Summary Summary

This crop of summary orders of interest closes out May 2008.

In United States v. McCargo, No. 07-0626-cr (2d Cir. May 30, 2008), the defendant escaped from a halfway house, then months later was found to be in possession of a firearm. The court held that the gun possession was properly deemed “in connection with” the escape – triggering a four-level enhancement – because escape is a continuing offense and the defendant admitted that he acquired the gun for “protection.”

In United States v. Rosario, No. 06-5655-cr (2d Cir. May 30, 2008), the court extended the Regalado remand procedure for crack cocaine cases to a case where the offense level was based on a combination of crack and heroin.

In United States v. Konstantin, No. 07-0033-cr (2d Cir. May 29, 2008), the court held that (1) the district court did not violate the defendant’s constitutional right to his choice of counsel by denying a change of counsel one week before trial, and (2) the district court might have misunderstood its authority to correct errors in the Judgment under Fed.R.Cr.P. 36 when it denied the defendant’s Rule 36 motion that pointed out an error in the designation recommendation.

In United States v. Garcia, No. 06-2879-cr (2d Cir. May 29, 2008), the court held that a defendant’s failure to object to the mandatory life sentence triggered by the filing of two prior felony informations under 21 U.S.C. §§ 841(b)(1)(A) and 851 was not plain error — even though there was a “substantial question of whether a defendant’s failure to prove the affirmative defense of withdrawal may satisfy the government’s burden to demonstrate that the defendant engaged in criminal activity subsequent to a prior conviction” — because the defendant received life sentences on other counts. Emphasis in original.