United States v. Diaz, No. 10-317 (2d Cir. December 15, 2010) (Cabranes, Pooler, Wesley, CJJ) (per curiam) In October, the court issued a non-precedential summary order holding that the Fair Sentencing Act (the “FSA”) is not retroactive. See “Summary Summary” posted October 27, 2010. This per curiam is a published opinion to the same effect, … Read more