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Public Defense

Second Circuit Blog

Case Summaries and Commentary by Attorneys from the Federal Defenders Office in New York City

Post Frequency: 2.4/day

Last Entry: March 25, 2016 at 12:33:00

Impact Victim

Posted on May 05, 2008
United States v. Eberhard, No. 05-3431-cr (2d Cir. May 5, 2008) (Jacobs, Calabresi, Sack, CJJ)Todd Eberhard, a former stock broker, pled guilty to various fraud charges. Under his plea agreement, the stipulated guideline range was 97 to 121 months? imprisonment...

Summary Summary

Posted on May 03, 2008
This batch of summary orders of interest wraps up April. Here we go:In United States v. Moya, No. 05-2432-cr (2d Cir. April 30, 2008), the district court erred in imposing a 2-level aggravating role enhancement. Where the defendant is not a manager or supervisor, but there are five or more participants, the district court?s choice is between a 3-level enhancement or no enhancement at all...

State of Disagreement

Posted on May 02, 2008
United States v. Williams, No. 05-4416-cr (2d Cir. April 25, 2008) (Calabresi, Cabranes, CJJ, Korman, DJ)Here, the court vacated two below-guideline sentences that seemed to have been imposed largely in order to minimize a perceived disparity between the sentence recommended by the guidelines and the sentence that would have been meted out in state court...

Rejection Letter

Posted on May 02, 2008
United States v. Negron, 06-3614-cr (2d Cir. April 24, 2008) (Jacobs, Kearse, Pooler, CJJ) (per curiam)Defendant Silverio, who was sentenced to 272 months (22 years, 8 months) in prison, had been offered, and rejected, a plea agreement with a binding sentencing recommendation of 17 years...

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Youthful Indiscretion

Posted on May 02, 2008
United States v. Parnell, No. 06-4551-cr (2d Cir. April 23, 2008) (Winter, Straub, Sack, CJJ) (per curiam)In this case, the court again holds that a New York youthful offender adjudication (a ?y.o.?) - here, it was for attempted burglary in the second degree - must be included in the defendant?s criminal history score under the sentencing guidelines and, where applicable, can trigger the ?career offender? enhancement...

Government?s ?Question[able],? ?Troub[ling]? and ?Disingenous? Conduct Results in an Affirmance. Huh?

Posted on May 01, 2008
United States v. Blech, No 05-3600-cr (2d Cir. April 23, 2008) (Sotomayor, Parker, Hall, CJJ).Two defendants who were convicted of securities and related frauds appealed on the ground that their cases were misjoined, and one advanced a Brady claim. The court affirmed, but only out of apparent deference to the district court?s findings under the ?abuse of discretion? standard...

Unconditioned

Posted on April 19, 2008
United States v. Gill, No. 07-0284-cr (2d Cir. April 17, 2008) (Cabranes, Sotomayor, Wesley, CJJ) (per curiam)Gill, who pled guilty to making false statements in a health care matter, unsuccessfully challenged two of his special conditions of supervised release...

Cracked Up

Posted on April 19, 2008
United States v. Lee, No. 06-4933-cr (2d Cir. April 17, 2008) (Cabranes, Wesley, CJJ, Castel, DJ)Defendant Cathy Lee received a 120-month sentence, the mandatory minimum, in a crack trafficking case. She raised on appeal a host of constitutional and statutory challenges to her sentence, claiming that it violated � 3535(a), the Eighth Amendment, and equal protection, in light of the powder-vs-crack sentencing disparities...

For Your Consideration

Posted on April 12, 2008
United States v. Hardwick, No. 04-1369-cr (2d Cir. April 11, 2008) (Winter, Walker, Sotomayor, CJJ)Glen Hardwick was convicted after a jury trial of conspiracy to commit and aiding/abetting murder-for-hire in violation of 18 U.S.C. � 1958. Virtually all of the evidence of the ?consideration? element of the offense came from the plea allocution of Hardwick?s brother, which was admitted into evidence over objection, although not a Confrontation Clause objection...

