Sentencing Decisions of the Second Circuit 2001

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Sentencing Decisions of the Second Circuit

A comprehensive list of all Second Circuit sentencing decisions from January 2001, reported and unreported, updated each month.

Topics covered to date

Aberrant Conduct
Abuse of Trust
Acceptance of Responsibility
Accessory After the Fact
Adequacy of Criminal History
Adjustments
Aggravating Role
Antitrust Offenses
Applicable Guidelines
Bribery
Career Offender
Child Abuse
Commission of Offense on Release
Computing Criminal History
Consent to Deportation
Criminal History Category
Denial of Adjournment
Denial of Psychiatric Evaluation
Determining the Sentence

Diminished Capacity
Disparities among districts
Downward Departures
Duplicity
Extraordinary efforts to Overcome Poverty
Extraordinary Family Circumstances
False Statements
First Degree Murder
Fraud: Loss
Grouping
Illegal Reentry
Imposing Imprisonment
Ineffective Assistance
Mitigating Role
Money Laundering
Multiple Counts
Narcotics

Obstruction of Justice
Offense Conduct
Offense While on Release
Pretrial Confinement
Rehabilitation
Relevant Conduct
Resentencing De Novo
Restitution
Safety Valve
Sentencing Procedures
Supervised Release and Probation
Theft
Undischarged Sentence
Upward Departures
Use of Firearms
Version of Guidelines
Violation of Supervised Release
Vulnerable Victim

OFFENSE CONDUCT

§ 1B1.2: Applicable Guidelines

United States v. Ben Zvi, 242 F.3d 89 [March 6, 2001]
(Walker opinion; joined by Marrero, concurrence by Van Graafeiland)

Pursuant to U.S.S.G. § 1B1.2(d), the district court treated acts of wire fraud, domestic money laundering and international money laundering as separate conspiracy acts, and then applied the grouping rules to yield an adjusted offense level of 26. Defendant argued that the district court should not have used the time-barred money laundering objects in applying § 1B1.2(d). The Second Circuit dismissed defendant's challenge as moot, as she was no longer incarcerated. The Court rejected defendant's argument that the length of her sentence might have collateral effects on future immigration proceedings.

§ 1B1.3: Relevant Conduct

United States v. White, 240 F.3d 127 [Feb. 13, 2001]
(Katzmann opinion; joined by Sack, Sotomayor)

The Second Circuit rejected defendant's argument that Apprendi v. New Jersey, 530 U.S. 466 (2000) prohibited the district court from relying upon relevant conduct as defined by U.S.S.G. § 1B1.3, because it resulted in effectively increasing defendant's sentence based on facts not found to have been proven beyond a reasonable doubt by a jury. The defendant further argued that even if relevant conduct need not be found by a jury, the district court should be required to determine them by a higher standard of proof than a preponderance of the evidence. The Court declined to "read Apprendi so broadly" because to do so "would be to eviscerate the Sentencing Guidelines, despite the Court's explicit statement that '[t]he Guidelines are, of course, not before the Court.'" The Court further held that Apprendi does not alter the Court's prior holding that a preponderance of the evidence is the appropriate standard to be used in considering uncharged relevant conduct for sentencing purposes. See United States v. Cordoba-Murgas, 233 F.3d 704, 708-09 (2d Cir. 2000).

The defendant also argued that the district court's comment at sentencing that it had "no leeway" to depart from the 240 year sentence it imposed indicated that it did not understand its authority to depart. The Second Circuit agreed and remanded for resentencing noting that where findings made by the court as to uncharged relevant conduct substantially increase the defendant's sentence, the sentencing court has authority to depart. See United States v. Cordoba-Murgas, 233 F.3d 704, 709 (2d Cir. 2000).

United States v. Fuller, ___ F.3d ___ [2001 WL 224072; March 7, 2001]
(Summary Order; Kearse, McLaughlin, Straub)

Defendants argued that the district court erred in calculating their sentences based on the total valued of all of the stolen cars involved in the conspiracy, rather than just the cars each of them stole. The Second Circuit disagreed, noting that the defendants' offense levels should be calculated based on all reasonably foreseeable acts in furtherance of the conspiracy. The Court also rejected defendants' arguments that under Apprendi v. New Jersey, 530 U.S. 466 (2000), they were entitled to have the value of the vehicles used to calculate their sentences determined beyond a reasonable doubt by a jury. The Court stated that since the sentences imposed were below the statutory maximum, and the value of the stole cars did not trigger a mandatory minimum, the value was a question properly decided by the sentencing judge, and not by a jury.

§ 2A1.1: First Degree Murder

Ferranti v. United States, F.3d ___ [2001 WL 273827; March 20, 2001]
(Summary Order; Jacobs, Calabresi, Arterton)

The Second Circuit rejected the defendant's argument that under Apprendi v. New Jersey, 530 U.S. 466 (2000), it was error for the district court to determine the degree of homicide under section 2A of the Sentencing Guidelines. The court reasoned that the sentence was based on a factor found by the jury beyond a reasonable doubt (that the arson defendant was convicted of resulted in death) and was not in excess of the relevant statutory maximum.

United States v Velazquez,___F.3d___[2001 WL 363470; April 12, 2001]
(Newman opinion; joined by Cabranes, Straub)

The defendant-prison guards were convicted of civil rights violations where they beat a prisoner to death. The defendants argued that the court erred in finding that the most applicable offense was voluntary manslaughter, rather than involuntary manslaughter or minor assault. The government, though not cross-appealing, agreed that the applicable offense was not voluntary manslaughter, but claimed it was second degree murder. Because the judge's findings about heat and passion and malice were ambiguous, the Second Circuit remanded. Notably, the Circuit did not resolve whether or not a higher sentence could not be imposed in light of the absence of a cross-appeal, reasoning that the question might ultimately be academic. In light of the risk of a higher sentence, though, the court gave the defendants an opportunity to withdraw the appeal.

Further, based upon Apprendi, the Second Circuit determined that the sentence of one of the defendants, convicted as an accessory, exceeded the maximum that could be imposed without a jury determination as to the cause of death. Accordingly, after the other issues were resolved, the court directed that the defendant's sentence be reduced by four months, to remedy the Apprendi problem.

Jamison v. United States, ___ F.3d ___ [2001 WL 179072; Feb. 20, 2001]
(Summary Order; Van Graafeiland, Kearse, Leval)

Defendant argued that his trial counsel was ineffective for failing to argue that he should be sentenced under U.S.S.G. § 2A1.2 (second degree murder), resulting in a base offense level of 33, rather than § 2A1.1 (first degree murder), resulting in a base offense level of 43, because the most serious predicate act for defendant's RICO conviction was the state-law offense of second degree murder. In an affidavit, defendant's trial attorney admitted that he was not aware his client was being sentenced under the Guidelines for first degree murder. The Second Circuit found that the attorney's performance fell below an objective standard of reasonableness, but stated that defendant failed to show that his counsel's failure resulted in prejudice because the district court was free to treat the state second degree murder as a federal first degree murder under the Guidelines. However, because the district court had erroneously stated that it was bound by United States v. Minicone, 960 F.2d 1099 (2d Cir.), cert. denied 503 U.S. 950 (1992) to apply the Guideline provision for first degree murder, the Second Circuit sent the case back to the district court for clarification.

§ 2B1.1: Theft

United States v. Rosario, F.3d ___ [2001 WL 224071; March 7, 2001]
(Summary Order; Kearse, McLaughlin, Straub)

The Second Circuit upheld a four-level increase in defendant's offense level pursuant to U.S.S.G. § 2B1.1(b)(4)(B) on the basis that he was in the business of buying and selling stolen property. There was evidence in the record that the defendant dealt with about two stolen cars a week for most of a year.

§ 2C1.1: Bribery

United States v. Arshad, 239 F.3d 276 [Feb. 2, 2001]
(Sack opinion; joined by Newman, Winter)

The Court rejected the defendant's argument that a two-level enhancement based on his payment or more than one bribe, pursuant to U.S.S.G. § 2C1.1(b)(1), was improper since the separate payments were actually "installment" of a single bribe. The Court agreed with the district court's finding that the defendant had made discrete payments to obtain three distinct actions, and thus the payments were not installment payments for a single action.

§ 2D1.1: Narcotics

United States v Williams, ___F.3d___[2001 WL 391985; April 18, 2001]
(Calabresi opinion; joined by Jacobs, Arterton)

The Second Circuit held that, where there is no conspiracy at issue, drugs intended solely for personal use are not part of a scheme or plan to distribute those drugs and, consequently, must be excluded from a finding of drug quantity under 21 U.S.C. § 841. Accordingly, the matter was remanded to clarify what quantity of drugs was relevant to the conviction.

