Friday, April 15th, 2011

Summary Summary

Here are four recent summary orders of interest.

In United States v. Durham, No. 10-1046-cr (2d Cir. April 12, 2011), a supervised release violation case, the defendant claimed that his CJA lawyer was ineffective due to a conflict of interest. The circuit observed that in a VOSR the right to counsel is “statutory, not constitutional,” and thus that “the scope of [the] right to effective assistance of counsel is arguably an open question in our Circuit.” In the end, however, the court did not resolve the question because the factual basis for the conflict of interest claim was not sufficiently developed.

In United States v. Monk, No. 09-3618-cr (2d Cir. April 11, 2011), the court vacated a drug sentence because the district court’s findings of fact were insufficient to support the imposition of the two-level gun enhancement. The court relied on evidence that the defendant had possessed guns in the past, and that ammunition was seized at the time of his arrest. The circuit agreed that this evidence, although it proved that “Monk at some point possessed a gun,” failed to “establish the necessary connection between the gun and the offense conduct” and that to affirm the enhancement on these facts would “be expanding [its] scope … in an unprecedented manner.”

In United States v. Shay, No. 10-1543-cr (2d Cir. April 6, 2011), the court vacated a long, but within-Guideline, child pornography sentence because the district court “did not have the benefit of” Dorvee when the sentence was imposed, and the “Guidelines calculation and offense conduct in Dorvee’s case were strikingly similar to those” here. This similarity made it “appropriate, at a minimum, to vacate the judgment and remand” so that the “district court can consider the potential effect or Dorvee on this case in the first instance,” and decide whether the sentence it originally imposed remains appropriate.

Finally, in United States v. Windle, No. 10-620-cr (2d Cir. April 5, 2011), the court found plain error in an illegal restitution order. The district court improperly imposed a “lump sum” restitution order without identifying the victims or their actual losses.

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