Next Stop, Confusion

Posted on April 09, 2008
United States v. Hendry, No. 06-5118-cr (2d Cir. Aprl 9, 2008) (Leval, Calabresi, Wesley, CJJ) (per curiam)In this decision the Court blows yet another opportunity to clarify the ?fast-track? sentencing issue in illegal reentry cases. The court has already held that district courts are not required to take into account the lower sentences imposed in fast track districts, but has left open the question whether a court has the authority to do so if it deems a reduced sentence warranted...

SUMMARY SUMMARY

Posted on April 08, 2008
Here are three more s/o?s to chew on:In United States v. Glum, No. 06-3099-cr (2d Cir. April 8, 2008), the court ordered a Crosby remand even though the district court, when denying the defendant?s pro se 2255 motion, had already indicated that it would impose the same sentence...

Consecutive Privilege

Posted on April 04, 2008
United States v. Donoso, No. 07-0635-cr (2d Cir. April 3, 2008) (McLaughlin, Hall, CJJ, Sand, DJ) (per curiam)Resolving an open question in this circuit, the court here holds that, under 18 U.S.C. � 3584(a), a district judge cannot order the federal sentence to run consecutively to another sentence that has not yet been imposed...

Medicareless

Posted on April 03, 2008
United States v. Wexler, No. 06-1571-cr (2d Cir. April 3, 2008) (Miner, Raggi, CJJ, Rakoff, DJ)David Wexler was a Manhattan dermatologist who ran a prescription mill. He would prescribe painkillers to patients whom he did not examine or treat, often with the understanding that either the prescriptions or the medications would be sold to others...

4(b) and After

Posted on March 31, 2008
United States v. Frias, No. 06-5381-cr (2d Cir. March 31, 2008) (Cardamone, Sack, Katzmann, CJJ)The ten-day time for filing a notice of appeal in a criminal case under Fed.R.Ap.Proc. 4(b) is not jurisdictional, which means that the court can consider an untimely appeal if the government forfeits a claim of untimeliness failing to raising it...

Summary Summary

Posted on March 27, 2008
It has been a slow week in Foley Square - lots of civil and immigration decisions, but not too much on the criminal front. So, here are some recent summary orders of interest:In United States v. Williams, No. 06-5530-cr (2d Cir. March 27, 2008), the court dealt with an unusual circumstance in this circuit - an illegal reentry jury trial...

About Face!

Posted on March 24, 2008
United States v. Dominguez, No. 05-7005-cr (2d Cir. February 15, 2008, amended March 20, 2008) (Miner, Sack, Hall, CJJ)Last month, when we wrote up this case, we noted with alarm the circuit?s holding that, for cases where the defendant faced a mandatory minimum but provided substantial assistance to the government, under � 3553(e) ?any reduction [in sentence] may be based only on substantial assistance to the government and on no other mitigating considerations...

Out of Ammunition

Posted on March 24, 2008
United States v. Sero, No. 05-6967-cr (2d Cir. March 19, 2008) (per curiam)Defendant Sero, who pled guilty to illegally exporting weapons to the Philippines, challenged his sentence. In doing so, he gave the court its first opportunity to consider U.S...

Fraud Man Out

Posted on March 24, 2008
United States v. Cutler, No. 05-2516(L) (2d Cir. March 17, 2008) (Jacobs, Kearse, Pooler, CJJ)In this case, the government successfully appealed the exceptionally lenient sentences that Judge Preska imposed on two defendants convicted of a multi-million dollar fraud...

Another Fine Meth

Posted on March 11, 2008
United States v. Tran, No. 05-5644-cr (2d Cir. March 10, 2008) (Sack, Sotomayor, Hall, CJJ)Defendant Tran was stopped by customs officers while crossing the border from Canada, ostensibly to go to a casino in New York. Customs agents found several bags of pills hidden in the interior roof lining of his rented car, but Tran repeatedly denied knowing that the drugs were there...

The ?Regalado Remand?

