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Second Circuit Sentencing Blog 
Summaries and analysis of ALL sentencing decisions in the Second Circuit and the disrict courts of the Second Circuit.
Post Frequency: 0.4/day Last Entry: November 14, 2009 at 13:12:41 Recent Entries: 132
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Clarifying The Meaning Of "Abuse of Discretion"
Posted on November 14, 2009United States v. Hasan, Docket No. 08-4921-cr , 2009 WL 3737521 (2d Cir. Nov. 10, 2009) (found here) In Hasan, the Second Circuit takes on the job of more clearly explaining what it means by "abuse of discretion" review in...
Two Sentencing Points From The Second Circuit
Posted on October 29, 2009United States v. Byors, Docket No. 08-4811-cr (2d Cir. Oct. 29, 2009) (found here) On appeal, Byors argued that the district court erred in: (1) not offsetting the loss attributable to his fraud by amounts that represented legitimate investment in...
Health, Family Support In The Community As A Basis For A Non-Guidelines Sentence
Posted on October 24, 2009United States v. Jiang, No. 09-CR-34, 2009 WL 3254434 (E.D.N.Y. Oct. 9, 2009) Quick note: Jiang was convicted of fraudulently importing and trafficking in certain counterfeit goods, for which he faced an advisory Guidelines range of imprisonment of bewteen 78...
Is Substantive Reasonableness Review Dead?
Posted on October 24, 2009United States v. Rigas, Docket Nos. 08-3485-cr (L), 08-3500-cr (CON), 08-3592-cr (CON), 08-3597-cr (CON), 2009 WL 3166066 (2d Cir. Oct. 5, 2009) You remember the Rigas father and son team. Convicted in June 2004 of perpetrating a massive fraud involving...
Defendant Taken Advantage Of -- Family Circumstances -- Non-Guidelines Sentence
Posted on October 24, 2009United States v. Morillo, No. 08-CR-920 (JBW), 2009 WL 3174096 (E.D.N.Y. Oct. 1, 2009) Quick note: Morillo pled guilty to importing heroin into the United States, for which she faced an advisory Guidelines range of imprisonment of between 37 to...
The Constitutional Right To Speedy Sentencing
Posted on October 24, 2009United States v. Ray, 578 F.3d 184 (2d Cir. 2009) There was a 15 (that's right -- 15) year gap between a decison by the Second Circuit reversing Ray's sentence and remanding for resentencing, and the actual resentencing hearing, at...
District Court Protest Concerning Criminal History Category Adjustments And The Safety Valve
Posted on October 24, 2009United States v. Feaster, No. 07-CR-874 (JBW), 2009 WL 2757157 (E.D.N.Y. Aug. 26, 2009) The district court sentenced Feaster to 120 months (10 years) imprisonment (the mandatory minimum for his narcotics offense), but was clearly not happy about it. Specifically,...
Safety Valve And Resentencing
Posted on October 24, 2009United States v. Santano, No. 07-CR-874 (JBW), 2009 WL 2600356 (E.D.N.Y. Aug. 24, 2009) An unusual procedural history and flexibility on the part of the district court yields a just sentence. Santano was convicted of conspiracy to distribute and possession...
Imposing Role Adjustment Without Specific Factual Findings Constitutes "Plain Error"
Posted on October 24, 2009United States v. Ware, 577 F.3d 442 (2d Cir. 2009) Ware was convicted of securities fraud and conspiracy to commit securities fraud, and was sentenced principally to 97 months imprisonment. Proceeding pro se on appeal, Ware challenged, among other things,...
Second Circuit: 2001 Change To U.S.S.G. § 2F1.1(b)(7)(B) Does Not Apply Retroactively
Posted on October 21, 2009United States v. Amico, 573 F.3d 150 (2d Cir. 2009) Amico and the Government disputed the question of whether a 2001 amendment to the Guidelines applies retroactively. Specifically, Section 2F1.1(b)(7)B) of the 1998 Guidelines states, in relevant part, that if...
What Judges Really Think
Posted on October 21, 2009United States v. Fishman, 631 F. Supp. 2d 399 (S.D.N.Y. 2009) Fishman was a partner at law firm Latham & Watkins, and pled guilty to a multi-year scheme in which committed dozens if not hundreds of acts of dishonesty and...
A Reminder Of The Power Of Cooperation
Posted on October 21, 2009United States v. Kidd, No. 07-CR-798 (JBW), 2009 WL 2226486 (E.D.N.Y. June 5, 2009) Kidd pled guilty to a heroin offense, for which she faced an advisory Guidelines range of imprisonment of between 41 and 51 months. But she cooperated...
Close To The Line Of Procedural Unreasonableness
Posted on October 21, 2009United States v. Bender, No. 08-3103-cr., 2009 WL 2476691 (2d Cir. Aug. 14, 2009) Bender challenged the procedural and substantive reasonabless of his 120 month sentence. Specifically, the Second Circuit noted that the district court had satisfied its obligation to...
Short Interesting Commentary On The Upper End Of Substantive Reasonableness
Posted on October 21, 2009United States v. Giordano, No. 07-3487-cr (2d Cir. Aug. 12, 2009) (found here) Giordano challenged, among other things, the substantive reasonableness of his 37 year sentence for some clearly bad conduct that is not detailed in the Second Circuit's summary...
Sadism And The Guidelines
Posted on October 21, 2009United States v. Freeman, Docket No. 08-1886-cr., 2009 WL 2430667 (2d Cir. Aug. 10, 2009) On appeal, Freeman challenged the district court's application of a four level enhancement for the possession of images containing sadistic or masochistic conduct...
