In United States v. Lee, 15-458, the Second Circuit affirmed a conviction under 18 U.S.C. 641 and the 30-month sentence that followed. Relying in part on Apprendi, the Court concluded that a loss amount in excess of $1000 is an element of a felony offense under Section 641 and that, to allege a felony, the … Read more
Portolatin v. Graham, No. 07-1599-pr (2d Cir. October 18, 2010) (en banc) Earlier this year, a Second Circuit panel held that New York’s persistent felony offender (PFO) statute violated the right to a jury trial under Apprendi. See The Persistents of Apprendi, posted April 9, 2010. In this en banc opinion, authored by Judge Wesley, … Read more
United States v. Pfaff, No. 09-1702-cr (2d Cir. August 27, 2010)(Jacobs, Winter, McLaughlin, CJJ) (per curiam) Apprendi rears its head once again in this latest per curiam, this time with respect to a fine. A jury convicted John Larson, one of the defendants in the KPMG tax shelter case, of twelve counts of tax evasion … Read more
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. The decision involves five separate cases heard “in tandem,” which is what the circuit calls … Read more
United States v. Confredo, No. 06-3201-cr (2d Cir. June 10, 2008) (Newman, Winter, Parker, CJJ) This case takes on the difficult question of fixing the loss amount under the sentencing guidelines when the case involves fraudulently obtained that loans have been partially repaid. It also addresses an interesting Apprendi claim. 1. The Loss Amount Defendant … Read more