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 calculation were the four financial institutions affected by the scheme. Finally, the court remanded for reconsideration of the restitution order since it was unclear whether the district court took into consideration funds that some of the victims received from a civil settlement.
In United States v. Shuster, No. 08-1182-cr (2d Cir. January 19, 2010), the government conceded that it had mistakenly persuaded the district judge to consider a separate fraud case as both relevant conduct and as a “prior sentence” in the defendant’s criminal history score. The circuit vacated the sentence.