United States v. Breen, 243 F.3d 591 [March 16, 2001]
(Feinberg opinion; joined by Parker, Covello)

Defendant argued that the Supreme Court' decision in Apprendi v. New Jersey, 530 U.S. 466 (2000) required the jury to determine beyond a reasonable doubt the quantity of narcotics on which his sentence was based under the Guidelines. The Second Circuit held that a guideline factor, unrelated to a sentence above a statutory maximum or to a mandatory statutory minimum, may be determined by a sentencing judge and need not be submitted to a jury.

United States v. White, 240 F.3d 127 [Feb. 13, 2001]
(Katzmann opinion; joined by Sack, Sotomayor)

The Second Circuit decided that it need not consider defendant's argument that Apprendi v. New Jersey, 530 U.S. 466 (2000) requires that the amount of drugs attributed to the defendant must be found by a jury because in this case, defendant entered into a stipulation regarding the type and quantity of drugs involved in three charged transactions.

United States v Bermudez, ___F.3d___[2001 WL 409442; April 20, 2001]
(Summary Order; Miner, Sack, Raggi)

Because the defendant's sentence was based upon the same guideline calculation, regardless of whether his case fell within section 841(b)(1)(A), (B) or (C), and was well within the 20-year maximum, the Second Circuit held that "it was entirely appropriate for Judge Mukasey to determine the applicable drug quantity guideline by a preponderance of the evidence." In addition, the court rejected defendant's argument that the factual finding as to the amount was clearly erroneous.

United States v Bacote, ___F.3d___[2001 WL 393705; April 18, 2001]
(Summary Order; McLaughlin, Calabresi, Pooler)

The Second Circuit agreed that, even if two amendments to the guidelines concerning cocaine were retroactively applicable, they did not provide a basis to reduce the defendant's sentence. The court emphasized that the defendant had admitted to selling crack during his plea. Further, the Second Circuit said that the defendant's Apprendi claim was not properly brought pursuant to 18 U.S.C. § 3582(c)(2), which permits courts to modify sentences where a sentencing range has subsequently been lowered by the Sentencing Commission,

United States v Pitcher, ___F.3d___[April 10, 2001]
(Summary Order; Oakes, Jacobs, Parker)

The defendant argued that, since he was involved minimally in the conspiracy and believed that drugs other than heroin were involved, the court should have sentence him on the basis of the lowest quantity of narcotics. The Second Circuit held that the district court's decision to take into account the entire amount of heroin was proper.

Sanders v. United States, 242 F.3d 367 [2001 WL 25702; Jan. 11, 2001]
(Summary Order; Van Graafeiland, Winter, Sotomayor)

In an attempt to vacate his sentence pursuant to 28 U.S.C. § 2255, the defendant argued that the government did not satisfy its burden of proving that the substance he possessed was crack cocaine, justifying application of that penalty provision in U.S.S.G. § 2D1.1. As defendant failed to raise this issue on direct appeal, he had to show a complete miscarriage of justice, which the Second Circuit decided he did not do. Defendant claimed that the evidence was lacking because there was no evidence that the cocaine base contained sodium bicarbonate.

United States v. Cambrelen, ___ F.3d ___ [2001 WL 219285; March 6, 2001]
(Summary Order; Oakes, Kearse, Korman)

Defendant argued that Apprendi v. New Jersey, 530 U.S. 466 (2000) requires that the jury should have determined beyond a reasonable doubt the quantity of narcotics on which his sentence was based under the Guidelines. The Second Circuit held that a guideline factor, unrelated to a sentence above a statutory maximum or to a mandatory statutory minimum, may be determined by a sentencing judge and need not be submitted to a jury.

United States v. Chin, 242 F.3d 368 [2001 WL 40760; Jan. 10, 2001]
(Summary Order; Oakes, Cardamone, Parker)

The Second Circuit found, without discussion, no clear error as to the district court's determination of the quantity of drugs attributed to the defendant.

United States v. Garner, 242 F.3d 368 [2001 WL 46822; Jan. 18, 2001]
(Summary Order; Sack, Sotomayor, Katzmann)

The defendant challenged the district court's determination that, in addition to the 80 grams of crack cocaine seized by government agents, at least 70 additional grams were attributable to him based, in part, on recorded statements he made to an undercover agent. The Second Circuit found that the record, which included evidence of the capacity of the drug laboratory found in defendant's home, supported the calculations.

United States v. Guzman, F.3d ___ [2001 WL 194306; Feb. 26, 2001]
(Summary Order; Van Graafeiland, Kearse, Leval)

Defendant argued that Apprendi v. New Jersey, 530 U.S. 466 (2000) requires that the jury should have determined the narcotics quantity for purposes of applying the Sentencing Guidelines. The Second Circuit disagreed for two reasons. First, the calculation of defendant's criminal history category was based on his prior convictions and Apprendi states that findings as to prior convictions need not be made by a jury. Second, the Court relied on its recent opinion in United States v. Garcia, 240 F.3d 180 (2d Cir. 2001) which held that a sentencing fact that affects only the defendant's Guidelines sentencing range within a statutory maximum, but has no bearing on increasing a sentencing above a statutorily specified maximum or on triggering a mandatory statutory minimum, may be determined by a sentencing judge and need not be submitted to a jury.

United States v. Kelly, F.3d ___ [2001 WL 99508; Feb. 6, 2001]
(Summary Order; Walker, Oakes, Parker)

Defendant argued that drugs found in a vestibule where he was arrested ten days after his arrest should not have been attributed to him for sentencing purposes. The Second Circuit held that the district court's finding was not clearly erroneous. Further, the Court held that any error would have been harmless because the defendant's sentence on the drug conspiracy was to run concurrently with another charge which the defendant did not contest on appeal. The district court had also indicated on the record that even if its drug quantity calculation were reversed on appeal, on remand it would depart to impose the same sentence.

United States v. Reyes, F.3d ___ [2001 WL 194359; Feb. 26, 2001]
(Summary Order; Walker, Kearse, Cardamone)

Defendant argued pro se that the Supreme Court' decision in Apprendi v. New Jersey, 530 U.S. 466 (2000) required the jury to determine beyond a reasonable doubt the quantity of cocaine on which his sentence was based under the Guidelines. The Second Circuit held that a guideline factor, unrelated to a sentence above a statutory maximum or to a mandatory statutory minimum, may be determined by a sentencing judge and need not be submitted to a jury.

§ 2F1.1(b)(1): Fraud: Loss

United States v Kim, ___F.3d___[2001 WL 356792; April 10, 2001]
(Oakes opinion; joined by Kearse, Winter)

In an opinion devoted largely to other issues, the Second Circuit summarily rejected the defendant's argument that the court erred in calculating the offense level by including losses incurred before certain wire fraud occurred.

United States v. Garcia, 240 F.3d 180 [Feb. 20, 2001]
(Newman opinion; joined by Leval, Sack)

Defendant argued that Apprendi v. New Jersey, 530 U.S. 466 (2000) required the jury should to determine the amount of loss for purposes of applying the Sentencing Guidelines. The Second Circuit limited the issue to whether a jury must find a sentencing fact that affects only the defendant's Guidelines sentencing range within a statutory maximum, but has no bearing on increasing a sentencing above a statutorily specified maximum or on triggering a mandatory statutory minimum. The Second Circuit joined the nine other circuits that have ruled that a guideline factor, unrelated to a sentence above a statutory maximum or to a mandatory statutory minimum, may be determined by a sentencing judge and need not be submitted to a jury.

United States v. Almonte, ___ F.3d ___ [2001 WL 170424; Feb. 20, 2001]
(Summary Order; Newman, Leval, Sack)

Defendant argued that the district court erred in applying the fraud loss table of U.S.S.G. § 2F1.1(b)(1). Based upon Application Note 8(d) which provides that in cases involving diversion of government program benefits, loss is the value of the benefits diverted from intended recipients or uses, the defendant argued that there was no diversion of benefits because the food stamps he improperly redeemed were obtained from merchants who had sold eligible food in exchange for the food stamps, but were unauthorized to do so. The Second Circuit rejected defendant's argument, stating that the record showed that the stamps redeemed by the defendant were acquired by the sale of unauthorized items, including beer and soda.

The Court also rejected defendant's argument that the district court erred in relying on the defendant's estimated food sales set forth in a food stamp application by the defendant's bodega as the basis for estimating the amount of the defendant's proper intake of stamps. The Court found that to be a reasonable estimate of the amount of loss. And the Court rejected defendant's contention that the district court erroneously attributed to him his brother's sale of stamps. The evidence revealed a conspiratorial relationship.

