Here’s a quick summary of noteworthy summary orders recently issued by the Circuit:
United States v. Davis, No. 12-4836-cr (2d Cir. Apr. 2, 2014) (Katzmann, Livingston, and Carter) (summary order), available here
The Circuit rejected Davis’s argument that the district court improperly sentenced him as a “career offender.” The district court, using the “modified categorical approach” to prior convictions, correctly found that Davis’s prior conviction for assault in the second degree under Connecticut law constituted a “crime of violence.” Accordingly, that conviction was properly used as a qualifying conviction for career offender purposes.
The Court also held that Davis’s 112-month prison sentence — less than half of the 262-month minimum term recommended by the Guideline — was not substantively unreasonable.
United States v. Marks, No. 12-3788-cr (2d Cir. Mar. 31, 2014) (Parker, Hall, and Livingston) (summary order), available here
This summary order upholds the district court’s decision to deny Marks a new trial based on alleged ineffective assistance of counsel. Though counsel failed to communicate a plea offer (of 20 years in prison) to the defendant, Marks failed to show a “reasonable probability” that he would have accepted the plea offer if it had been relayed.
United States v. Green, No. 11-2958-cr (2d Cir. Mar. 31, 2014) (Parker, Livingston, and Carney) (summary order), available here
The Circuit held that the district court’s erroneous failure to apply the Fair Sentencing Act of 2010 (FSA) at the defendant’s sentencing (in May 2011) was not harmless. The court sentenced the defendant to ten years in prison, the minimum sentence under pre-FSA law. At sentencing, the Probation Department, the government, and defense counsel all referred — incorrectly– to a mandatory minimum prison term of ten years. Under these circumstances, the Circuit concluded, it could not be confident that the district court would have imposed the same ten-year sentence if it had recognized that the FSA governed and that the ten-year minimum did not apply.
United States v. Hamdan, No. 11-4959-cr (2d Cir. Mar. 31, 2014) (Raggi, Chin, and Carney) (summary order), available here
Convicted of trafficking in counterfeit goods, defendant was ordered to pay $36,138 in restitution under the Mandatory Victim Restitution Act. He argued on appeal, inter alia, that the record evidence was insufficient to require him to reimburse certain expenses for which he claimed he was not responsible.
The Circuit, applying plain error review, affirmed. The Court held that the evidence was sufficient to support the restitution order, that the defendant was properly ordered to pay restitution for a victim’s travel and its destruction of counterfeit goods, and that the district court adequately considered defendant’s economic circumstances in apportioning liability.
United States v. Barner, No. 13-0379-cr (2d Cir. Mar. 31, 2014) (Sack, Livingston, and Lohier) (summary order), available here
Affirming defendant’s conviction for illegally possessing a firearm as a convicted felon, the Circuit held that: 1) the district court did not err by failing to instruct the jury specifically that neither the defendant’s presence nor his association with persons who owned or controlled the weapons was enough to convict the defendant; 2) the Allen charge given by the district court was not coercive; and 3) the evidence was sufficient to support the defendant’s conviction; and 4) the defendant failed to demonstrate any improper courtroom closure that implicated his Sixth Amendment right to a public trial.
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