There were some interesting summary orders this week.
In United States v. Romero, No. 06-1199-cr (2d Cir. December 18, 2008), the district court imposed a $10,000 fine, observing that the debt would make the defendant eligible for work in prison. That observation was incorrect, since a fine is not a prerequisite for obtaining prison employment. The circuit remanded so that the lower court can reconsider whether to impose a fine.
In United States v. McFadden, No. 07-3614-cr (2d Cir. December 17, 2008), the court did not enforce an appeal waiver in a plea agreement because, during the plea allocution, the court did not specifically flag the waiver, and even implied that McFadden had a limited right to appeal his sentence. As a result, the appellate court ordered a Crosby/Regalado remand.
In United States v. Sykes, No. 07-0505-cr (2d Cir. December 17, 2008), the court strongly suggested that a search of the defendant’s vehicle was outside the scope of a search warrant that authorized a search of his residence “including all storage areas and curtilage,” although it concluded that the admission of evidence recovered from the vehicle was harmless error. The court noted that deeming an area “curtilage” does not by itself authorize the search of a vehicle and would, in this case, have required further fact finding by the district court.
In United States v. Vargas, No. 08-0295-cr (2d Cir. December 17, 2008), the district court erroneously instructed the jury that it could presume an effect on interstate commerce if either illegal drugs or the proceeds of their sale was the object of a robbery, although the error was harmless.