Summary Summary

Summary orders of interest have literally been piling up on my desk. Here’s the latest crop:

In United States v. Muse, No. 07-4482-cr (2d Cir. March 11, 2010), the court vacated the sentence where the district court erroneously believed that jury’ finding on a special interrogatory indicated that the defendants had been convicted only of a misdemeanor.

In United States v. Nazario, No. 09-0953-cr (2d Cir. March 11, 2010), the court noted, but did not resolve, the looming tension between Samson v. California, 547 U.S. 24 843, 857 (2006), which held that for a California parolee the Fourth Amendment does not prohibit suspicionless searches, and the court’s own precedents on the reasonableness of parole searches.

In United States v. Gardner, No. 08-4793-cr (2d Cir. March 10, 2010), the court remanded for resentencing where, under Williams, the defendant was not eligible for the mandatory consecutive § 924(c) sentence that he received. However, the court noted that the issue is now before the Supreme Court and thus that it “would likely be an efficient use of judicial resources to await the Supreme Court’s resolution of this issue before resentencing.”

In United States v. Barrios, No. 08-4354-cr (2d Cir. March 9, 2010), the court noted a circuit split on the question whether a vehicle impoundment under the police community caretaking function must be made under standardized procedures, like inventory searches, but did not resolve the issue because the defendant did not raise in the district court. But the court found plain error in the imposition of consecutive terms of supervised release – 18 U.S.C. § 3624(e) requires that they be concurrent.

In United States v. Jones, No. 09-1009-cr (2d Cir. March 9, 2010), the court found no error when, at a supervised release violation, the district court sentenced the defendant in criminal history category VI, even though at his original sentencing the court had departed down to category V. The guidelines for supervised release violations permit, but do not require, a similar departure when calculating the violation sentence.

In United States v. Kelly, No.08-2247-cr, (2d Cir. March 3, 2010), the court found no constructive amendment where the indictment charged that the defendant escaped from a halfway house, but proof at trial showed that he never reported there at all.