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Federal Defenders of New York Second Circuit Blog


Saturday, March 14th, 2009

Coffe, Tea or Jail?

United States v. Delis, No. 08-0641-cr (2d Cir. March 5, 2009) (McLaughlin, Calabresi, Livingston, CJJ)

On a flight from Zurich to JFK, Pierre Delis, upset that the meal service ran out of chicken, got into a scuffle with a flight attendant during which, at a minimum, he pushed her hand away from his face. He was charged with simple assault, in violation of 18 U.S.C. § 113(a)(5), and his defense was a lack of intent to injure. After a bench trial, a Magistrate Judge convicted him, holding that intent to injure was not an element of the offense, and finding that Delis had the intent to “engage in an offensive touching.” He appealed first to the district court, which affirmed, and then to the circuit, which affirmed as well.

Section 113(5) criminalizes “simple assault,” a term with common-law origins. At common law, a battery was the “unlawful application of force …

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Off-Whitley

United States v. Williams, No. 07-2436-cr (2d Cir. March 5, 2009) (Pooler, Hall, CJJ, Trager, DJ)

Title 18 U.S.C. § 924(c) provides for consecutive mandatory minimum sentences for the use or possession of a firearm in connection with a drug offense or crime of violence except “to the extent that a greater minimum sentence is otherwise provided by … any other provision of law.” In United States v. Whitley, 529 F.3d 150 (2d Cir.), reh’g denied, 540 F.3d 87 (2d Cir. 2008), the defendant received a fifteen-year mandatory minimum under the Armed Career Criminal Act, and a five-year consecutive 924(c) sentence. The court held that the “except” clause exempted the defendant from the 924(c) sentence, since he was subject to a greater minimum on the ACCA count. Whitley left open whether the “except” clause applied to non-firearms offenses. Here, a different panel, following Whitley, answered that question with a resounding …

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Trust Fun

United States v. Friedberg, No. 08-3763-cr (2d Cir. March 2, 2009) (Pooler, Katzmann, CJJ, Preska, DJ)

Daniel Friedberg was Grand Secretary of an Odd Fellows lodge for eighteen years. During that time, he embezzled nearly $600,000 of the organization’s funds. He also failed to pay tax on the money, and ultimately pled guilty to tax evasion. At sentencing, over his objection, the court imposed a two-level enhancement for abuse of trust, over his objection.

The circuit affirmed. Friedberg conceded that he abused a position of trust with respect to the Odd Fellows, but argued that he did not occupy a position of trust with respect to the government, which was the primary victim of the tax evasion. But the circuit pointed out that the commentary to the abuse-of-trust guideline requires consideration the relevant conduct, not just the elements and acts cited in the count of conviction.

The embezzlement was clearly …

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Monday, March 2nd, 2009

Summary Summary

February turned out to be an interesting month for summary orders. Here are the final four:

In United States v. Santillo, No. 08-4378-cr (2d Cir. February 26, 2009), the court upheld the imposition of a year-and-a-day prison sentence even though both the defendant and the government had stipulated to a sentence of five years’ probation.

In United States v. Navarro, No. 08-0484-cr (2d Cir. February 26, 2009), the court held that the government did not breach its plea agreement by advocating for a Guideline sentence in response to the defendant’s request for a downward variance. The government had promised not to take a position concerning where within the range the court should impose sentence, and merely asking for a within-Guideline sentence was permissible.

In United States v. Bossinger, No. 07-5718-cr (2d Cir. February 25, 2009), the court found “merit” to the defendant’s claim of prosecutorial misconduct in summation. The prosecutor …

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Wednesday, February 25th, 2009

Let The Burglar Beware

United States v. Johnson, No. 08-2296-cr (2d Cir. February 25, 2009) (Cabranes, Wesley, CJJ, Korman, DJ) (per curiam)

Defendant Johnson stole a firearm during a burglary, and pled guilty to being a felon in possession of that same gun. At sentencing, he received a four-level enhancement for possessing it in connection with “another felony,” the burglary. The district court based the enhancement on a 2006 application note that provides that the “another felony” enhancement applies where a defendant finds and takes a firearm during a burglary. Johnson argued that this violated the Ex Post Facto clause, since his offense occurred before the application note was promulgated.

The circuit affirmed. The application note was added to the guidelines to resolve a circuit split on the applicability of the enhancement, and was intended merely to “clarify” that it applied to burglaries involving the theft of firearms. The note neither “altered the law …

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Tuesday, February 24th, 2009

Re: Possessed

United States v. Ayon-Robles, No. 07-0785-cr (2d Cir. February 24, 2009) (Jacobs, Wesley, CJJ, Arcara, DJ) (per curiam)

Recently, in an immigration case, Alsol v. Mukasey, 548 N.Y.S.2d 207 (2d Cir. 2009), the court held that a second state-court conviction for simple drug possession was not an “aggravated felony” under the relevant immigration statute, 8 U.S.C. § 1101(a)(43), because it did not satisfy the statutory definition of “drug trafficking crime[].” See Simply Possession, posted 11/29/08.

