Interesting summary orders have been piling up. Here is the latest crop:
In United States v. Strand, No. 08-3730-cr (2d Cir. July 8, 2009), the court held that the district court lacked the authority to impose a drug sentence lower than the mandatory minimum to “adjust” for time served on state sentences for related conduct, where the state sentences had been fully discharged several years before the federal sentences were imposed. The court also held that a valid claim that the defendants were not subject to consecutive § 924(c) sentences under Whitley and Williams was waived by the appellate waiver in the plea agreement.
In United States v. Brown, No. 08-3364-cr (2d Cir. July 6, 2009), the court held that a commerce clause challenge to one of the failure-to-register statues, 42 U.S.C. § 14072, was “not jurisdictional,” and hence was waived by a guilty plea.
In United States v. Douglas, No. 08-0597-cr (2d Cir. June 29, 2009), although the court affirmed the conviction, it was unusually critical of the government’s performance. First the court gave “special comment” to the government’s discovery violations, including its failure to disclose a recording of the defendant’s telephone conversation with his mother and its failure to provide advance notice of an expert witness’ testimony. The court also noted with displeasure the government’s careless word choice during a critical aspect of its summartion.
In United States v. Hossain, No. 08-3805-cr (2d Cir. June 24, 2009), the court remanded for resentencing because the district court did not adopt the PSR in open court, only in written, post-sentencing writings. This did not satisfy the obligation to calculate and identify the applicable guideline range.
In United States v. Suriel, No. 08-3952-cr (2d Cir. June 4, 2009), the court held that the wording of a Southern District plea agreement’s appellate waiver permitted the defendant to appeal an adverse “safety valve” determination.