Procedural Error For Presuming The Guidelines To Be Reasonable
Posted on October 20, 2009United States v. Peguero, No. 07-2306-CR., 2009 WL 2524006 (2d Cir. Aug. 19, 2009) Peguero appealed from a judgment sentencing him to 50 months imprisonment. At sentencing the district court stated: "I have the ability to do justice and depart...
Rejection Of Non-5K Cooperation As A Basis For Non-Guidelines Sentence Affirmed On Appeal
Posted on October 20, 2009United States v. Martin, No. 08-2622-cr., 2009 WL 2524003 (2d Cir. Aug. 19, 2009) Martin appealed his 180 months sentence for a cocaine offense, which sentence was substantially below the sentencing range of 262 to 362 months recommended by the...
Non-Guidelines Sentence Based On Downward Adjustment Of Criminal History Score
Posted on October 20, 2009United States v. Majano-Alvarez, No. 07-CR-839 (JBW), 2009 WL 2878447 (E.D.N.Y. Sept. 2, 2009) Majano-Alvarez pled guilty to a single-count indictment for illegal re-entry. He faced an advisory Guidelines range of 57 to 71 months, yet was sentenced to 30...
Non-5K Cooperation Leads (In Part) To A Non-Guidelines Sentence
Posted on October 20, 2009United States v. Baldev, No. 08-CR-868 (JBW), 2009 WL 2878445 (E.D.N.Y. Sept. 2, 2009) A quick note: Baldev pled guilty to count two of a five-count indictment, which charged that he, together with others, conspired to distribute and possess with...
20:1 Crack/Powder Ratio and Difficult Family Circumstances
Posted on October 20, 2009United States v. Dozier, No. S2 Cr. 008-01 (RWS), 2009 WL 2870079 (S.D.N.Y. Sept. 3, 2009) Dozier was convicted of one count of conspiracy to distribute and possess with an intent to distribute crack cocaine, for which he faced life...
Possible Signal Concerning Higher Level Of Scrutiny For Restitution Orders From The Second Circuit?
Posted on July 15, 2009United States v. Pearson, No. 07-0142-cr (2d Cir. July 2, 2009) (found here) Pearson appealed from a judgment convicting him, following a guilty plea, of multiple counts of producing, transporting, receiving and possessing child pornography. He was sentenced to fifteen...
Sick Wife and Rehabilitation = Non-Guidelines Sentence
Posted on July 15, 2009United States v. Saines, No. 07-CR-522 (JBW), 2009 WL 1851003 (E.D.N.Y. June 29, 2009) Short Note: Saines pled pled guilty to a single-count information charging a structuring offense, for which he faced an advisory Guidelines range of 24 to 30...
The Ex Post Facto Clause In The Post-Booker World
Posted on July 01, 2009The following is my article (with Charles Clayman) in today's New York Law Journal entitled "The Ex Post Facto Clause In the Post-'Booker' World." July 01, 2009 "Fascinating "and "intriguing" are not words typically used when referring to the United....
Bernard Madoff Sentence: 150 Years (Or 1,800 Months)
Posted on June 29, 2009You can read the news reports, watch the news, skim the blogs, etc. But nothing substitutes for knowing precisely what happened in Judge Chin's courtroom this morning. For those who are interested in the unvarnished view, here is the transcript...
Failure To Abide By "Transitional Supervision" Not A Violent Felony Within The Meaning of ACCA
Posted on June 26, 2009United States v. Mills, Docket No. 07-0308-cr (2d Cir. June 26, 2009) Mills challenged a district court's finding that he qualified for ACCA sentencing because of his prior Connecticut escape conviction. Specifically, Mills was released from Connecticut prison and placed...
Post-Offense Rehabilitation (And Cooperation) Result In Wide Variance
Posted on June 26, 2009United States v. Cadle, No. 04-CR-750 (JBW), 2009 WL 1764980 (E.D.N.Y. June 11, 2009) Short Note: Cadle pled guilty to conspiring to import cocaine into the United States, an offense for which she faced an advisory Guidelines range of 37...
A Good Man Catches A Break
Posted on June 26, 2009United States v. Medeiros, No. 08-CR-0696 (JBW), 2009 WL 1764981 (E.D.N.Y. June 18, 2009) Short Note: Medeiros pled guilty to illegal re-entry into the United States.an offense for which he faced an advisory Guidelines range of 70 to 87 months...
No Surprise: Procedural Error Based On District Court's Adoption Of Two Different Advisory Guidelines Ranges
Posted on June 24, 2009United States v. Hossain, No. 08-3805-cr (2d Cir. June 24, 2009) Hossain complained about procedural error in his sentencing hearing -- specifically, the district court "erred by not calculating and identifying the applicable Sentencing Guidelines range and by failing to...
Second Circuit: No Problem That Defendant And His Counsel Didn't See PSR Addendum Because They Saw A Government Letter Referencing Same
Posted on June 24, 2009United States v. Simmons, No. 08-4031-cr (2d Cir. June 24, 2009) Simmons argued on appeal that he was denied due process because his attorney did not receive a copy of an addendum to his PSR when he appeared for resentencing...
It's Difficult To Register As A Sex Offender If You're Homeless
Posted on June 24, 2009United States v. Akin, No. 08-CR-613 (JBW), 2009 WL 1743925 (E.D.N.Y. June 15, 2009) Short Note: Akin pled guilty to a single-count indictment charging that he traveled interstate and failed to update his sex offender registration, an offense for which...
