Here are the court’s three most recent per curiams.
In United States v. Deida, No. 11-2272-cr (2d Cir. June 20, 2012) (Winter, McLaughlin, Chin, CJJ) (per curiam), the court affirmed a life sentence under the federal “three strikes” statute, 18 U.S.C. § 3559(c). The court rejected the defendant’s argument that the statute violates the principle of separation of powers, joining four other circuits. Even though the statute gives the executive branch the authority to determine the defendant’s sentence, the judiciary “does not possess exclusive control over sentencing matters.” Thus, § 3559(c) does not unconstitutionally delegate a judicial power to the executive branch. The court also rejected the argument that the defendant was entitled to a jury trial on the sentencing enhancement, adhering to the holdings of Apprendi and Almendariz-Torres that recidivism-based sentencing enhancements are not elements of the offense that need to be found by a jury.
In United States v. Diamreyan, No. 10-03575 (2d Cir. July 3, 2012) (Pooler, Parker, Lohier, CJJ) (per curiam), the court upheld sentencing findings in a fraud case on the defendant’s role and the number of participants that were based on emails between the defendant and other participants in the scheme. First, as to role, other participants referred to Diamreyan in their emails as the “chairman,” and emails that he sent to them included instructions on how to perpetuate the scheme. Nor was it error to rely on unique email addresses in calculating the number of participants. Participants need not be identified by actual name, “so long as the record allow the district court reasonably to find the existence of other participants in the scheme.”
United States v. Highsmith, No. 11-48-cr (2d Cir. August 8, 2012) (Livingston, Lynch, Droney, CJJ) (per curiam), adopts the Supreme Court’s decision in Dorsey v. United States, 132 S.Ct. 2321 (2012), and holds that the lesser penalties created by the Fair Sentencing Act apply retroactively to those defendants sentenced after the Act went into effect, even if the criminal conduct was completed before that date.
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