In United States v. Byrd, the Second Circuit affirmed a sentence despite the District Court finding an applicable guideline range different from the one agreed to by the parties in a written plea agreement. The Circuit held that although “district courts have the discretion to give effect to Guidelines calculations in plea agreements that result … Read more
In an opinion written by Judge Newman, the Second Circuit today vacated the defendants’ sentences of 30 and 21 months, respectively, for food stamp fraud for the district court to consider imposing non-guideline sentences on the ground that the defendants’ Guidelines ranges were significantly increased by the loss enhancements, an unusual feature of the Guideline … Read more
Last week, the Second Circuit vacated the sentence in United States v. Bennett, No. 15-0024 (“Opinion”). The Court held that, in order to justify the 5-level enhancement under U.S.S.G. 2G2.2(b)(3)(B) for distribution of child pornography “for the receipt, or expectation of receipt, of a thing of value,” “the Government must advance specific, individualized evidence that … Read more
Only one summary order from the Circuit today in the criminal realm: In United States v. Jeremy Viles, Docket No. 15-885-cr, the Court (Livingston, Carney, Stanceu), rejected the defendant’s claim that he should be allowed to withdraw his guilty plea based on then-counsel’s allegedly erroneous advice regarding the advisory Guidelines range he would face at … Read more
There were no published opinions today. In an unpublished opinion, United States v. Fernandini, No. 14-2203, the Second Circuit affirmed a within-Guidelines life sentence for the leader of a violent drug trafficking organization over procedural and substantive reasonableness challenges. Fernandini pleaded guilty to (i) conspiracy to traffic narcotics; (ii) using a firearm to commit murder … Read more
This seems like a good way to end the week: In United States v. Pawlak, the Sixth Circuit today held that Johnson applies to the Guidelines. You can read a copy of the opinion here. Have a nice weekend.
In United States v. Rendsland, Docket No. 14-3942-cr, a summary order issued today, the Circuit ruled that the district court committed plain error in relying on U.S.S.G. § 2A2.2 (“Aggravated Assault”) to calculate Mr. Rendsland’s Guideline range, rather than § 2A2.4 (“Obstructing or Impeding Officers”), even though the parties had stipulated that this was the … Read more
After this week’s Supreme Court decision in Welch v. United States, — S. Ct. –, slip op. (April 18, 2016) (No. 15-6418), which found that Johnson v. United States, 135 S. Ct. 2551 (2015) is retroactive to those serving Armed Career Criminal sentences, the next big question is whether the rule in Johnson will apply … Read more
There were no opinions in criminal cases from the Circuit this day. The Circuit issued a single summary affirmance in United States v. Miller, No.15-108-cr, where it rejected the defendant’s claim that his 144-month – but nevertheless below-Guidelines – sentence was substantively unreasonable. United States v. Miller, No.15-108-cr: Miller was convicted of a drug distribution … Read more
United States v. Hargrove, No. 06-4276-cr (2d Cir. August 16, 2007) (Feinberg, Calabresi, Wesley, CJJ). Terrence Altman had pled guilty to a drug misdemeanor (yes, there are drug misdemeanors), but violated his supervised release by using cocaine. While awaiting sentencing on that violation, he tested positive again. He admitted to that violation as well and, … Read more