Bottom End Of The Guidelines For "Primary Caregiver"
Posted on June 24, 2009United States v. Dey, No. 07-CR-725 (JBW), 2009 WL 1720956 (E.D.N.Y. June 18, 2009) Short Note: Dey pled guilty certain gambling offenses, and faced an advisory Guidelines range of 6 to 12 months imprisonment (Zone B). He received a sentence...
A Truly Sad Story And A Non-Guidelines Sentence
Posted on June 22, 2009United States v. Torres, No. 08 Cr. 1062-01 (RWS), 2009 WL 1619640 (S.D.N.Y. June 4, 2009) Torres pled guilty to one count of conspiracy to distribute and possession with intent to distribute crack. Based on her advisory Guidelines offense level...
Contrition / Family Circumstances And A Non-Guidelines Sentence
Posted on June 22, 2009United States v. Guzman, No. 08-CR-332 (JBW), 2009 WL 1617942 (E.D.N.Y. June 2, 2009) Guzman pled guilty to count two of a twelve-count indictment charging a scheme to defraud a bank. For his offense, Clark faced an advisory Guidelines range...
Family Circumstances And A Non-Guidelines Sentence
Posted on June 22, 2009United States v. Clark, No. 08-CR-332 (JBW), 2009 WL 1617939 (E.D.N.Y. June 10, 2009) Clark pled guilty to count two of a twelve-count indictment charging a scheme to defraud a bank. For his offense, Clark faced an advisory Guidelines range...
Role Enhancements And RICO
Posted on June 22, 2009United States v. Ivezaj, Docket No. 06-3112-cr-(L), et al., (2d Cir. June 11, 2009) (found here) Ivezaj challenged his sentence on the ground that any aggravating role enhancement the district court applied should have been based on his conduct as...
Judge Sotomayor And The Sentencing Guidelines
Posted on May 28, 2009There is much out there (just consult the major news outlets) concerning Judge (and proposed Justice) Sotomayor. (Congrats to Judge Sotomayor!) For those who are interested in her sentencing jurisprudence, attention should be paid to Doug Berman's Sentencing Law and...
Second Circuit: No Below New Guidelines Sentences On Crack Resentencings
Posted on May 28, 2009United States v. Savoy, Docket No. 08-4900-cr (2d Cir. May 27, 2009) (found here) The Second Circuit (including Judge Sotomayor) considered the question of whether Section 1B1.10 of the Guidelines (the Sentencing Commission's policy statement regarding the reduction of sentences...
A Series Of Procedural Errors
Posted on May 22, 2009United States v. Weisberg, No. 07-CR-066A, 2009 WL 1373676 (W.D.N.Y. May 15, 2009) A United States District Judge was compelled to reverse and remand the sentencing decision of a United States Magistrate Judge after discovering several procedural errors...
Non-Guidelines Sentence Based On Defendant's History And Characteristics
Posted on May 15, 2009United States v. Bello, No. 08-CR-801 (JBW), 2009 WL 1310791 (E.D.N.Y. May 5, 2009) Bello pled guilty to a narcotics offense for which the Guidelines indicated a 37 to 46 month term of imprisonment (Level 21). Bello, however, qualified for...
Letter to the Editor -- New York Times
Posted on May 11, 2009Here's a link to my letter to the editor published in today's edition of the New York Times in response to an op-ed last week by former Attorney General John Ashcroft concerning deferred prosecution agreements. Or, for those who don't...
Every Variance Counts
Posted on May 06, 2009United States v. Pender, No. 07-CR-874 (JBW), 2009 WL 1181052 (E.D.N.Y. May 1, 2009) Pender faced an advisory Guidelines range of 135 to 168 months for his role in a crack distribution ring,but was sentenced "only" to 120 months imprisonment....
Didn't Take Much To Get There, And Sounds Like It Was The Right Sentence
Posted on May 06, 2009United States v. Mayala, No. 08-CR-42 (JBW), 2009 WL 1181051 (E.D.N.Y. May 1, 2009) Mayala faced an advisory Guidelines range of 6 to 12 months imprisonment for her role in a bank fraud scheme, and was sentenced to time served...
Chutzpah
Posted on May 06, 2009United States v. Ferraris, No. 08-5116-cr (2d Cir. May 6, 2009) (found here) Unless I'm missing something, the Second Circuit's short decision says it all: Defendant-Appellant Mark Ferraris challenges as unreasonable his sentence, which includes imprisonment for 36 months...
Second Circuit Affirms Wide Upward Variance
Posted on May 01, 2009United States v. Martinucci, 561 F.3d 533 (2d Cir. 2009) Martinucci pled guilty to one count of producing child pornography, in violation of 18 U.S.C. § 2251(a). For that offense, he faced a 180 month mandatory minimum, even though the...
Judge Rakoff Courageously Does It Again: "When the letter of the law so far departs from justice as to become the instrument of brutality, common sense should call a halt."
Posted on April 24, 2009United States v. Ballard, 599 F. Supp. 2d 539 (S.D.N.Y. March 2, 2009) The distorting effects of mandatory minimum sentences are never more evident than in the case of defendant Zachary Ballard. Although his co-defendant, Anthony Steele, by entering into...
Who's Minding the Minders?
Posted on April 20, 2009The U.S. Department of Justice is charged with responsibility for investigating and prosecuting institutional wrongdoing. What happens, though, when the DOJ itself engages in misconduct? Last week Miami, FL district court judge Alan Gold imposed extraordinary sanctions on federal prosecutors...