Posted on March 06, 2008
United States v. Regalado, No. 05-5379-cr (2d Cir. March 4, 2008) (Jacobs, Pooler, Sack, CJJ) (per curiam)At last, the circuit has told us what to do in light of Kimbrough. And the answer is, in essence, a Crosby remand.Regalado received a 262-month crack sentence, the bottom of the Guideline range (he was not a career offender)...

Career Angst

Posted on March 01, 2008
United States v. Sanchez, No. 05-3812-cr (2d Cir. February 29, 2008) (Kearse, Straub, Pooler, CJJ).In this long opinion, the court considered several challenges to recidivist sentences in a drug case. Two defendants, both ?career offenders? under Guidelines section 4B1...

Summary Summary

Posted on February 28, 2008
It's been a slow month for summary orders, but at last the court has eked out three of them worth noting.First, in United States v. Spencer, No. 06-2517-cr (2d Cir. February 26, 2008), the court reversed both defendants' conviction of conspiracy to commit bankruptcy fraud because the judge erroneously charged the jury that the defendant who testified had a "deep personal interest in the outcome of his prosecution" that created "a motive for false testimony...

Risky Business

Posted on February 27, 2008
United States v. Lynch, No. 05-6048-cr (2d Cir. February 27, 2008) (Calabresi, Raggi, Hall, CJJ)David Lynch received a 15-year sentence under the Armed Career Criminal Act (ACCA) and appealed. In an opinion that covered no new ground, the circuit affirmed...

Fast-Track Train Still Stalled

Posted on February 24, 2008
United States v. Ramirez-Sucar, No. 06-2909-cr (2d Cir. February 20, 2008) (per curiam)Here is yet another case in which the circuit does not decide whether a district court can consider the lenient illegal-reentry sentences that are regularly imposed in ?fast-track? districts as the basis for downward variance...

The Government Giveth and the Government Taketh Away

Posted on February 24, 2008
United States v. Dominguez, No. 05-7005-cr (2d Cir. February 15, 2008) (Miner, Sack, Hall, CJJ)Carol Dominguez faced 240-months in prison: a ten-year crack minimum that was doubled because of her prior conviction. The government moved for a downward departure under 5K1...

Russian Revolution

Posted on February 24, 2008
United States v. Verkhoglyad, No. 05-4210-cr (2d Cir. February 14, 2008) (Cabranes, Raggi, CJJ, Berman, DJ)Oleg Verkhoglyad was a Russian mobster who repeatedly received lenient treatment. First, after cooperating in a 1998 extortion case, he received a 5K1...

The Accidental Terrorist

Posted on February 15, 2008
United States v. Elfgeeh, No. 06-0638-cr (2d Cir. February 14, 2008) (Kearse, Sack, CJJ, Mills, DJ)Abad Elfgeeh, assisted by his nephew, Aref, ran a money-transfer business out of an ice cream parlor in Brooklyn that funneled money to Yemen and a host of other countries...

Dismembers Only

Posted on February 07, 2008
United States v. Pepin, No. 06-1462-cr (2d Cir. February 6, 2008) (Walker, Calabresi, Sack, CJJ)Humberto Pepin is awaiting a capital trial in the Eastern District of New York, where he is charged, inter alia, with murdering two individuals who crossed him, in ways real or imagined, in the course of his drug dealing enterprise...

Burglar Alarm

Posted on January 31, 2008
United States v. Brown, No. 05-5462-cr (2d Cir. January 30, 2008) (Kearse, Hall, CJJ, Rakoff, DJ)This opinion deals with a seemingly straightforward issue: whether a New York State conviction for burglary in the third degree is a ?crime of violence? under Guidelines section 4B1...

Forfeit To Be Tied

Posted on January 31, 2008
United States v. Schlesinger, No. 05-03021-cr (2d Cir. January 30, 2008) (Jacobs, Parker, Wesley, CJJ) (per curiam)Schlesinger, convicted of mail and wire fraud, made a clever, but unfortunately not clever enough, argument challenging the forfeiture of the proceeds...

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