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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

Reefer Gladness

Posted on May 23, 2010
United States v. Needham, No. 06-5652-cr (2d Cir. May 14, 2010) (Cabranes, Katzmann, Parker, CJJ)The three defendants here were part of a larger group that was in the business of robbing drug dealers of drugs and drug proceeds. They were all convicted of a Hobbs Act conspiracy, which included robberies of cocaine and heroin dealers, and each was also convicted of one substantive count involving the robbery of a marijuana dealer...

Deconstruction Project

Posted on May 23, 2010
United States v. Dorvee, No. 09-0648 (2d Cir. May 11, 2010) (Cabranes, Parker, CJJ, Underhill, DJ)In this first-of-a-kind opinion, the court (1) held that a within Guideline - albeit statutory maximum - sentence was substantively unreasonable and (2) found that an offense Guideline other than the crack Guideline was not the product of the Commission?s traditional empirical role and hence, under Kimbrough, was not entitled to deference...

Package Deal

Posted on May 09, 2010
United States v. Torres, No. 09-1771-cr (2d Cir. May 5, 2010)(Kearse, Hall, CJJ, Rakoff, DJ)Every once in a while, when the judge and jury refuse to acquit an innocent defendant, the circuit steps in and sets things right. This is such a case. Finding that the evidence was insufficient to establish that Torres knew that there were drugs in some UPS packages that he went to great lengths to pick up, the court reversed the conviction and remanded for entry of a judgment of acquittal...

Summary Summary

Posted on May 08, 2010
Here are two recent summary orders of interest and one from March that we missed at the time:In United States v. Pender, No. 08-5474-cr (2d Cir. May 6, 2010), there was a factual dispute as to whether the defendant was on parole when he committed the federal offense...

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American Idle

Posted on May 08, 2010
United States v. Hernandez, No. 09-1421-cr (2d Cir. May 5, 2010) (Jacobs, Kearse, Calabresi, CJJ)Here, the circuit found that the defendant?s sentence was procedurally unreasonable because it took the district court fifteen years to get around to imposing it...

PC World

Posted on May 01, 2010
United States v. Key, No. 08-3218-cr (2d Cir. April 28, 2010) (Miner, Cabranes, Wesley, CJJ) (per curiam)This interesting per curiam holds that a defendant's appeal of the denial of his crack resentencing motion under 18 U.S.C. � 3582(c)(2) was rendered moot by his release from prison...

Collateral Damage

Posted on May 01, 2010
United States v. Cerna, No. 09-1170-cr (2d Cir. April 27, 2010) (Katzmann, Hall, CJJ, Rakoff, DJ)Against the backdrop of the circuit?s ongoing concern over the ?exceptionally poor quality of representation often provided by attorneys retained by aliens as they attempt to negotiate the complexities of our immigration law,? here, the circuit reversed the district court?s denial of the defendant?s collateral challenge to the legality of his deportation...

Summary Summary

Posted on April 26, 2010
There hasn?t been much action in the circuit in the past couple of weeks. This smattering of noteworthy summary orders will have to keep us occupied for the time being.In United States v. Givens, No. 09-0765-cr, and United States v. Blue, No. 09-0219-cr (2d Cir...

Summary Summary

Posted on April 11, 2010
The circuit seemingly never tires of issuing summary orders of interest. Here are three more:In United States v. Grant, No. 09-1760-cr (2d Cir. April 8, 2010), the court ordered a Jacobson remand so that the district court could clarify an ambiguity in its decision on a motion to suppress that was material to the circuit's consideration of whether police officers had the defendant's implied consent to enter his apartment...

An Appeal To Reason

Posted on April 10, 2010
Ramchair v. Conway, No. 08-2004-pr (2d Cir. April 2, 2010)(Winter, Calabresi, Sack, CJJ)It seems as if most Second Circuit habeas decisions deal only with the procedural hurdles faced by state prisoners. So it is indeed remarkable that the court has decided two cases less than one week apart in which it got through the procedural thicket and actually resolved the substantive issue presented in the case...