The court’s decisions in this area have been confusing, however. The illegal reentry guideline, U.S.S.G. § 2L1.2, incorporates the same statutory definition, but the court has in some cases suggested that it might interpret that provision differently in the sentencing context. This case appears to have put that confusion to rest. Here, the court held that since the guideline specifies that the term “aggravated felony” has the “meaning given that term in [8 U.S.C. 1101(a)(43)],” …

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Sunday, February 22nd, 2009

Flaw-Of-The-Case

United States v. Carr, No. 06-5490-cr (2d Cir. February 19, 2009) (Kearse, Sack, Kaztmann, CJJ)

Carr was convicted after a jury trial of racketeering, drug and firearms offenses. At his original sentencing, since the racketeering predicate was murder, the then-mandatory guidelines prescribed a life sentence, and that is what he received, plus five years on a § 924(c) count. On Carr’s first appeal, the court affirmed his convictions and the district court’s guidelines calculations, but ordered a Crosby remand.

On remand, the court resentenced him to forty years’ imprisonment: five years on the gun count consecutive to thirty-five on the racketeering counts. On his second appeal, Carr tried to get the circuit to revisit the district court’s guideline calculations, even though they had been affirmed on his first appeal, arguing that the law-of-the-case doctrine should not apply where the district court imposed a different sentence after a Crosby remand.

The …

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Double Trouble

United States v. Reyes, No. 06-3699-cr (2d Cir. February 19, 2009)(Leval, Cabranes, Livingston, CJJ) (per curiam)

Defendant Reyes participated in the beating of a victim with, amongst other things, a baseball bat. The victim was left with severe brain damage – his wife told the court that he would “never wake up again.”

Reyes pled guilty to assault in aid of racketeering. He faced a sentencing range of ninety-two to 115 months’ imprisonment, which included an enhancement for “permanent or life threatening bodily injury” under U.S.S.G. § 2A2.2(b)(3)(C). At sentencing, however, the district court invoked U.S.S.G. § 5K2.2, which authorizes an upward departure for “physical injury,” and sentenced him to 180 months’ imprisonment.

On appeal, Reyes claimed that the sentence was the result of impermissible “double counting.” The circuit affirmed, reminding that impermissible double counting only occurs when a court acts “in contravention of the applicable statute or Sentencing Guideline.” …

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Dont Speak!

United States v. Gutierrez, No. 08-3581-cr (2d Cir. February 11, 2009)(Cabranes, Sotomayor, CJJ, Rakoff, DJ)

Before Gutierrez was sentenced, his counsel filed a lengthy sentencing memorandum outlining five separate grounds for a below-guideline sentence. The government’s written response sought a guideline sentence. At sentencing, the court did not address the attorneys at all. It gave Gutierrez an opportunity to speak, indicated that it had considered the § 3553(a) factors, then imposed a sentence at the bottom of the guideline range.

Defense counsel objected, pointing out that the court had not considered the issues raised in his sentencing memorandum, and that the court had imposed a sentence without giving counsel a chance to speak. At counsel’s request, the court vacated the sentence. Counsel then argued the issues in the sentencing memorandum, and the government briefly responded, again asserting that a guideline sentence would be appropriate. Counsel responded by pointing out that …

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Sorry, Wrong Number

United States v. Poindexter, No. 07-1151-pr (2d Cir. February 10, 2009) (Walker, Calabresi, Katzmann, CJJ) (per curiam)

In 1995, Melvin Poindexter was charged with a cocaine conspiracy, with no drug quantity specified in the indictment. He therefore faced a 20-year maximum, but no mandatory minimum. Before trial, the government filed a prior felony information, which increased his statutory maximum to 30 years. After a jury convicted him, the court concluded that he was responsible for 15 to 50 kilograms of cocaine, and that he was a career offender. The court then used the career offender offense level for offenses with a statutory maximum of life, since that would have been his maximum if he had been indicted for the quantity of cocaine the court found, which of course, he was not. The corresponding guideline range was 360 to life, and the court sentenced him to 360 months. His original appeal …

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Summary Summary

In the past month or so, there have been only two summary orders of interest. Here they are:

Guidelines section 4A1.2(c)(2) lists offenses that are too petty to count in the criminal history score, and instructs that offenses “similar to” those on the list are also excluded. In United States v. Muse, No. 08-0831-cr (2d Cir. February 20, 2009), the court rejected the argument that misdemeanor marijuana possession is similar to other offenses on the list, such as “minor traffic infraction or public intoxication.” This has been an open question in this circuit; since a summary order does not have a precedential effect, it is still open.

In United States v. Valle-Iglesias, No. 09-1968-cr (2d Cir. February 13, 2009), the court agreed that a prior conviction for breaking into a commercial office and stealing computer equipment was not a crime of violence under U.S.S.G. § 2L1.2(b).

…

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