Second Circuit: Abuse of Discretion Standard Applies to 18 U.S.C. 3582(c)(2) Motions
Posted on April 19, 2009United States v. Borden, Docket No. 08-1625-cr (2d Cir. April 17, 2009) (found here) Joining several other circuits, the Second Circuit has held that because 18 U.S.C. § 3582(c)(2) "states that a district court may reduce the term of imprisonment,...
Reversal For Failure To Consider Age-Recidivism Correlation
Posted on April 15, 2009United States v. Hamilton, et al., No. 07-2874-cr (2d Cir. April 14, 2008) (found here) Hamilton argued that the district court abused its discretion by failing to consider Hamilton's age and his reduced likelihood of recidivism. He argued that because...
Second Circuit: Investment Loss Includes Potential Gain
Posted on April 15, 2009United States v. Scott, No. 08-1489-cr (2d Cir. April 14, 2009) (found here) On appeal Scott contended that the district court incorrectly calculated the amount of restitution he owed his victims because it had included "lost investment returns, calculated as...
Once Again, The Safety Valve
Posted on April 15, 2009United States v. Smith, No. 08-CR-545 (JBW), 2009 WL 971682 (E.D.N.Y. April 2, 2009) How do you get from a five year mandatory minimum sentence and an advisory Guidelines range of 37 to 46 months down to a sentence of...
Safety Valve Reduces Sentence From 10 Year Mandatory Minimum To Time Served
Posted on April 12, 2009United States v. Samuels, No. S1-08-Cr.-08-03 (RWS), 2009 WL 875320 (S.D.N.Y. April 2, 2009) Ah . . . the power that the safety valve can sometimes yield. Samuels pled guilty to conspiring to distribute and possess with intent to distribute...
Note To Appellate Lawyers: Getting Away From An Appeal Waiver
Posted on April 11, 2009United States v. Peter, No. 08-1544-cr (2d Cir. April 10, 2009) (found here) Peter is, for the most part, an unremarkable procedural and substantive unreasonableness appeal. But Peter's plea agreement contained an appellate waiver (just as most plea agreements do)...
Second Circuit: Still No Problem With Acquitted Conduct Sentencing
Posted on April 11, 2009United States v. Robles, et al., Nos. 07-1013-cr (L), 07-1027-cr (con), 07-1221-cr (con) (2d Cir. April 9, 2009) (found here) There has been much criticism of acquitted conduct sentencing. I've written on it here. And Doug Berman of Sentencing Law...
A Wild Sentencing Story
Posted on April 08, 2009United States v. Walker, No. 08-1474-cr (2d Cir. April 8, 2009) (found here) You don't often see a story like this one. Walker was sentenced to 96 months for two counts of bank fraud. On appeal, he argued that (among...
Second Circuit Affirms Wide Upward Variance
Posted on April 08, 2009United States v. Martinucci, Docket No. 08-0104-cr (2d Cir. April 8, 2009) (found here) Martinucci was convicted of some pretty serious crimes (child pornography and sexual abuse and the like). His offense level under the Guidelines was 33, which indicated...
The Longest . . . Resentencing Hearing
Posted on April 08, 2009United States v. Hernandez, No. 89-CR-229 (TCP) (E.D.N.Y. March 27, 2009) Hernandez was highlighted for me in an email I received. The substance of the re-sentencing is not nearly as interesting and perplexing as the process by which it came...
4 Is The "Magic Number" For Fast-Track Disparity Downward Adjustments
Posted on April 02, 2009United States v. Gutierrez-Hernandez, No. 08 Cr. 1335-01 (RWS), 2009 WL 812265 (S.D.N.Y. March 26, 2009) In this case, Judge Sweet takes on the question of the appropriate adjustment to account for the disparity in Guidelines offense levels for illegal...
Procedural Error Found, Yet No Remand For Resentencing
Posted on April 01, 2009United States v. Ramirez, No. 08-2771-cr (2d Cir. April 1, 2009) (found here) It's no April Fools joke. The Second Circuit denied a Government appeal based on procedural errors. Here's how it went down. The Government submitted that Ramirez's sentence...
A Little Somthing On Loss Estimates
Posted on March 31, 2009United States v. Iqbal, No. 08-2262-cr (2d Cir. March 31, 2009) (found here) On appeal, Iqbal challenged his 24 month sentence, asserting that the district court's loss calculation was erroneous. Specifically, the district court determined that the loss amount exceeded...
No Credit For You!
Posted on March 30, 2009United States v. Coons, No. 07-2485-cr (2d Cir. March 30, 2009) (found here) Coons received a 2-6 year indeterminate New York state sentence for reckless endangerment. He was released on parole, and subsequently arrested and placed in state custody for...
Why No Criminal History Downward Departure?
Posted on March 26, 2009United States v. Ortiz-Portalatin, No. 08-CR-352 (JBW), 2009 WL 763355 (E.D.N.Y. March 13, 2009) Because the standards are looser, I've always been a big fan of criminal history downward departures. And it seems that Ortiz-Portalatin was a good candidate for...
When Bad Things Happen To Good Plea Agreements
Posted on March 25, 2009United States v. Soto, et al., Nos. 08-0654-cr, 08-0706 (2d Cir. March 25, 2009) (found here) The defendants signed plea agreements with the Government setting forth stipulated Guidelines ranges. The Second Circuit does not disclose what those ranges were...
A Non-Guidelines Sentence Based On The History And Characteristics Of The Defendant
Posted on March 23, 2009United States v. Ahmad, No. 08-CR-460 (JBW), 2009 WL 700870 (E.D.N.Y. March 16, 2009) The Court calculated Ahmad's Guidelines offense level to be 10 for Count 1 of a two count indictment (charging possession and use of a United States...