United States v. Boyd, 242 F.3d 368 [2001 WL 40781; Jan. 16, 2001]
(Summary Order; Feinberg; Sotomayor; Haight)

The Second Circuit affirmed the district court's method of calculating loss for the defendants' fraudulent scheme of selling gems that were worth significantly less than they claimed. The district court adopted the government's expert testimony that the gems were worth approximately ten percent or less than the price paid by the victims, and thus the loss was the difference between the sale price and the actual worth. The Second Circuit also found that it was not error for the district court to use the conversion rate used by defendants in order to convert Canadian dollars into American dollars.

United States v. Confredo, 242 F.3d 368 [2001 WL 38246; Jan. 12, 2001]
(Summary Order; Feinberg; Sotomayor, Haight)

Because the Second Circuit remanded for resentencing for other reasons, and because the record was not clear as to whether the district court had considered defendant's objections to the district court's loss calculation, the Second Circuit instructed the district court to explicate defendant's loss calculation arguments on remand.

United States v. Hochevar, F.3d ___ [2001 WL 266299; March 16, 2001]
(Summary Order; Meskill, Parker, Katzmann)

Rejecting defendant's argument, the Second Circuit found that the district court made a reasonable estimate of the loss attributable to the defendant given the available information.

United States v. Mendoza, F.3d ___ [2001 WL 179931; Feb. 21, 2001]
(Summary Order; Van Graafeiland, Calabresi, Sotomayor)

Defendant argued pro se that the district court erred in calculating the amount of loss attributable to him because it included an amount at issue in a related New Jersey case. The Second Circuit found that the defendant waived any appeal of this issue by conceding, prior to sentencing, that the amount the court was relying on was correct. The defendant also argued that the amount was incorrect because it reflected the actual amount of money he fraudulently withdrew from a financial institution, rather than the amount he intended to withdraw, which was $80,000 less. The Second Circuit disagreed, noting that "loss" means the value of the property taken, not the intended loss, unless the intended loss is greater than the actual loss. See U.S.S.G. § 2F1.1, cmt. n.8.

United States v. Nachamie, F.3d ___ [2001 WL 266349; March 19, 2001]
(Summary Order; Straub, Pooler, Mukasey)

Defendant argued that the Supreme Court' decision in Apprendi v. New Jersey, 530 U.S. 466 (2000) requires that the jury should have determined the amount of defendant's fraud loss for purposes of applying the Sentencing Guidelines. The Second Circuit disagreed, citing its recent opinion in United States v. Garcia, 240 F.3d 180 (2d. Cir. 2001), which held that Apprendi does not require a jury determination beyond a reasonable doubt as to a sentencing factor that does not raise a sentence beyond the statutory maximum. The Second Circuit further rejected, without discussion, the defendant's argument that the district court should have applied a heightened burden of proof concerning los and, regardless, lacked sufficient evidence to calculate the amount of intended loss.

§ 2J1.2: False Statements

United States v. Kurtz, 237 F.3d 154 [Jan. 3, 2001]
(Per Curiam; Oakes, Kearse, Korman)

Defendant, who was convicted of making false statements in violation of 18 U.S.C. § 1001, argued that the district court erred in applying U.S.S.G. § 2J1.2, rather than § 2F1.1. Appendix A to the guidelines designates § 2F1.1 as the appropriate guideline for a conviction under 18 U.S.C. § 1001. When defendant was sentenced, Appendix A provided that "if, in an atypical case, the guideline section indicated for the statute of conviction is inappropriate because of the particular conduct involved, use the guideline section most applicable to the nature of the offense conduct charged in the count of which the defendant was convicted." As of November, 2000, after defendant was sentenced, that language was deleted. Defendant argued that this deletion signified that the court was required to apply only the guideline listed in Appendix A. The Second Circuit disagreed and stated that even if that were true, the district court was authorized to use § 2J1.2 rather than 2F1.1 by the language in 2F1.1, which states that if the offense is "more aptly covered by another guideline, apply that guideline rather than § 2F1.1."

§ 2J1.7: Commission of Offense While on Release

United States v. Confredo, 242 F.3d 368 [2001 WL 38246; Jan. 12, 2001]
(Summary Order; Feinberg; Sotomayor, Haight)

The Second Circuit vacated and remanded for resentencing because the district court failed to apportion defendant's sentence, as required by U.S.S.G. § 2J1.7, between the sentence for the underlying offense and the sentence for the enhancement for having committed the underlying offense while on release. Further, it was unclear from the district court's oral and written judgments, whether the sentence was 230 months or 262 months.

§ 2K2.4: Use of Firearms

United States v Finley, ___F.3d___[2001 WL 332685; April 5, 2001]
(Feinberg opinion; joined by Leval, Winter dissenting)

Based upon the mandatory consecutive sentence requirement for a second violation of § 924(c)(1), the defendant received a sentence of 477 months. The two violations were based upon using a gun both in connection with possession with intent to distribute, and actual distribution. But the possession was continuous. The court reversed the second firearm conviction, reasoning that Congress did not intend the phrase "a second or subsequent conviction" to secure a mandatory 25-year sentence where the two criminal transactions were "so inseparably intertwined."

§ 2L1.2: Illegal Reentry

United States v. Barnes, 244 F.3d 331 [March 27, 2001]
(Per Curiam; Jacobs, Straub, Pooler)

Defendant argued that under Apprendi v. New Jersey, 120 S.Ct. 2348 (2000), the language of 8 U.S.C. § 1326(b), which authorizes a prison term of up to 20 years for a person whose deportation was subsequent to a conviction of an aggravated felony, must be construed as setting out an offense distinct from that set out in § 1326(a), which does not mention prior convictions and limits the term of imprisonment to two years. As defendant's indictment did not allege his prior conviction, defendant argued that it set forth only the elements of § 1326(a), and thus he should not have been sentenced to more than two years. The Second Circuit disagreed, noting that they rejected that very argument in their recent opinion in United States v. Latorre-Benavides, 241 F.3d 262 (2d Cir. 2001).

United States v. Latorre-Benavides, 241 F.3d 262 [Feb. 26, 2001]
(Per Curiam; Kearse, Jacobs, Cabranes)

Defendant argued that under Apprendi v. New Jersey, 120 S.Ct. 2348 (2000), the language of 8 U.S.C. § 1326(b), which authorizes a prison term of up to 20 years for a person whose deportation was subsequent to a conviction of an aggravated felony, must be construed as setting out an offense distinct from that set out in § 1326(a), which does not mention prior convictions and limits the term of imprisonment to two years. As defendant's indictment did not allege his prior conviction, defendant argued that it set forth only the elements of § 1326(a), and thus he should not have been sentenced to more than two years. Following Almendarez-Torres v. United States, 523 U.S. 224 (1998), the Second Circuit stated that § 1326(b) does not set out a separate offense but rather is a penalty provision with respect to a violation of § 1326(a).

United States v Garcia, ___F.3d___[2001 WL 431472; April 25, 2001]
(Summary Order; Parker, Sack, Stein)

The Second Circuit reaffirmed that a prior state court conviction, which the State defines as a felony, constitutes a prior conviction "for an aggravated felony" for purposes of the guidelines, even if that crime would not constitute a federal felony. Thus, the court properly imposed the 16-level enhancement pursuant to § 2L1.2(b)(2).

United States v. Artega, F.3d ___ [2001 WL 266321; March 19, 2001]
(Summary Order; Walker, Oakes, Calabresi)

Defendant argued that under Apprendi v. New Jersey, 120 S.Ct. 2348 (2000), the language of 8 U.S.C. § 1326(b), which authorizes a prison term of up to 20 years for a person whose deportation was subsequent to a conviction of an aggravated felony, must be construed as setting out an offense distinct from that set out in § 1326(a), which does not mention prior convictions and limits the term of imprisonment to two years. As defendant's indictment did not allege his prior conviction, defendant argued that it set forth only the elements of § 1326(a), and thus should not have been sentenced to more than two years. The defendant argued that Apprendi overruled Almendarez-Torres v. United States, 523 U.S. 224 (1998). The Second Circuit disagreed, noting that they rejected that very argument in their recent opinion in United States v. Latorre-Benavides, 241 F.3d 262 (2d Cir. 2001).

United States v. Caminero, ___ F.3d ___ [2001 WL 266310; March 19, 2001]
(Summary Order; Walker, Oakes, Parker)

Defendant argued that under Apprendi v. New Jersey, 120 S.Ct. 2348 (2000), the language of 8 U.S.C. § 1326(b), which authorizes a prison term of up to 20 years for a person whose deportation was subsequent to a conviction of an aggravated felony, must be construed as setting out an offense distinct from that set out in § 1326(a), which does not mention prior convictions and limits the term of imprisonment to two years. As defendant's indictment did not allege his prior conviction, defendant argued that it set forth only the elements of § 1326(a), and thus should not have been sentenced to more than two years. The defendant argued that Apprendi overruled sub silentio Almendarez-Torres v. United States, 523 U.S. 224 (1998). The Second Circuit disagreed, noting that they rejected that very argument in their recent opinion in United States v. Latorre-Benavides, 241 F.3d 262 (2d Cir. 2001).