Payment Plan Available

Posted on April 10, 2010
United States v. Kyles, No. 06-4196-cr (2d Cir. April 2, 2010) (Miner, Katzmann, Raggi, CJJ)In 1993, defendant Kyles received a long bank robbery sentence, along with a $4,133 restitution order. The court did not set a payment schedule, and instead (illegally) delegated that task to the Probation Department, which never acted...

The Heavy Burdens

Posted on April 10, 2010
United States v. Burden, No. 03-1727-cr (2d Cir. March 31, 2010) (Hall, Livingston, Gibson, CJJ)From 1997 to 2001, Kelvin Burden, ran a crack cocaine ring in Norwalk, Connecticut, with the help of several of his brothers, two of whom were named David, and a few of his friends...

The Persistents of Apprendi

Posted on April 09, 2010
Besser v. Walsh, No. 05-4375-pr (2d Cir. March 31, 2010) (Winter, Sack, CJJ, Murtha, DJ)While the blog does not usually cover habeas cases, this one is important, as it invalidates New York State?s discretionary felony persistent offender sentencing scheme...

High Sierra

Posted on March 29, 2010
United States v. Sierra, No,. 08-2761-cr (2d Cir. March 29, 2010) (Jacobs, Miner, Livingston, CJJ) Gustavo Sierra pled guilty to one count of drug trafficking and one count of money laundering. The drug count involved 21 kilograms of heroin, while the money laundering count involved the proceeds of the sale of between 2 and 3...

The Boss From Hell

Posted on March 27, 2010
United States v. Sabhnani, No. 08-3720-cr (2d Cir. March 25, 2010) (Wesley, Livingston, CJJ, Restani, JCIT)The defendants, husband and wife, were convicted of forced labor, harboring aliens, peonage and document servitude, both substantive and conspiracy...

A Pattern Emerges

Posted on March 27, 2010
United States v. Basciano, NO. 09-0281-cr (2d Cir. March 23, 2010) (Walker, McLaughlin, Raggi, CJJ)On this interlocutory appeal, the circuit found that an indictment charging Basciano, who had previously been convicted of racketeering, with a successive racketeering count in conducting the affairs of the Bonanno crime Family violated the Double Jeopardy Clause, because both counts alleged the same pattern of racketeering...

PC World

Posted on March 27, 2010
United States v. Bari, No. 09-1074-cr (2d Cir. March 22, 2010) (Cabranes, Parker, CJJ, Underhill, DJ)(per curiam)The court?s most recent per curiam addresses a district court?s use of the resultgs of an Internet search, in part, to find that the defendant violated his supervised release...

Summary Summary

Posted on March 27, 2010
This has been a busy week in the circuit, both for published opinions and summary orders, of which there are three more of interest.United States v. Harrington, No. 09-1160-cr (2d Cir. March 23, 2010), has two noteworthy features. First, at this gun possession trial, the district court allowed the defense to present evidence on, and charged the jury on, "innocent possession," based on the defendant's claim that he possessed the gun only to turn it in to the city's "Toys for Guns" program...

What A Difference A Day Makes

Posted on March 27, 2010
United States v. Janvier, No. 08-5978-cr (2d Cir. March 26, 2010)(Jacobs, Lynch, CJJ, Restani JCIT)On July 21, 2008, the last day of Janvier?s three-year supervised release term, the probation department submitted a petition to the district court alleging that Janvier had violated the conditions of his supervised release...

Summary Summary

Posted on March 21, 2010
Here are two more interesting summary orders.In United States v. Spivack, No. 08-6091-cr (2d Cir. March 18, 2010), the prosecutor allowed a government witness to testify falsely that the defendant was a pedophile. The court characterized this as ?outrageous? and as ?severe misconduct...

Sex Offender Goes South, As Does His Defense

Posted on March 21, 2010
United States v. Van Buren, No. 08-6262-cr (2d Cir. March 17, 2010) (Walker, Straub, Livingston, CJJ) A jury convicted Van Buren of failing to comply with the registration requirements of SORNA after he moved from his hotel in Binghamton, New York, to his mother?s house in North Carolina without updating his New York registration or registering in North Carolina...

