LoCascio v. United States, Docket No. 05-6761-pr (2d Cir. Jan. 9, 2007) (Cardamone, Straub, Koeltl) (per curiam): There is little of interest in this fact-specific opinion, which principally rejects LoCascio’s (the co-defendant of the senior John Gotti, RIP) motion to recuse Judge Glasser from deciding his § 2255 petition (based principally on a claim that … Read more

United States v. McGriff, Docket No. 06-2014-cr (2d Cir. Jan. 5, 2007) (Parker, Wesley, Hall): In a matter of first impression in this Circuit, the Court holds here that a district court’s denial of the defendant’s motion to strike the Government’s death notice for untimeliness under 18 U.S.C. § 3593(a) is not immediately appealable under … Read more

United States v. Moreno-Rivera, Docket No. 05-5760-cr (2d Cir. Dec. 22, 2006) (Cabranes, Sack, Hall) (per curiam): In United States v. Fuller, 332 F.3d 60 (2d Cir. 2003), the defendant claimed, as Moreno-Rivera does in this appeal, that his attorney failed to follow his explicit instruction to file a notice of appeal, resulting in the … Read more

United States v. Daidone, Docket No. 04-3784-cr (2d Cir. Dec. 15, 2006) (Newman, McLaughlin, Hall) (per curiam): This opinion does not appear to break new ground, but simply confirms that in a RICO prosecution, proof of “horizontal relatedness” between the alleged predicate acts — i.e., proof that the predicates are related to each other — … Read more

United States v. Gilmore, Docket No. 05-6195-cr (2d Cir. Dec. 8, 2006) (Miner, Pooler, Katzmann) (per curiam): In United States v. Anati, 457 F.3d 233 (2d Cir. 2006), the Circuit held that a district court must give reasonable notice of its intent to exceed the advisory Guidelines range (via consideration of the § 3553(a) factors) … Read more

The Supreme Court ruled yesterday in Lopez v. Gonzales that a state felony conviction for simple drug possession does not qualify as an “aggravated felony” for purposes of the Immigration and Nationality Act. And although the Court had granted cert. in a companion case involving the same interpretive question but in the Sentencing Guidelines context, … Read more

United States v. Acosta, Docket No. 05-3346-cr (L) (2d Cir. Nov. 30, 2006) (Jacobs, Parker, Oberdorfer) (per curiam): This short opinion holds that convictions under (1) the second clause of 18 U.S.C. § 242 (violating someone’s civil rights when either “bodily injury results” or involved “the use, attempted use, or threatened use of a dangerous … Read more

United States v. Ministro-Tapia, Docket No. 05-5101-cr (2d Cir. Nov. 28, 2006) (Walker, Leval, Raggi): The Parsimony Clause is alive in the Second Circuit! See 18 U.S.C. § 3553(a) (“The district court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of [§ 3553(a)].”). … Read more

United States v. Parker, Docket No. 05-6991-cr (2d Cir. Nov. 14, 2006) (Cabranes, Sotomayor, Raggi): This opinion does not break new legal ground, but is nonetheless of interest in highlighting the disparate treatment of defendants who can afford retained counsel and defendants who cannot. The contrast between (1) the Circuit’s easy affirmance here of the … Read more

United States v. Pressley, Docket No. 05-2487-cr (L) (2d Cir. Nov. 14, 2006) (Cardamone, Walker, Straub) (per curiam): In United States v. Harrison, 241 F.3d 289 (2d Cir. 2001), the Circuit ruled that where a defendant is convicted of two or more separate substantive counts of drug distribution, in violation of 21 U.S.C. § 841(a), … Read more