United States v. Martinez-Cuadros, F.3d ___ [2001 WL 290117; March 23, 2001]
(Summary Order; Cardamone, Leval, Katzmann)

The defendant argued that Apprendi v. New Jersey, 530 U.S. 466 (2000) overruled Almendarez-Torres v. United States, 523 U.S. 224 (1998). The Second Circuit disagreed, noting that they rejected that very argument in their recent opinion in United States v. Latorre-Benavides, 241 F.3d 262 (2d Cir. 2001).

United States v. Newell, 242 F.3d 369 [2001 WL 30650; Jan. 10, 2001]
(Summary Order; Cardamone, Parker, Katzmann)

Defendant argued that his sentence of 77 months for illegal reentry violated the ex post facto clause because it was greater than the statutory maximum in effect before September 1994, when the maximum penalty was increased from five to ten years. Because defendant was found in the United States in December, 1994, the Second Circuit held that he was properly sentenced under the ten year statutory maximum provision. Defendant argued that because he reentered in November 1992 and used an invalid alien registration card to reenter, the INS had notice of his presence and therefore his offense was completed at that time and thus prior to the increase in the statutory maximum. The Second Circuit disagreed, stating that although the INS had notice of his presence, it did not have notice of the illegality of that presence.

United States v. Perez, F.3d ___ [2001 WL 300530; March 28, 2001]
(Summary Order; Feinberg, Newman, Sack)

Defendant argued that under Apprendi v. New Jersey, 120 S.Ct. 2348 (2000), the language of 8 U.S.C. § 1326(b), which authorizes a prison term of up to 20 years for a person whose deportation was subsequent to a conviction of an aggravated felony, must be construed as setting out an offense distinct from that set out in § 1326(a), which does not mention prior convictions and limits the term of imprisonment to two years. As defendant's indictment did not allege his prior conviction, defendant argued that it set forth only the elements of § 1326(a), and thus he should not have been sentenced to more than two years. Following Almendarez-Torres v. United States, 523 U.S. 224 (1998), the Second Circuit stated that § 1326(b) does not set out a separate offense but rather is a penalty provision with respect to a violation of § 1326(a).

§ 2R1.1: Antitrust Offenses

United States v. SKW Metals & Alloys, F.3d ___ [2001 WL 273824; March 20, 2001]
(Summary Order: Jacobs, Calabresi, Jones)

Upon remand, the district court ordered supplemental briefing and ultimately re-imposed the same sentence. On appeal, the government argued that the sentence was inconsistent with the mandate of the Second Circuit's initial order. The Second Circuit found no inconsistency. Further, the Court held that the government had failed on remand to satisfy its burden of proving which sales were affected during the relevant period.

§ 2S1.1: Money Laundering

United States v. Miller, F.3d ___ [2001 WL 300536; March 23, 2001]
(Summary Order; Sotomayor, Katzmann, Chin)

Defendant argued that because his money laundering conduct was "atypical," the district court erred in not sentencing him in accordance with a more lenient guideline, such as smuggling or fraud. Defendant relied on United States v. Smith, 186 F.3d 290 (3d Cir. 1999) which instructs a district court to consider whether the designated guideline applies or whether the conduct is "atypical," and if so, to decide which guideline is more appropriate. The Court declined to consider defendant's arguments because there was no indication that the district court was unaware of its authority to depart, and further, it was clear that defendant's conduct fell within the "heartland" of the money laundering guideline.

United States v. Opran, ___ F.3d ___ [2001 WL 138274; Feb. 16, 2001]
(Summary Order; Jacobs, Sotomayor, Cote)

Defendant argued that because his money laundering conduct was "atypical," the district court erred in not sentencing him in accordance with the more lenient fraud guideline, § 2F1.1. Defendant relied on United States v. Smith, 186 F.3d 290 (3d Cir. 1999) which instructs a district court to consider whether the designated guideline applies or whether the conduct is "atypical," and if so, to decide which guideline is more appropriate. However, the Sentencing Commission characterized Smith as the result of "confusion," and amended the Guidelines to remove the word "atypical." The Second Circuit declined to adopt the Smith approach. Further, the Court noted that the sentencing judge found that the money laundering was integral to the overall scheme and not incidental to it and therefore the money laundering guideline was the appropriate one.

§ 2X3.1: Accessory After the Fact

United States v. Ortiz, 242 F.3d 369 [2001 WL 11049; Jan. 4, 2001]
(Summary Order; Oakes, Jacobs, Parker)

Defendant argued that the district court adopted a high guidelines range when sentencing him as an accessory pursuant to U.S.S.G. § 2X3.1. Under that guideline, the offense level shall not be more than level 20 if the defendant's conduct was limited to harboring a fugitive. Since the defendant failed to object to the presentence report or raise an objection at the sentencing hearing, his claim was deemed waived. Further, the Second Circuit held that the district court did not commit plain error in determining that the defendant's conduct exceeded mere harboring.

ADJUSTMENTS

§ 3A1.1: Vulnerable Victim

United States v. Boyd, 242 F.3d 368 [2001 WL 40781; Jan. 16, 2001]
(Summary Order; Feinberg; Sotomayor; Haight)

The Second Circuit affirmed the district court's imposition of a vulnerable victim upward adjustment pursuant to U.S.S.G. § 3A1.1 based on a scheme in which the defendants targeted numerous victims who had made earlier purchases, and thus had a "track record" for falling for fraudulent schemes. The district court also imposed the adjustment based on the defendants' attempts to sell to the victims whenever the victims wanted to get out of the market.

§ 3B1.1: Aggravating Role

United States v. Cambrelen, F.3d ___ [2001 WL 219285; March 6, 2001]
(Summary Order; Oakes, Kearse, Korman)

The district court's findings were sufficient to support a four-level upward adjustment in the offense level for a leadership role in the offense pursuant to U.S.S.G. § 3B1.1. The district court found that the defendant received tips as to what drug dealer was "ripe for robbing," supplied vehicles and guns used by the robbery crew and sold the drugs stolen by the crew. Further, there was evidence that the defendant was referred to as the leader of the crew by other members.

United States v. Kissoon, F.3d ___ [2001 WL 253070; March 13, 2001]
(Summary Order; Walker, Oakes, Pooler)

Defendant argued that the district court failed to make findings on the record in support of a two-level upward adjustment for being a leader of the cocaine conspiracy, and in any event that the evidence did not support the adjustment. The Second Circuit disagreed. While recognizing that the district court's findings consisted only of an "oblique" reference to the defendant's directing the conduct of others in the conspiracy, the Court also found that the record contained strong evidence of the defendant's role in the offense and, thus, saw "no point in remanding the case to the district court solely to make rote findings of fact."

United States v. Provenzano, 242 F.3d 369 [2001 WL 15609; Jan. 8, 2001]
(Summary Order; McLaughlin, Sack, Chatigny)

The district court's finding were sufficient to support a 4 level upward adjustment in the offense level for a leadership role in the offense pursuant to U.S.S.G. § 3B1.1. The district court found that the defendant introduced the members of the scheme to one another and coordinated the criminal relationship between them, that he arranged the details of the extortion payments and that he actively ensured that the payments would continue. The defendant also twice stated in his allocution that he had directed another individual to make payments.

United States v. Rosario, F.3d ___ [2001 WL 224071; March 7, 2001]
(Summary Order; Kearse, McLaughlin, Straub)

The Second Circuit upheld a three-level adjustment in defendant's offense level pursuant to U.S.S.G. § 3B1.1 on the basis that he was a leader of a car theft ring and supervised five or more participants. The Court noted that the defendant's counsel conceded in a pre-sentencing letter to the court that there were more than five persons involved in the auto theft conspiracy. There was also evidence that the defendant acted as a teacher, directed other members, and handled financial arrangements on behalf of the conspiracy.

§ 3B1.2: Mitigating Role

United States v. Fuller, F.3d ___ [2001 WL 224072; March 7, 2001]
(Summary Order; Kearse, McLaughlin, Straub)

The Second Circuit rejected without discussion defendant's contention that he was entitled to a downward adjustment for a minimal role in a stolen car conspiracy. The Court merely stated, "[s]tealing the cars for such an operation is hardly a minimal role."

United States v. Nachamie, F.3d ___ [2001 WL 266349; March 19, 2001]
(Summary Order; Straub, Pooler, Mukasey)

The Second Circuit rejected, without discussion, the defendant's argument that the district court erred in refusing to grant a mitigating role adjustment.