A View Of Leader/Organizer
Posted on March 23, 2009United States v. Adams, No. 06-1714-cr (L), et al., (2d Cir. March 23, 2009) (found here) No surprise that the Second Circuit affirmed a 4 level leader/organizer enhancement here. Nevertheless, it's always instructive to learn what constitutes a leader/organizer...
The Power Of "Global" Points
Posted on March 16, 2009United States v. Yauri, Docket No. 08-1105-cr (2d Cir. March 16, 2009) (found here) Basically, the Government and the defendant agreed that the defendant's counsel dropped the ball in obtaining a two level "global resolution" reduction. As described by the...
96 Years Old And Still A Threat?
Posted on March 16, 2009United States v. Miloro, No. 02-1276-cr (2d Cir. March 12, 2009) (found here) Miloro was found to have violated his supervised release, and was sentenced to 18 months imprisonment to run consecutive to the state sentence imposed for the crimes...
Consecutive Ineffective Assistance Of Counsel Claims
Posted on March 16, 2009United States v. Pitcher, Docket No. 05-3182-cr (2d Cir. March 11, 2009) (found here) Pitcher was convicted at trial for conspiracy to import and distribute heroin, and was sentenced to 121 months imprisonment. On appeal, he contended that he'd received...
The Madoff Information
Posted on March 11, 2009Here's a link to my piece on Slate today entitled "Madoff's 'Information': Why Didn't the Ponzi Schemer Get Indicted Instead?" It details the distinctions between informations and indictments, and also describes Pimentel letters and the sentencing discretion afforded by Booker...
Second Circuit: Abuse Of Trust Enhancement Can Be Based On Relevant Conduct
Posted on March 03, 2009Finally, Someone Relies On Ministro-Tapia
Posted on February 20, 2009United States v. Lambert, No. 07-4846-cr (2d Cir. Feb. 20, 2009) (found here)In preparing sentencing memoranda, I often cite to United States v. Ministro-Tapia, 470 F.3d 137 (2d Cir. 2006), which dealt with the parsimony clause of 18 U.S.C. §...
Possession Of Marijuana Counts For Criminal History Calculations
Posted on February 20, 2009United States v. Muse, No. 08-0831-cr, 08-0967-cr (2d Cir. Feb. 20, 2009) (found here)Muse challenged (among other things) the district court's calculation of his criminal history on the ground that the court erroneously added a criminal history point for his...
Double Counting And "Significant Physical Injury"
Posted on February 19, 2009United States v. Reyes, Docket No. 06-3699-cr (2d Cir. Feb. 19, 2009) (found here)Reyes pled guilty to one count of assault resulting in serious bodily injury in aid of a racketeering activity, in violation of 18 U.S.C. § 1959(a)(3). At...
Criticizing An Unsympathetic District Court
Posted on February 17, 2009United States v. Marino, No. 08-0615-cr (2d Cir. Feb. 17, 2009) (found here)Dan Marino worked for hedge fund swindler Samuel Israel. He pled guilty for his involvement in that massive fraud, and entered into a cooperation agreement with the Government...
Another Reason To Be Afraid Of Getting Locked Up
Posted on February 06, 2009United States v. Cracolici, No. 08-CR-76, 2009 WL 249369 (E.D.N.Y. Jan. 16, 2009)Cracolici pled guilty to participation in an extortion conspiracy. His advisory Guidelines offense level was 10 and criminal history category was I, yielding an advisory Guidelines range of...
The High Cost Of Violating A Cooperation Agreement
Posted on February 05, 2009United States v. Herrera, No. 04-CR-1093 (JBW), 2009 WL 230654 (E.D.N.Y. Jan. 30, 2009)Herrera pled guilty to a single-count indictment, charging a conspiracy to distribute and possess with intent to distribte heroin. He also entered into a cooperation agreement with...
Once A Weapon, Always A Weapon
Posted on February 03, 2009United States v. Pope, Docket No. 08-1007-cr (2d Cir. Feb. 3, 2009) (found here)What does it mean to possess a dangerous weapon mean for purposes of an enhancement under Section 2B2.1(b)(4) of the Guidelines? That is the question that the...
Attempted Burglary In The Third Degree (A Class E Felony) Is A Crime Of Violence Under The Guidelines?
Posted on February 02, 2009United States v. Hurell, Docket Nos. 06-5653-cr, 06-5718-cr, 07-0116-cr (2d Cir. Jan. 28, 2009) (found here)The Government appealed three judgments, each of which held that a prior conviction for burglary in the third degree under New York law and/or a...
We Mean It: The Guidelines Are Advisory
Posted on January 27, 2009Nelson v. United States, No. 08-5657, 2009 WL 160585 (Jan. 26, 2009)The Supreme Court is done pussyfooting around. As Doug Berman's Sentencing Law & Policy blog notes, the Court meant it when they said the Guidelines are advisory. Here's the...
Corporate Deferred Prosecution Agreements Under The Obama Administration
Posted on January 26, 2009There's an interesting article on Slate today by Jeff Horwitz, entitled "Almost Criminal: Will the Obama Administration Shy Away from Indicting Lawbreaking Companies?" Horwitz posits that:Now that the Bush Justice Department's top brass has decamped for the private sector, it...
Conditions Pre-Trial Detention As A Basis For A Non-Guidelines Sentence
Posted on January 26, 2009United States v. Guglielmo, No. 07-2368-cr (2d Cir. Jan. 26, 2009) (found here)Guglielmo argued that the district court erred in not considering the conditions of his pre-trial detention in sentencing him. The Second Circuit rejected the appeal, noting that "nothing...
