United States v. Green, No. 08-5426-cr (2d Cir. February 17, 2010) (Kearse, Winter, Pooler, CJJ)

In this case, the Court holds that a crack sentence that was the product of an imperfectly amended Rule 11(c)(1)(C) plea agreement could not be reduced under 18 U.S.C. § 3582(c)(2).

Last year, in United States v. Main, 579 F.3d 200, 203 (2d Cir. 2009), the court held that a defendant sentenced under an 11(c)(1)(C) agreement was ineligible for a § 3582(c)(2) sentence reduction. See “Out Of Range,” posted August 30, 2009. Here, the 11(c)(1)(C) agreement specified a 168-month sentence, to run concurrent with Green’s undischarged state sentence. However, by the time Green was to be sentenced, he had completed the other sentence. His attorney wrote to the government and proposed that instead the sentence be 145 months. The government agreed, although not in writing, and at sentencing, the judge agreed as well and imposed …

As noted below, the circuit has been a bit slow this month. But here are three more summary orders of interest.

In United States v. Valentin, No. 07-5278-cr (2d Cir. February 9, 2010), the court ordered a Jacobson remand for the district court to clarify whether it would have imposed a shorter sentence if it understood it was permitted to do so under the Williams/Whitley decisions.

In United States v. Drayer, No. 07-1521-cr (2d Cir. February 9, 2010), the district court at sentencing accepted the government’s representation as to the loss amount, but then at a later restitution hearing came up with a loss figure that was seven million dollars lower, rendering the loss figure used at sentencing clearly erroneous. The circuit also found plain error in the district court’s inclusion of an enhancement for more than fifty victims, since the only victims the district court included in the loss …

The court’s latest Per Curiam opinion, United States v. Rossi, No. 08-6108 (Kearse, Cabranes, Straub, CJJ) (2d Cir. January 28, 2010) (per curiam), holds that the district court had jurisdiction under the pre-1996 restitution statute, 18 U.S.C. § 3663, to amend a restitution order after the defendant had completed her sentence and her term of supervised release. The circuit had previously remanded the case for reconsideration of the restitution order, and this remand restored jurisdiction to the district court, which therefore had the power to impose restitution even though the statute only permits the imposition of restitution “when sentencing a defendant.”…

Here are two recent summary orders of interest:

In United States v. Prescott, No. 08-2886-cr (2d Cir. January 12, 2010), the government waived its objection to the defendant’s untimely notice of appeal, and the court considered the appeal as if the notice were timely.

In United States v. Oliveras, No. 08-4884-cr (2d Cir. January 8, 2010), the court vacated the sentence, finding that the district court made multiple errors in the defendant’s favor. Among other things, the trial court disregarded a mandatory minimum, made clearly erroneous fact findings in determining the guidelines, and might have erred in downwardly departing on criminal history grounds, although the record needed clarifying on this issue.…

We close out 2009 with two interesting per curiam opinions.

In United States v. MacPherson, No. 08-1829-cr (2d Cir. December 30, 2009) (Newman, Calabresi, Katzmann, CJJ) (per curiam), the defendant argued that the government violated a Pimentel-like non-binding plea agreement by advocating for a sentence higher than the estimate contained in the agreement. In the majority opinion, the court simply held that its precedents on this issue are in conflict, and that, given this, MacPherson, who did not argue in the district court that the government breached the plea agreement, could not establish plain error. Judge Newman concurred. In his view, not only was there no plain error, there was no error at all. He then made an inconclusive effort to harmonize the conflicting precedents, in the end noting that he would “uphold all plea agreements with Pimentel estimates, regardless of whether the Government at sentencing advocates a higher Guidelines …

United States v. Doe, No. 08-4064-cr (2d Cir. December 14, 2009), looks the First Amendment implications of a defendant’s request to seal his case. At sentencing, Doe had asked for the total and permanent sealing of his sentencing transcript. The court denied the request, and Doe appealed. After the government agreed that the decision should be reversed, the court appointed amicus counsel to defend the district court’s ruling. The appellate court noted that there were no serious First Amendment concerns, since the order concerned the denial of a sealing request. Moreover, the district court’s analysis of the issue correctly treated the public’s right of access to sentencing proceedings as qualified, and not absolute. The lower court also correctly recognized that the right of public access to criminal proceedings is presumptive, and that the party seeking to overcome the presumption bears a heavy burden, one that increases the more extensive the …