United States v. Santiago, 242 F.3d 369 [2001 WL 30531; Jan. 12, 2001]
(Summary Order; Meskill, Leval, Calabresi)

The Second Circuit found no error in the district court's denial of a two-level reduction as a minor participant under U.S.S.G. § 3B1.2(b). The defendant extensively participated in the offense; agreed to supply 550 grams of crack cocaine for $11,000; solicited a supplier and recruited a courier; and gave instructions for method of the exchange of drugs for money.

United States v Miceli, ___F.3d___[2001 WL 363504; April 12, 2001]
(Summary Order: Kearse, Cabranes, Katzmann)

The Second Circuit rejected defendant's argument that she was entitled to a minor role adjustment, since she was part-owner of the corporation that was subject of the investigation, took an active role in the finances and was not a passive, but a major, participant.

§ 3B1.3: Abuse of Trust

United States v. Hirsch, 239 F.3d 222 [Jan. 17, 2001]
(Sack opinion; joined by McLaughlin, Chatigny)

The Second Circuit distinguished defendant's case from United States v. Jolly, 102 F.3d 46 (2d Cir. 1996), where the Court had reversed an enhancement for abuse of trust. Unlike that case, this defendant conceded that there was a fiduciary relationship between him and his investors and that he was an investment advisor who acted on behalf of hundreds of investors and, consequently, was "in a position of trust at all times." The district court also found that the defendant developed personal relationships with his clients, who in turn relied upon and trusted him. The Second Circuit held that the defendant used the victims' trust in him to facilitate his crime and thus the adjustment was not clearly erroneous.

§ 3C1.1: Obstruction of Justice

United States v Ben-Shimon, ___F.3d___[2001 WL 460298; May 2, 2001]
(Per Curiam; Jacobs, Calabresi, Arterton)

On appeal, the defendant claimed that the district court failed to make all the necessary findings under United States v Dunnigan, 507 U.S. 87 [1993], in order to support an enhancement for obstruction of justice. Although it remains open whether a district court's adoption of the PSR findings is sufficient to discharge its duties under Dunnigan, the Second Circuit found that the PSR findings in this case were wholly insufficient anyway. Accordingly, the court remanded for further findings.

United States v Juncal, ___F.3d___[2001 WL 314615; April 2, 2001]
(Winter opinion; joined by Cardamone, Pooler)

Based upon defendant's allegation that his guilty plea was "coerced" by his attorney, the district court concluded that he had obstructed justice, warranting the two-level adjustment. The Second Circuit, however, held that the defendant did not intend to commit perjury by using the term "coercion," but only meant to convey that he was "frightened," "pressured" and "under duress." Accordingly, the court concluded that the enhancement was unjustified.

United States v. White, 240 F.3d 127 [Feb. 13, 2001]
(Katzmann opinion; joined by Sack, Sotomayor)

The Second Circuit upheld the district court's two-level adjustment for obstruction of justice where the defendant had told a co-defendant, at the time of their arrest, to tell the police that the drugs were hers. Defendant argued that because he admitted shortly thereafter that the drugs were his, he did not wilfully attempt to obstruct justice.

United States v. Woodard, 239 F.3d 159 [Feb. 1, 2001]
(Jacobs opinion; joined by Leval, Katzmann)

The Second Circuit held that the district court failed to make sufficient findings that the defendant left the jurisdiction with the intent to miss a court appearance or otherwise obstruct justice and, consequently, the two-level adjustment pursuant to U.S.S.G. § 3C1.1 was inappropriate. Although the district court found that the defendant knowingly and willful left the jurisdiction while out on bail, the defendant did not miss any court appearances. Nnor was there any evidence that his absence prevented the government's prosecution of the defendant or another individual about whom the defendant was providing information to the government.

United States v Miceli, ___F.3d___[2001 WL 363504; April 12, 2001]
(Summary Order: Kearse, Cabranes, Katzmann)

The Second Circuit found no basis for reversing the district court's finding, by clear and convincing evidence, that the defendant gave false testimony concerning a material matter, and did so intentionally, rather than due to confusion, mistake or faulty memory. Thus, the obstruction enhancement was proper.

United States v. Mocombe, F.3d ___ [2001 WL 138242; Feb. 16, 2001]
(Summary Order; Sotomayor, Cote)

Defendant argued that because he was not counseled properly before taking the stand, he was forced to perjure himself, and thus was exposed to an upward adjustment for perjury. The Second Circuit found that the adjustment was proper. Regardless of whether the defendant had been inadequately prepared before testifying, he was aware of his obligation to tell the truth.

United States v. Nelson, F.3d ___ [2001 WL 290199; March 23, 2001]
(Summary Order; Cardamone, Leval, Amon)

The Second Circuit rejected defendant's argument that the district court erred in upwardly adjusting his offense level for obstruction of justice. The Court found that there was adequate evidence of obstruction, including testimony that the defendant had asked a confederate to sign a false affidavit and wrote letters urging him not to cooperate with the authorities.

United States v. Provenzano, 242 F.3d 369 [2001 WL 15609; Jan. 8, 2001]
(Summary Order; McLaughlin, Sack, Chatigny)

Defendant argued that the district court's imposition of a two-level increase for obstruction of justice constituted impermissible double counting because the basis for the adjustment was the offense for which he was convicted, i.e., the destruction of evidence and witness tampering. The Second Circuit held that defendant's sentence was governed by Application Note 8 to § 3C1.1 which applies when a defendant is convicted of both an obstruction offense and the underlying offense with respect to which the obstruction occurred. Under that provision, the counts for the obstruction offense and the underlying offense should be grouped under § 3D1.2, and thus no impermissible double counting occurs.

United States v. Sencion, 242 F.3d 369 [2001 WL 46479; Jan. 18, 2001]
(Summary Order; Kearse, Jacobs, Cabranes)

Defendant argued that the district court improperly conflated the issues of willfulness and materiality in its determination to impose an upward adjustment for obstruction of justice. In a motion to suppress narcotic found in his bag, defendant submitted an affidavit stating, "an agent opened and searched my bag without my permission." The district court, after a hearing, determined that the defendant consented to the search and thus determined that defendant's false denial that he had given permission was willful and material. The Second Circuit affirmed.

United States v. Shapiro, 242 F.3d 369 [2001 WL 51034; Jan. 23, 2001]
(Summary Order; Van Graafeiland, Newman, Leval)

The Second Circuit affirmed, without discussion, the district court's imposition of an upward adjustment for obstruction of justice based on perjury.

§ 3D1.2: Grouping

United States v Percan, __F.3d___[2001 WL 468115; May 3, 2001]
(Calabresi opinion; joined by Van Graafeiland; Winter concurs separately)

Defendant argued that because the money laundering in his case involved the promotion of the fraud, as opposed to the concealment of the fraud, the counts should have been grouped, as an exception to United States v Napoli, 179 F.3d 1 [2nd Cir. 1999]). The Second Circuit held that there was no basis for making such a distinction. Further, the court found that, on these facts, the crimes were not so highly interwoven as to indicate that the victims of the crimes were the same for grouping purposes.

§ 3E1.1: Acceptance of Responsibility

United States v. Hirsch, 239 F.3d 222 [Jan. 17, 2001]
(Sack opinion; joined by McLaughlin, Chatigny)

The Second Circuit affirmed the district court's decision not to impose a downward adjustment for acceptance of responsibility, noting that the defendant was not entitled to such an adjustment as of right merely for entering a guilty plea. Further, the defendant had attempted to withdraw his plea, which is a well-established, though not automatic, ground for denying the adjustment. The Court stated that "the record shows that [the defendant] has resisted admitting guilt at every step in the process."

United States v Wobo, ___F.3d___[2001 WL 431488; April 27, 2001]
(Summary Order; Leval, Sack, Sotomayor)

The Second Circuit rejected the defendant's contention that the court abused its discretion in denying him a credit for acceptance of responsibility. The court noted that the defendant lied to his probation officer regarding the extent of his responsibility.

United States v Bermudez, ___F.3d___[2001 WL 409442; April 20, 2001]
(Summary Order; Miner, Sack, Raggi)

The Second Circuit summarily rejected defendant's argument that the court failed to rule on his motion for an acceptance of responsibility adjustment. The finding that defendant had obstructed justice implicitly contained a finding that he was not entitled to a credit for acceptance of responsibility. Further, the court's ruling that defendant had dealt more drugs than he had claimed, in effect, rejected the motion for acceptance of responsibility.

United States v. Boyd, 242 F.3d 368 [2001 WL 40781; Jan. 16, 2001]
(Summary Order; Feinberg; Sotomayor; Haight)

The district court's determination not to grant the defendant a downward adjustment for acceptance of responsibility was based on his refusal to surrender and his decision to become a fugitive and spend $500,000 of the victims' money until arrested two years after the date of the indictment, all after initially engaging in negotiations to surrender. The Second Circuit affirmed the district court's decision, noting that the defendant was not entitled to such an adjustment as of right merely for entering a guilty plea.