Signed, Sealed, Delivered, But Not Yours
Posted on January 23, 2009Here's a link to my op-ed in today's edition of the Chicago Tribune entitled "Signed, Sealed, Delivered, But Not Yours." It argues that, in order to protect the constitutional legitimacy of any pardon issued by any president (including himself), President...
Reference Manual on Criminal Mental Health and Disability Law, Evidence and Testimony
Posted on January 22, 2009I received a notice from the ABA concerning a new publication entitled "Criminal Mental Health and Disability Law, Evidence and Testimony: A Comprehensive Reference Manual for Lawyer, Judges and Criminal Justice Practitioners." Here's the link to information about the publication...
Role Determination Based On Cooperating Witness' Say-So
Posted on January 19, 2009United States v. Scippio, No. 07-0480-cr (2d Cir. Jan. 15, 2009) Scippio argued on appeal that: (1) he was entitled to a minor role adjustment; and (2) the district court had failed to account for disparities between his sentence and...
No Consideration Of Post-Sentencing Conduct On Crosby Remand
Posted on January 19, 2009United States v. Sutherland, No. 07-0296-cr., 2009 WL 76514 (2d Cir. Jan. 13, 2009)Sutherland was the lucky recipient of a Crosby remand. But the district judge refused to consider his post-sentencing rehabilitation in resentencing him, finding that "there can be...
Wow! What A Variance!
Posted on January 19, 2009United States v. Dauria, No. 08-CR-76 (JBW), 2008 WL 5459197 (E.D.N.Y. Nov. 24, 2008)Maybe Judge Weinstein has a soft-spot for a woman arrested in connection with a February sweep of alleged Gambino organized crime family members. Or maybe he genuinely...
Infant Child = Low End Of Guidelines Range
Posted on January 19, 2009United States v. Outerie, Nos. 06-CR-815, 08-CR-76, 2008 WL 5459158 (E.D.N.Y. Dec. 24, 2008)Outerie's advisory Guidelines range was 33 to 41 months. Judge Weinstein imposed a sentence at the low end of the range (33 months) because the "defendant has...
Prison Not Appropriate For Rehabilitation?
Posted on January 19, 2009United States v. Perone, No. 08-0052-CR., 2009 WL 52070 (2d Cir. Jan. 9, 2009)Perone appealed his 60 month sentence, imposed notwithstanding an advisory Guidelines range of 18-24 months, as substantively unreasonable. Objectively, it seems like an awfully large percentage upward...
Exactly What Causes An Upward Departure In Criminal History Category?
Posted on January 19, 2009United States v. White, Docket No. 08-1180-cr., 2009 WL 50497 (2d Cir. Jan. 9, 2009)Q: Exactly what causes an upward departure in criminal history category?A. A whole lot of criminal history. For White, it involved convictions for twenty-one offenses, six...
Why Should Criminal History Impact Sentence Reduction For Cooperation?
Posted on January 19, 2009United States v. Tchiapchis, No. 07-5161-cr (2d Cir. Jan. 9, 2009)Tchiapchis pled guilty one count of conspiracy to distribute MDMA, and entered into a cooperation agreement with the Government. Although we don't know what sentence was imposed, we do know...
Serving Time For The Same Crime
Posted on January 09, 2009United States v. Armstrong, No. 07-CR-874 (JBW), 2008 WL 5459177 (E.D.N.Y. Dec. 22, 2008)This is interesting. Armstrong pled guilty to a serious offense -- he was "a member of a gang that disturbed the peace and threatened the safety of...
Hard Time Getting A Job In The Future? Non-Guidelines Sentence
Posted on January 09, 2009United States v. Remy, No. 07-CR-5 (JBW), 2008 WL 5458951 (E.D.N.Y. Dec. 24, 2008)Simple case. Remy pled guilty to one count of cocaine importation. His advisory Guidelines range was 30-37 months, although he qualified for a two level "safety valve"....
Adelson Affirmed
Posted on January 06, 2009United States v. Adelson, Nos. 06-2738-cr (L), 06-3179 (XAP) (2d Cir. Dec. 9, 2008) (found here)Sentence affirmed. Need I say more?As you'll recall, Judge Rakoff -- in a blistering opinion critical of the Guidelines -- sentenced Richard Adelson to 42...
Order to Immediately Pay Restitution in Full When Defendant Has No Ability to Pay Constitutes an Abuse of Discretion
Posted on January 05, 2009United States v. Mammedov, No. 06-2971-cr., 2008 WL 5411080 (2d Cir. Dec. 30, 2008)Notwithstanding his undisputed lack of financial resources and inability to pay, the district court in Mammedov failed to provide a restitution schedule for a $325,000 award of...
New Year, Fresh Start
Posted on January 04, 2009I'm back. And for those who have loyally read this blog and relied on the information it provided, rest assured that 2009 will bring the same timely posts that I've brought in the past few years -- information about all...
The Same Notice Rules Apply To Non-Guidelines Fines
Posted on March 19, 2008United States v. Elfgeeh, 515 F.3d 100 (2d Cir. 2008) In this post, we noted that a district court's failure to advise a defendant that it intended to impose an adverse non-Guidelines sentence constituted reversible error. Well, the same principles...
Crack Sentencing Reduction From 235 to 212 Months
Posted on March 19, 2008United States v. Wood, No. CR-88-0723 (CPS), 2008 WL 399253 (E.D.N.Y. Feb. 12, 2008) On September 12, 1989, Wood was sentenced to concurrent sentences of 235 months imprisonment for a narcotics charges, and a consecutive 60 month term of imprisonment...
