Saturday, June 2nd, 2012

PC World

Here are the court’s three  most recent per curiam opinions:

United States v. David, No. 11-741-cr  (2d Cir. May 17, 2012)  Calabresi, Cabranes, Chin, CJJ) (per curiam)

In this drug case, the circuit remanded for resentencing because the district court acted before two 2011 circuit decisions, Chowdhury and Figueroa, in calculating the marijuana equivalency for the drug BZP.  Defendant David pled guilty to trafficking in large quantities of pills thought to contain the drug Ecstasy.  At sentencing, it emerged that the pills actually contained BZP, a somewhat similar drug often sold as Ecstasy. The district court analogized BZP to Ecstasy for guidelines purposes, and sentenced accordingly.  Strangely, a lab report submitted to the circuit, but not, apparently, the district court, indicated that the pills contained a combination of BZP and two other substances, TFMPP and caffeine.

The circuit noted that Chowdhury held that it was not error for a district court to conclude that a similar combination of drugs was most closely related to Ecstasy for guidelines purposes, while Figuroa held that it was error to treat BZP alone as Ecstasy, at least not without further fact development. Here, the court remanded for resentencing, noting that if the district court had had the benefit of those decisions  – and an accurate lab report – it might have conducted its drug equivalency analysis differently. The court also noted that the Sentencing Commission is considering developing a separate marijuana equivalency for BZP, and that this might also affect the sentence in this case.

United States v. Rood, No. 11-2174-cr (2d Cir. May 15, 2012) (Calabresi, Cabranes, Chin, CJJ) (per curiam)

In this decision, the court vacated a repeat-sex-offender mandatory life sentence imposed pursuant to 18 U.S.C. § 3553(e). At issue was whether the defendant’s 1991 Ohio conviction under a state statute that criminalized sexual contact with individuals under the age of 13 was equivalent to the relevant federal offense, which criminalizes such conduct with individuals under the age of 12. Since the statutes alone did not answer the question of the age of Rood’s Ohio victim, the district court should have conducted a “modified categorical” inquiry to determine that fact.

Here, the Ohio judicial record evidence that the district court considered was insufficient. Without a transcript of the Ohio guilty plea, or some other equivalent judicial record, the circuit was unable to determine whether the available information sufficiently established that the victim was under 12. The court accordingly remanded for a de novo sentencing.

United States v. Ramos, No. 10-3982-cr (2d Cir. April 26, 2012) (McLaughlin, Sack, Livingston, CJJ) (per curiam)

The district court assessed defendant Ramos, convicted of alien smuggling and illegal reentry, two criminal history points for committing those crimes while on supervised release, a “criminal justice sentence” for purposes of U.S.S.G. § 4A1.1(d). The supervised release arose from a 2001 passport fraud conviction in the Southern District of Florida, where the sentence was time served and three years of supervised release. After that sentence was imposed, Ramos was immediately transferred to I.C.E. custody and removed from the United States.

In this case, Ramos did not dispute that he came back to the United States during the term of supervised release and that a violation warrant issued before its expiration. He claimed that he should not have been assessed the points because he did not know that he was on supervision when he came back, and thus did not know that he was supposed to report to Probation – that failure triggered the warrant – when he did.  The circuit held that Ramos’ supposed lack of knowledge was “simply not relevant” to the criminal history calculation. Guideline § 4A1.1(d) “does not require a defendant to have knowledge that he is under a criminal justice sentence at the time he or she commits a new offense in order for its two-level increase to apply.”

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