United States v. Stinson, Docket No. 05-5336-cr (2d Cir. Sep. 26, 2006) (Winter, Cabranes, Pooler) (per curiam): This very short opinion clarifies that, post-Booker, litigants still cannot appeal from a district court’s discretionary refusal to depart (subject only to the “misapprehension of authority to depart” exception). Though this is well-settled law, e.g., United States v. … Read more

United States v. Rangolan, Docket No. 04-5126-cr (2d Cir. Sep. 21, 2006) (Calabresi, Parker, Wesley): Another great win by Ed Zas of this Office. The Circuit vacates on sufficiency grounds Rangolan’s criminal contempt conviction for violating 18 U.S.C. § 401(1), prohibiting “[m]isbehavior of any person in [the court’s] presence or so near thereto as to … Read more

United States v. Sloley, Docket No. 05-1748-cr (2d Cir. Sep. 15, 2006) (Walker, Cardamone, Sotomayor): This is an odd opinion that fails to answer what appears to be the central question on appeal: Whether the Government may refuse to move for the 3rd acceptance point, under U.S.S.G. § 3E1.1(b), for reasons other than the timeliness … Read more

Taveras v. Smith, Docket No. 05-5579-pr (2d Cir. Sep. 11, 2006) (Cardamone, Calabresi, Pooler): This decision answers a very narrow question: May the New York State Appellate Division — the state’s first-tier, “as of right” appellate court — exercise its discretion to dismiss, on fugitive disentitlement grounds, the appeal of an apparently indigent defendant without … Read more

United States v. Gregg, Docket No. 03-1229-cr (2d Cir. Sep. 12, 2006) (Feinberg, Sotomayor, Hall) (per curiam): This decision nicely explains the meaning and consequences of a guilty plea for subsequent proceedings arising from the same incident. The Court correctly rejects the district court’s broad-brush ruling that Gregg’s guilty plea in state court to a … Read more

United States v. McCargo, Docket No. 05-4026-cr (L) (2d Cir. Sep. 13, 2006) (Walker, Jacobs, Wallace): This is a terrible Fourth Amendment decision, even accounting for the general awfulness of the Circuit’s jurisprudence in this area. (Disclosure: Darrell Fields of this Office, on behalf of this and other FPD offices in the Second Circuit, submitted … Read more

United States v. Muhammad, Docket No. 05-4923-cr (Miner, Wesley, Swaine): This minor opinion upholds a Terry stop justified by (1) an anonymous 911 call describing someone fitting the defendant’s appearance and location as carrying a gun, and (2) the defendant’s (supposed) “headlong flight” when the police car approached him. Although the tip alone would have … Read more

United States v. Snow et al., Docket No. 05-0968-cr (L) (2d Cir. Sep. 1, 2006) (Jacobs, Pooler, Gibson): Nothing of interest to non-parties in this fact-based opinion affirming the conviction and sentence of three defendants for various crack and gun-related offenses. The sole point worth mention concerns whether the evidence was sufficient to convict one … Read more

United States v. Noel Davila, Docket No. 05-2545-cr (2d Cir. Aug. 30, 2006) (Leval, Parker, Sessions): Any opinion that references the severed-horse’s-head-in-bed scene from “The Godfather” is a worthy read. Here, the Circuit principally rejects Davila’s argument that the two statutes under which he was convicted, 18 U.S.C. § 2232a and § 876(c), criminalize only … Read more

United States v. Olmeda, Docket No. 05-4331-cr (2d Cir. Aug. 29, 2006) (Cabranes, Sotomayor, Raggi): This is a fact-intensive opinion dismissing on Double Jeopardy grounds an SDNY indictment (for a § 922(g) violation) that followed upon Olmeda’s guilty plea to an earlier North Carolina indictment that also charged a § 922(g) offense. The earlier indictment … Read more