Crack Sentencing Reduction From 62 to 60 Months
Posted on March 19, 2008United States v. Sosa, No. 03 Cr. 502 (JGK), 2008 WL 336472 (S.D.N.Y. Feb. 6, 2008) Simply story: Recalculation of Guidelines offense level after new crack Guidelines are applied results in reduction of sentence from 62 to 60 months. And,...
Multiple Sentencing Errors Lead To Remand
Posted on March 19, 2008United States v. DeMott, 513 F.3d 55 (2d Cir. 2008) In this post-Booker world, it's hard to believe that a district court could commit so many errors in one case -- so many, in fact, that even the Government conceded...
Supervised Release Conditions Related To Prior Criminal Conduct OK With Second Circuit
Posted on March 19, 2008United States v. Dupes, 513 F.3d 338 (2d Cir. 2008) Following a guilt plea to securities fraud and conspiracy to commit securities fraud, the court sentenced Dupes to 38 months incarceration and 3 years of supervised release. Among other things,...
Private Practice
Posted on March 19, 2008Setting up my own private practice has taken a toll on the time I've had available for blogging. But, I'm back on track now, and hope to fully catch up on all the Second Circuit action within the next week.
The Ethical Entrepreneur
Posted on February 04, 2008United States v. Alatsas, No. 06-CR-473 (JBW), 2008 WL 238559 (E.D.N.Y. Jan. 16, 2008) Notwithstanding a loss figure of $450,000 and an advisory Guidelines range of 24 to 30 months imprisonment, the Court imposed a probationary sentence based on: (1)...
Plea Agreements and Reasonable Waiver
Posted on January 29, 2008United States v. Abbadessa (Chinnici), No. 06-2398-cr (2d Cir. Jan. 29, 2007) (found here ) What terms did the plea agreement include such that Second Circuit wrote that "[a]s for his sentence, there is some doubt as to whether the...
Crack Remand for Consideration of Kimbrough and Gall
Posted on January 26, 2008United States v. Smith, No. 06-2815-cr (2d Cir. Jan. 24, 2008) Smith was sentenced to 188 months imprisonment for various crack offenses. Prior to sentencing, however, he had asked the court to take into account the disparities beween the Guidelines....
More Crack Retroactivity Action
Posted on January 22, 2008United States v. Wood, Nos. CR-88-0723 (CPS), CV-94-4652 (CPS), CV-96-2498 (CPS), CV-02-1678 (CPS), CV-06-2851 (CPS), 2008 WL 163694 (E.D.N.Y. Jan. 15, 2008) Wood was sentenced to 235 months for his narcotics conviction. On December 17, 2007 he filed a pro...
First Notice Of Intent To Resentence Based On The New Retroactive Crack Guidelines
Posted on January 19, 2008United States v. Polanco, No. 02 cr. 442-02 (GEL), 2008 WL 144825 (S.D.N.Y. Jan. 15, 2008) Maybe I've missed something, but Polanco seems to be the first revisiting of a crack sentence since the Sentencing Commission decided to apply the...
Establishing That A Victim Is, In Fact, Vulnerable
Posted on January 19, 2008United States v. Lee, No. 06-5043-cr (2d Cir. Jan. 18, 2008) (found here) On appeal, Lee claimed that the district court's sentence was procedurally unreasonable because it miscalculated the advisory Guidelines offense level. And the Second Circuit agreed because the...
Second Circuit Indicates How It Views Gall: Deep Deference
Posted on January 19, 2008United States v. Bowles, No. 06-4319-cr (2d Cir. Jan. 16, 2008) (found here) The court sentenced Bowles to 87 months imprisonment and lifetime supervised release notwithstanding an advisory Guidelines range of 2 to 3 years supervised release. Bowles then appealed,...
How Could This Have Happened?
Posted on January 19, 2008United States v. Day, Docket Nos. 05-4285-cr(L), 06-5737-cr(CON), 06-5820-cr(CON) (2d Cir. Jan. 15, 2008) (found here) Day's original sentence was reversed and remanded because the district court erroneously believed that the two minimum sentences for his narcotics convicted must run...
A Warning From The Second Circuit
Posted on January 15, 2008United States v. Whitley, No. 05-3359-cr (2d Cir. Jan. 15, 2007) (found here ) Whitley's attorney filed a motion to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967) on the ground that there are no non-frivolous grounds for...
Failure To Fulfill "Open Court" Requirement Not Plain Error
Posted on January 11, 2008United States v. Espinoza, Docket No. 05-0711-cr (2d Cir. Jan. 11, 2008) (found here ) The PSR included a 4 level role enhancement in Espinoza's advisory Guidelines range. At the sentencing hearing, his counsel asserted that no role enhancement should...
Non-Guidelines Sentences Based On Fast-Track Disparity Still Possible In The Second Circuit?
Posted on January 03, 2008United States v. Liriano-Blanco, Docket No. 06-2919-cr (Jan. 2, 2008) (found here) Liriano-Blanco pled guilty to illegal re-entry charges. The district court declined to impose a non-Guidelines sentence because it believed that it could not do so based on fast-track...
Procedural Error Where District Court Failed To Consider Role Enhancement
Posted on January 03, 2008United States v. Collazo, No. 06-5236-cr (2d Cir. Jan. 3, 2008) (found here) The Government appealed the district court's failure to apply a 3 level role enhancement pursuant to U.S.S.G. § 3B1.1(b). The Second Circuit found that, although the Guidelines...