United States v. Darling, 242 F.3d 368 [2001 WL 30664; Jan. 11, 2001]
(Summary Order; Feinberg; Sotomayor; Katzmann)

Defendant argued that the district court erred by denying an acceptance of responsibility downward adjustment because, just prior to sentencing, he had been arrested in Virginia. Defendant argued that the district court should have followed the Sixth Circuit's minority rule that criminal conduct unrelated to the underlying offense is irrelevant to a determination of acceptance of responsibility. The Second Circuit disagreed, holding that if a defendant commits a second crime while awaiting sentence for the underlying offense, that is relevant and can be considered in denying an acceptance of responsibility adjustment. The Court further found meritless the defendant's argument that the district court failed to make specific factual findings in support of its denial. The record showed that the district court explicitly adopted the factual findings of the PSR.

United States v. Ortiz, 242 F.3d 369 [2001 WL 11049; Jan. 4, 2001]
(Summary Order; Oakes, Jacobs, Parker)

The Second Circuit affirmed the district court's refusal to grant a reduction for acceptance of responsibility. Although the defendant pled guilty, he continued to maintain that: he was not a member of the gang that had been charged with various crimes; he never sold narcotics on the gang territory; he did not receive substantial profits from the conspiracy; and that the government informants were lying.

United States v. Parker, F.3d ___ [2001 WL 290087; March 23, 2001] (Summary Order; Cardamone, Leval, Katzmann)

The Second Circuit upheld the district court's denial of a reduction for acceptance of responsibility despite the court's indication, at the time of defendant's plea, that it was likely to grant the reduction. The Second Circuit found that the district court "never made a commitment" to the reduction.

United States v. Provenzano, 242 F.3d 369 [2001 WL 15609; Jan. 8, 2001]
(Summary Order; McLaughlin, Sack, Chatigny)

Because the defendant waived his right to appeal, the Second Circuit refused to address the merits of his argument that he should have been granted an additional one-level reduction of his offense level for timely notification of his intention to enter a guilty plea.

United States v. Ruttner, F.3d ___ [2001 WL 138308; Feb. 16, 2001]
(Summary Order; Van Graafeiland, Calabresi, Sotomayor)

The Second Circuit held that the district court abused its discretion by granting an adjustment for acceptance of responsibility. A letter submitted on behalf of the defendant by a rabbi did not reflect acceptance of responsibility that was "extraordinary." The Court noted that there was nothing unusual about a criminal defendant expressing serious contrition "as the proverbial day of reckoning nears." Accordingly, the court remanded for resentencing.

CRIMINAL HISTORY

§ 4A1.1: Criminal History Category

United States v. Caminero, ___ F.3d ___ [2001 WL 266310; March 19, 2001]
(Summary Order; Walker, Oakes, Parker)

The defendant argued, and the government conceded, that the criminal history category used was erroneous. Both the PSR and the court treated defendant's offense as committed on the date he "reentered" the United States, rather than the date he was "found" in the United States, the specific offense of which he was convicted. Using the wrong date, the sentencing court adjusted his criminal history category under U.S.S.G. § 4A1.1(d) for having committed the offense while on supervised release, and under § 4A1.1(e) for having committed the offense within two years after his release from custody. Since neither applied to the correct date, the defendant should not have received either adjustment, and thus his criminal history category should have been IV instead of V.

United States v. Kolawole, 242 F.3d 368 [2001 WL 40575; Jan. 17, 2001]
(Summary Order; Kearse, Jacobs, Cabranes)

The defendant argued that, in determining that his range was 6-12 months, the district court erroneously relied on hearsay statements to decide upon his criminal history category. Excluding those statements, the defendant maintained the proper range was 4 to 10 months. The district court, however, sentenced defendant to 10 months and indicated that the sentence would have been the same even if defendant's view of the guideline range. The Second Circuit affirmed the sentence because the sentence would have been the same under either guideline range, and because the sentencing judge is permitted to consider hearsay evidence, so long as it is determined to be reliable.

§ 4A1.2: Computing Criminal History

United States v. Nelson, F.3d ___ [2001 WL 290199; March 23, 2001]
(Summary Order; Cardamone, Leval, Amon)

Defendant argued that his two previous sentences which were separately counted in computing his criminal history category, should have been considered related and counted as one under § 4A1.2. Disagreeing, the Second Circuit found that there was no indication that the sentences were connected to each other other than the fact that they were imposed by the same court on the same day. The Court also rejected defendant's argument that the district failed to make factual findings, since the district court clearly indicated that it relied on and adopted the factual findings in the PSR.

United States v Cox,___F.3d___[2001 WL 314585; March 28, 2001]
(Straub opinion: joined by Pooler, Sack)

In light of the dismissal of defendant's state conviction, he was entitled to a review of his federal sentence, which was enhanced on account of that prior conviction. The Second Circuit rejected the government's claim that the defendant was required to raise this claim pursuant to a § 2255 petition. The court observed that the government conceded that the case could be remanded to the district court in order to supplement the record.

§ 4A1.3: Adequacy of Criminal History Category

United States v. Mishoe, 241 F.3d 214 [Feb. 23, 2001]
(Newman opinion; joined by Cabranes, Straub)

The government appealed the district court's decision to depart "horizontally" to reduce the defendant's criminal history category ("CHC") from VI to V. The district court concluded that CHC VI overrepresented the seriousness of his criminal history because all of his four prior offenses, as well as the instant offense, were street-level sales of narcotics. The Second Circuit interpreted the district court's reasoning to have adopted a special rule that prior offenses involving street-level sales permit a horizontal departure, and rejected such a general rule. The Court remanded, indicting that the district court would be entitled to consider a departure based on individualized consideration of factors, rather than based upon any generalized rule.

United States v Tejeda-Campusano, ___F.3d___[2001 WL 468137; May 1, 2001]
(Summary Order: Jacobs, Parker, Katzmann)

The district court's refusal to grant a downward departure, on the ground that the 16-level enhancement overstated his criminal past, was not reviewable since there was no suggestion in the record that the judge mistakenly believed he lacked the authority to depart as a matter of law.

United States v. Omoruyi, F.3d ___ [2001 WL 289968; March 23, 2001] (Summary Order; Straub, Pooler, Sack)

Given the defendant's record of recidivism, which included thirteen arrests and six convictions, the Second Circuit found no error in an upward departure on the ground that his criminal history category did not adequately reflect his criminal history.

United States v. Parker, F.3d ___ [2001 WL 290087; March 23, 2001]
(Summary Order; Cardamone, Leval, Katzmann)

Considering the defendant's extensive criminal record and the indication of likely recidivism, the Second Circuit found no error in an upward departure to increase his criminal history category.

§ 4B1.1: Career Offender

United States v. Cambrelen, F.3d ___ [2001 WL 219285; March 6, 2001]
(Summary Order; Oakes, Kearse, Korman)

Defendant argued that he should be resentenced because the district court, in sentencing him to life imprisonment without parole on the basis of his record of convictions, failed to ask him whether he affirmed or denied his prior convictions. The Second Circuit disagreed since the defendant had failed to object at sentencing and had stipulated to his prior convictions at trial.

DETERMINING THE SENTENCE

§ 5C1.1: Imposing of a Term of Imprisonment

United States v. Scarpa, F.3d ___ [2001 WL 194350; Feb. 26, 2001]
(Summary Order; Kearse, Leval, Katzmann)

The government appealed defendant's sentence, alleging that the district court had not granted the defendant a downward departure, but misapplied the Guidelines, and that a correct application of the Guidelines would have resulted in a sentence of some 90 years, instead of the sentence of some 40 years that the defendant received. While the sentencing transcript was ambiguous, the written judgment contained a check next to a box stating that "the Court makes a DOWNWARD DEPARTURE." At oral argument, the government conceded that it had not reviewed the written judgment prior to filing its cross-appeal and had not realized their oversight until the defendant pointed it out to them at oral argument. The Second Circuit affirmed.

§ 5C1.2: Safety Valve

United States v Bermudez, ___F.3d___[2001 WL 409442; April 20, 2001]
(Summary Order; Miner, Sack, Raggi)

The Second Circuit summarily rejected defendant's argument that the court failed to rule on his motion for safety valve credit. The finding that defendant had obstructed justice implicitly contained a finding that he was not entitled to such a credit. Further, the court's ruling that defendant had dealt more drugs than he had claimed, in effect, rejected the motion for safety valve treatment.