An Unwelcome Edition

Posted on March 21, 2010
United States v. Gilmore, No. 07-0349-cr (2d Cir. March 17, 2010)(Leval, Katzmann, Livingston, CJJ)In 2005, Gilmore pled guilty to producing child pornography. He faced a fifteen-year mandatory minimum and a thirty-year maximum sentence. His plea agreement included a non-binding estimate that indicated that his guideline sentence was life imprisonment but that, since this exceeded the statutory maximum, the applicable guideline sentence would be thirty years...

An Exercise in Frivolity

Posted on March 20, 2010
United States v. Davis, No. 08-3240-cr (2d Cir. March 15, 2010)(Winter, Sack, CJJ, Cogan, DJ)Davis pled guilty to a two-count child pornography indictment. He faced a 60-month mandatory minimum and a guideline range of 97 to 121 months? imprisonment. At sentencing, he argued forcefully for a 60-month sentence, focusing on his age and health problems as well as his conduct - he had no contact with a child, and did not distribute the images...

Summary Summary

Posted on March 14, 2010
Summary orders of interest have literally been piling up on my desk. Here's the latest crop:In United States v. Muse, No. 07-4482-cr (2d Cir. March 11, 2010), the court vacated the sentence where the district court erroneously believed that jury? finding on a special interrogatory indicated that the defendants had been convicted only of a misdemeanor...

Checking References

Posted on March 14, 2010
United States v.Deandrade, No. 08-4815-cr (2d Cir. March 12, 201(Jacobs, Hall, CJJ, Murtha, DJ)At Deandrade?s trial, two cooperating witnesses mentioned that he was incarcerated during his trial. The district court denied his mistrial motions, and on appeal, the circuit affirmed...

Final Examination

Posted on March 13, 2010
United States v. Culbertson, No. 09-0485-cr (2d Cir. March 10, 2010) (Miner, Cabranes, CJJ, Rakoff, DJ)Defendant Troy Culbertson, acting pro se, moved in the circuit for poor person?s relief and for appointment of counsel to pursue an interlocutory appeal of the district court's orders (1) denying his speedy trial motion, (2) refusing to appoint him new counsel, and (3) denying his request for a psychiatric evaluation...

Trailer Trashed

Posted on March 13, 2010
United States v. Navas, No. 09-1144-cr (2d Cir. March 8, 2010) (Leval, Wesley, CJJ, Gleeson, DJ)In connection with a narcotics investigation, DEA agents watched the defendants unload a tractor-trailer at the Hunts Point Market. The defendants then drove it to a private warehouse, where they parked it, unhitched the cab, and lowered the legs in front of the trailer to stabilize it...

Strong Arm Of The Law

Posted on March 13, 2010
United States v. Walker, No. 08-3874-cr (2d Cir. February 18, 2010) (Feinberg, Katzamann, CJJ, Ellis, DJ)Here, the circuit upheld the use of Walker?s prior conviction for ?strong arm robbery? - a South Carolina common law offense - as a ?crime of violence? to enhance his offense level under the firearms guideline...

The Liar's Flub

Posted on March 13, 2010
United States v. Savoca, No. 08-4610-cr (2d Cir. February 25, 2010) (Sack, Parker, CJJ, Goldberg, JCIT)Defendant Savoca and his brother were both charged in an attempted robbery and shooting. Savoca accepted a plea agreement to a Hobbs Act attempt with a 37 to 46 month range and a ?discharge? 924(c) with a mandatory 120-month consecutive sentence, for a total range of 157 to 166 months, including a 3-level reduction for acceptance of responsibility...

A Main Event

Posted on March 13, 2010
United States v. Green, No. 08-5426-cr (2d Cir. February 17, 2010) (Kearse, Winter, Pooler, CJJ)In this case, the Court holds that a crack sentence that was the product of an imperfectly amended Rule 11(c)(1)(C) plea agreement could not be reduced under 18 U...

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