First Crack Reasonableness Remand In The Second Circuit
Posted on January 03, 2008United States v. Johnson, No. 06-4001-cr (2d Cir. Jan. 3, 2008) (found here) Johnson is the first post-Kimbrough/Gall remand that I've seen on the question of whether a crack sentence was reasonable. Although the Second Circuit doesn't opine on the...
Government Crosses The Line And Breaches Plea Agreement
Posted on January 02, 2008United States v. Griffin, Docket No. 05-4016-cr (2d Cir. Dec. 21, 2007) An important case involving the circumstances under which the Government can be held to account for breaching a plea agreement. The Government agreed in Griffin's plea agreement "not...
Non-Guidelines Narcotics Sentence Based on Family Circumstances
Posted on January 01, 2008United States v. Aristizabal, No. 07-CR-101-01 (JBW), 2007 WL 4555900 (E.D.N.Y. Dec. 20, 2007) Yet another non-Guidelines sentence imposed by Judge Weinstein, the reasons for which were the following: "The offense is a serious one [distribution and possession with intent...
Reversal And Remand Where Government Breached Plea Agreement
Posted on December 17, 2007United States v. Turner, No. 06-0967-cr (2d Cir. Dec. 17, 2007) (found here) Turner went way off the tracks. He was sentenced to 240 months. But he requested, with the Government's consent, that his sentence be remanded to the district...
Reveral Where District Court Did Not Make Adequate Findings Concerning Nature, Severity And Likely Duration Of Injury
Posted on December 17, 2007United States v. Guang, et al., Docket Nos. 05-4724-cr(L), 05-6171-cr(CON), 2007 WL 4335556 (2d Cir. Dec. 13, 2007) Among other things, the district court increased the Guidelines offense level under Section 2B3.2(b)(4), which provides for an increase in offense level...
Short Involvement In Conspiracy Leads To Shorter Sentence
Posted on December 17, 2007United States v. Hurtado, No. 06-CR-741 (JBW), 2007 WL 4322972 (E.D.N.Y. Dec. 4, 2007) Hurtado's advisory Guidelines range was 46 to 57 months for his narcotics conspiracy. But the court sentenced him to 18 months incarceration. Several reasons relating to...
Hard Work Does Pay Off
Posted on December 17, 2007United States v. Rincon, No. 07-CR-44-01, 2007 WL 4322979 (JBW) (E.D.N.Y. Dec. 6, 2007) Rincon pled guilty to one count of possession with intent to distribute cocaine, an offense for which the Probation Department calculated an advisory Guidelines range of...
National Sentencing Statistics Not Relevant At Sentencing?
Posted on December 08, 2007United States v. Ganim, No. 03-1448-cr (2d Cir. Dec. 4, 2007) (found here) Ganim argued on appeal that, on remand, the district court erred in not reducing his 108 month Guidelines sentence "in light of the statistics he presented on...
Denial Of Acceptance Responsibility Affirmed
Posted on December 08, 2007United States v. Phillips, No. 06-0960-cr (2d Cir. Dec. 4, 2007) (found here) Phillips appealed (among other things) the district court's refusal to include a three-level reduction for his acceptance of responsibility. The Second Circuit found that the district court...
Audita Querela In The Second Circuit
Posted on December 08, 2007United States v. Richter, Docket No. 06-1930-cr (2d Cir. Dec. 4, 2007) (found here) In this post, I detailed Tobias v. United States, No. 3:06 CV 123 (DJS), 2006 WL 287197 (D. Conn. Feb. 7, 2006), in which the Court...
A New Twist On Consecutive Sentences
Posted on December 05, 2007The New York Times has this article today on the sentencing of a husband and wife (Jennifer Wang and Ruben Chen) team who pled guilty to insider trading. Judge McMahon of the Southern District of New York sentenced each to...
Major Relevant Conduct Decision By The Second Circuit
Posted on November 28, 2007United States v. Juwa, Docket No. 06-2716-cr (2d Cir. Nov. 28, 2007) (found here) Notwithstanding an advisory Guidelines range of 24-30 months for a guilty plea to one count of possession of child pornography, Juwa was sentenced to 90 months...
Family Circumstances And 18 U.S.C. § 3553(a)
Posted on November 26, 2007United States v. Zambrano, No. 07-CR-301 (JBW), 2007 WL 4115993 (E.D.N.Y. Nov. 20, 2007) Zambrano pled guilty to a single-count indictment charging that he was illegally present in the United States in violation of 8 U.S.C. §§ 1326(a) and 1326(b)(2)....
Imposing A Guidelines Sentence Does Not Relieve A Judge Of The Obligation To Provide A Rationale For The Sentence Imposed
Posted on November 25, 2007United States v. Baker, No. 05-4693-cr., 2007 WL 40006103 (2d Cir. Nov. 16, 2007) (found here) Baker is a rare remand of a Guidelines sentence because the district court made clear that it would only consider imposition of a Guidelines...
A District Court's Imposition Of A "Not Unreasonable" Sentence Does Not Mean It Failed To Fulfill Its Statutory Obligations Even Though Reasonableness Is An Appellate Standard
Posted on November 25, 2007United States v. Mendez, No. 06-2299-CR., 2007 WL 3407436 (2d Cir. Nov. 15, 2007) Reasonable or unreasonable. That is clearly the question after Booker. But it is not a question for the district court. It is solely a question for...
Send Me Back To Federal Prison!
Posted on November 25, 2007Unger v. United States, No. 02 CV 4240, 2007 WL 3353515 (E.D.N.Y. Nov. 9, 2007) Petitioner Ari Unger brings an unusual claim. He contends that he was incorrectly credited for time served toward his federal sentence and, as a result,...
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