§ 5D1.3: Supervised Release

United States v. Mendoza, F.3d ___ [2001 WL 179931; Feb. 21, 2001]
(Summary Order; Van Graafeiland, Calabresi, Sotomayor)

Because the five-year term of supervised release exceeded the three-year statutory maximum applicable to the defendant, the Second Circuit vacated and remanded for resentencing. Unless defendant's offenses of wire and mail fraud affected a "financial institution," his crimes were Class D felonies, see 18 U.S.C. § 3559, carrying a maximum supervised release term of three years. The government conceded that the investment firm from which the defendant fraudulently obtained funds was not a "financial institution" and that therefore the five-year term exceeded the three-year maximum.

§ 5E1.1: Restitution

United States v. Ben Zvi, 242 F.3d 89 [March 6, 2001]
(Walker opinion; joined by Marrero, concurrence by Van Graafeiland)

The Second Circuit upheld the district court's imposition of restitution in the amount of $6,624,512., rejecting defendant's arguments that the district court failed to make specific findings as to the identity of the underwriters of an insurance policy and the amount of money each lost, and that the defendant had limited financial resources.

United States v. Boyd, 239 F.3d 471 [Jan. 16, 2001]
(Per Curiam; Feinberg; Sotomayor; Haight)

Defendant argued that the district court's order of restitution under the Mandatory Victims Restitution Act ("MVRA") violated the Ex Post Facto clause because the conspiracy for which he was convicted began before, but ended after, the effective date of the MVRA. In a case of first impression, the Second Circuit held that a sentencing court may constitutionally apply the MVRA to orders of restitution for defendants whose conspiracies began before, but ended after, the MVRA's effective date. In so holding, the Second Circuit joined the Seventh, Ninth, Tenth, and Eleventh Circuits.

United States v Kowalewski, ___F.3d___[2001 WL 345142; April 5, 2001]
(Summary Order; McLaughlin, Straub, Korman)

As the government conceded, the district court improperly ordered that the payment schedule for the restitution order be set by the Probation Department. Because that is a judicial function, it may not be delegated to the probation office. The Second Circuit rejected, however, the defendant's claim that the district court had not considered all the mandatory factors in determining the amount of restitution.

United States v Popovic, ___F.3d___[2001 WL 345146; April 5, 2001]
(Summary Order; Oakes, Straub, Kaplan)

Although the defendant failed to object to the amount of loss at the first sentencing hearing, she made such an objection when the matter was remanded so that the court could consider all the factors relevant to restitution. The Second Circuit held that the district court was obligated to regard the loss objection as timely and valid. For "when a sentence has been vacated, the defendant is placed in the same position as if he had never been sentenced." Accordingly, the court remanded again for a determination of loss.

United States v. Loudon, 242 F.3d 369 [2001 WL 50901; Jan. 23, 2001]
(Summary Order; Newman, Leval, Sack)

The defendant challenged the district court's order to sell his house in Ireland and apply the proceeds to the restitution balance. The Second Circuit found there order was not an abuse of discretion in view of the evidence that the proceeds of the defendant's frauds were invested in that house, that the defendant could not make restitution without selling the house, and that the defendant would be unable to live in that house during the three years he would be on supervised release.

United States v. Nachamie, F.3d ___ [2001 WL 266349; March 19, 2001]
(Summary Order; Straub, Pooler, Mukasey)

The Second Circuit rejected, without discussion, the defendant's argument that the district court abused its discretion in refusing to apportion restitution to reflect his relative culpability and gain.

§ 5G1.2: Multiple Counts

United States v. White, 240 F.3d 127 [Feb. 13, 2001]
(Katzmann opinion; joined by Sack, Sotomayor)

The Second Circuit rejected defendant's argument that Apprendi v. New Jersey, 530 U.S. 466 (2000) prohibited the district court's use of U.S.S.G. § 5G1.2(d) to run his sentences consecutively, on the ground that effectively increased his sentence based on facts not found to have been proven beyond a reasonable doubt by a jury. The Court said Apprendi was concerned with whether the sentencing court had exceeded the sentence for a particular court based on facts not found by a jury and that here, the district court did not exceed the maximum for any individual count.

The defendant also argued that the district court's comment at sentencing that it had "no leeway" to depart from the 240 year sentence it imposed indicated that it did not understand its authority to depart. The Second Circuit agreed and remanded for resentencing noting that notwithstanding the apparent mandatory nature of § 5G1.2, a sentencing court may depart from the "stacking" provision of that section to impose concurrent sentences where the imposition of multiple stacked sentences based on similar conduct created an aggravating or mitigating circumstance not adequately taken into consideration by the Sentencing Commission. See United States v. Rahman, 189 F.3d 88, 154-57 (2d Cir. 1999), cert. denied, 528 U.S. 1094 (2000).

United States v Vincente, ___F.3d___[2001 WL 431482; April 26, 2001]
(Summary Order; Winter, Straub, Pooler)

The Second Circuit rejected the defendant's argument that the district court failed to recognize its discretion to impose a partially concurrent sentence. In fact, the record showed that the court correctly assumed it had such discretion, but rejected that approach due to the heinous nature of the offense.

§ 5G1.3: Undischarged Sentence

United States v. Burgos, 242 F.3d 368 [2001 WL 55790; Jan. 23, 2001]
(Summary Order; Oakes, Jacobs, Parker)

At sentencing, the district court "recommend[ed]" that defendant's sentence "run concurrent to any state time" while the written judgment ordered that the sentences "shall run concurrently." Defendant claimed that the Bureau of Prisons improperly treated the district court's determination to be merely a recommendation and imposed the sentences consecutively. The Second Circuit refused to review the merits of defendant's appeal because he filed his notice of appeal six days after the deadline. The Court noted that the defendant may still seek relief through administrative means within the Bureau of Prisons, or under Federal Rule of Civil Procedure 36, which provides for the correction of errors in the record at any time.

United States v. Polanco-Coplin, F.3d ___ [2001 WL 290147; March 23, 2001]
(Summary Order; Leval, Sack, Raggi)

Defendant argued that the district court had discretion under § 5G1.3(c) to run his federal sentence fully concurrent with his undischarged state sentence by giving credit for six months he served on the state conviction prior to being transferred into federal custody, as described in this section's application note 2. The Second Circuit rejected defendant's argument, noting that note 2 applies to subsection (b) of this section. Further, the Court stated that it need not decide whether that note applies to subsection (c) because the district court indicated that would not apply note 2 in any event. The Court also rejected defendant's argument that the district court mistakenly believed that it could not depart as an alternative method of giving him credit for time served on this state sentence. The Court found no indication that the sentencing judge had any inclination to depart and further, that the there were no special circumstances justifying a downward departure.

§ 5K2.0: Downward Departures

Aberrant Conduct

United States v. Cabrera, F.3d ___ [2001 WL 138256; Feb. 16, 2001]
(Summary Order; Van Graafeiland; Winter; Calabresi)

The district court's decision no to depart based on aberrant conduct was unappealable, since the guidelines were not misapplied and the court defendant not misunderstand its authority to depart.

United States v. Martinez, F.3d ___ [2001 WL 179822; Feb. 20, 2001]
(Summary Order; Kearse, Leval, Katzmann)

In United States v. Martinez, 207 F.3d 133 (2d. Cir. 2000), the Second Circuit previously held that the district court had erroneously downwardly departed on the ground of aberrant conduct, reasoning that the prolonged, calculated and systematic nature of the defendant's activity (importation of cocaine on three occasions over a 13-month period) could not be considered aberrant. On remand, the district court declined to grant a downward departure. On appeal of that judgment, the defendant aargued that the district court was free to consider other bases for departure on remand. The Second Circuit disagreed, stating that they did not suggest that the court should consider any other basis for a departure.

United States v. Mocombe, ___ F.3d ___ [2001 WL 138242; Feb. 16, 2001] (Summary Order; Sotomayor, Cote)

The district court's decision not to depart based on aberrant conduct was unappealable, since the guidelines were not misapplied and the court defendant not misunderstand its authority to depart.

United States v. Collins, ___ F.3d ___ [2001 WL 194302; Feb. 26, 2001]
(Summary Order; Kearse, Leval, Katzmann)

The district court's decision not to depart was unappealable, since the guidelines were not misapplied and the court had not misunderstood its authority to depart.

Child Abuse

United States v. Richardson, F.3d ___ [2001 WL 138284; Feb. 15, 2001]
(Summary Order; Parker, Sack, Katzmann)

Defendant argued that the sentencing court erred in concluding that United States v. Rivera, 192 F.3d 81 (2d Cir. 1999) constrained it to consider only abuse that occurred during childhood. The Second Circuit found that the district court understood its authority to depart, but declined to do so.

Consent to Deportation

United States v. Martinez, F.3d ___ [2001 WL 99822; Feb. 2, 2001]
(Summary Order; Van Graafeiland, Calabresi, Patterson)

Defendant argued that the district court should have sua sponte downwardly departed to allow him to be deported more quickly. The Second Circuit dismissed his appeal, stating that the defendant had failed to make this argument below and that his claim was unreviewable.

Disparities among districts

United States v Tejeda-Campusano, ___F.3d___[2001 WL 468137; May 1, 2001]
(Summary Order: Jacobs, Parker, Katzmann)

The court reaffirmed that a downward departure is not available for interdistrict disparities in illegal reentry cases.

Extraordinary Efforts to Overcome Poverty

United States v. Richardson, F.3d ___ [2001 WL 138284; Feb. 15, 2001]
(Summary Order; Parker, Sack, Katzmann)

Although it was unclear whether the district court understood its authority to depart based on the defendant's extraordinary efforts to overcome poverty, the Second Circuit found that the facts of the case would not warrant such a departure anyway, and thus any error would be harmless. Defendant had overcome poverty by gaining an education and obtaining a responsible job, where she then converted funds which led to her conviction.

Extraordinary Family Circumstances

United States v. Ramirez, F.3d ___ [2001 WL 290276; March 23, 2001]
(Summary Order; Leval, Sack, Patterson)

The Second Circuit agreed with the government that a seven-level downward departure based on extraordinary family circumstances was unwarranted.. Without further discussion, the court found that "this case does not fall outside the 'heartland' of typical cases."

United States v. Ruttner, F.3d ___ [2001 WL 138308; Feb. 16, 2001]
(Summary Order; Van Graafeiland, Calabresi, Sotomayor)

The Second Circuit held that the district court abused its discretion by downwardly departing based on extraordinary family circumstances solely on a showing that the defendant had three young children. The Court found that fact alone not to be sufficient to warrant a departure and remanded for resentencing.

Pretrial Confinement Conditions

United States v. Mendoza, F.3d ___ [2001 WL 179931; Feb. 21, 2001]
(Summary Order; Van Graafeiland, Calabresi, Sotomayor)

The Second Circuit refused to review defendant's claim that the district court erred in not downwardly departing based on the conditions of his pretrial confinement, rejecting his claim that the district court's statement that defense counsel was "making a legal argument which I don't thinks is valid," evidenced that it misunderstood its authority to depart. Defendant contended that the conditions were harsh because during a prison transfer, the Bureau of Prisons lost his hearing aid and artificial eye and that they were slow to replace them.

Rehabilitation

Quesada-Mosquera v. United States, F.3d ___ [2001 WL 282657; March 23, 2001]
(Per Curiam; Straub, Pooler, Mukasey)

Defendant argued the district court erred in denying his 18 U.S.C. § 3582 motion for reduction in sentence, based on his post-conviction rehabilitation, which included completing a college degree. The Second Circuit disagreed and cited to a recent amendment in the Sentencing Guidelines which explicitly states that post-sentencing rehabilitative efforts are not an appropriate basis for a downward departure when resentencing a defendant.

Pughe v. United States, F.3d ___ [2001 WL 138295; Feb. 16, 2001]
(Summary Order; Jacobs, Calabresi, Sotomayor)

After defendant successfully vacated his sentence on a habeas corpus petition, the government appealed from the district court's judgment on remand. On remand, the district court (Judge Weinstein) departed downward based on the defendant's rehabilitation. The Second Circuit vacated the sentence and remanded for resentencing within the guideline range. Judge Jacobs noted that he would assign the case to a different district court judge on remand because Judge Weinstein made no attempt to distinguish the Court's recent reversal of him in United States v. Bryson, 63 F.3d 742 (2d Cir. 1998) (which was virtually identical to this case). The Court noted, "Judge Jacobs believes that reassignment is advisable in part to avoid in the future the stirring of futile hopes that the defendant and his mother have been led to entertain."

United States v. Cabrera, F.3d ___ [2001 WL 138256; Feb. 16, 2001]
(Summary Order; Van Graafeiland; Winter; Calabresi)

The district court's decision not to depart based on rehabilitation was unappealable, since the guidelines were not misapplied and the court defendant not misunderstand its authority to depart.

Upward Departures

United States v. Omoruyi, F.3d ___ [2001 WL 289968; March 23, 2001]
(Summary Order; Straub, Pooler, Sack)

Defendant argued that he did not received adequate notice of the district court's intention to upwardly depart. Since the PSR recommended an upward departure on the same grounds, to which the defendant submitted written objections, the court held that defendant had adequate notice.

§ 5K2.13: Diminished Capacity

United States v. North, F.3d ___ [2001 WL 290306; March 23, 2001]
(Summary Order; Sotomayor, Katzmann; Bertelsman)

Defendant argued that the district court misapprehended its power to depart on the ground of diminished capacity because it incorrectly assumed that there had to be a showing that the diminished capacity would have contributed to the commission of the offense. The Second Circuit dismissed defendant's appeal because, whether or not the district court misinterpreted the guidelines, it also stated a departure was unwarranted, regardless of whether such a showing had to be made.

SENTENCING PROCEDURES

Denial of Request for Adjournment

United States v. Doe, 239 F.3d 473 [Jan. 24, 2001]
(Per Curiam; Van Graafeiland, Winter, Calabresi)

The Second Circuit held that it was not an abuse of discretion for the district court to deny defendant's request for an adjournment of his sentencing on the grounds that he was about to file a motion to vacate his prior state conviction. The vacatur of his state conviction would change his sentencing exposure on his federal case from a Guidelines range of 51 to 63 months with a statutory mandatory minimum of 60 months to a range of 27 to 33 months with no statutory mandatory minimum. The Court noted that if defendant's attack on his state conviction were successful, he could than seek review of this sentence.

Denial of Request for Psychiatric Evaluation

United States v. Parker, F.3d ___ [2001 WL 194329; Feb. 26, 2001]
(Summary Order; Kearse, Leval, Katzmann)

Defendant argued that he was denied due process because the district court did not provide him with a psychiatric examination, which would have illustrated the link between his criminal activity and post traumatic stress disorder so as to justify a downward departure. The Second Circuit disagreed, finding that although defense counsel had made a request for an evaluation, his later actions indicated that he might not need such an evaluation if he were able to obtain a report from the defendant's treating psychiatrist. The Court further stated that if defendant were also contending that the district court should have downwardly departed, that claim would not be reviewable as there was no indication in the record that the district court believed it lacked the authority to depart or applied an erroneous legal standard.

Duplicity

United States v. Sturdivant, 244 F.3d 71 [March 19, 2001]
(Sotomayor opinion; Calabresi, Trager)

The Second Circuit agreed with the defendant that he was prejudiced by being convicted and sentenced based upon a single count in the indictment that charged him with participating in two separate and distinct drug transactions. The duplicity resulted in uncertainty as to whether the jury's general verdict represented a unanimous finding that defendant was guilty based on participation in both drug transactions or just one. The Court held that the prejudice to the defendant could be avoided by resentencing him only on the transaction involving the lesser drug amount, as if had been acquitted on the other transaction. The Court remanded for resentencing, noting that the district court would be free to consider the now-deemed acquitted conduct as relevant conduct and make any permissible adjustments or departures.

Ineffective Assistance of Counsel

Abbamonte v. United States, F.3d ___ [2001 WL 290524; March 23, 2001]
(Summary Order; Cardamone, Leval, Amon)

Defendant argued, and the government conceded, that he was denied ineffective assistance of counsel when his attorney completely abandoned him at sentencing. The Second Circuit remanded for resentencing.

United States v Cox, ___F.3d___[2001 WL 314585; March 28, 2001]
(Straub opinion; joined by Pooler, Sack)

Where the case was being remanded to supplement the record on another issue, the Second Circuit also directed further fact-finding on defendant's claim of ineffective assistance, which was based upon the claim that his lawyer, who represented him both during the state and federal sentencing proceedings, should not have allowed him to plead guilty to the state charges without advising him about the consequences on the federal case. The court observed that the government conceded the authority to remand for additional fact-finding in this type of case.

United States v. Motipersad, F.3d ___ [2001 WL 266285; March 16, 2001]
(Summary Order; Meskill, Parker, Katzmann)

Defendant argued that his counsel was ineffective for failing to seek a downward departure on the ground that he provided substantial assistance to the government and because of his extraordinary acceptance of responsibility. The Second Circuit held that the record did not support a "reasonable probability" that sentencing hearing would have had a more favorable result but for his counsel's alleged errors.

Resentencing de novo

United States v. Stephenson, 242 F.3d 369 [2001 WL 40571; Jan. 17, 2001]
(Summary Order; Kearse, Jacobs, Cabranes)

After defendant's conviction for one of two concurrent terms of money laundering was vacated, the district court refused, without a hearing, to resentence the defendant. The Second Circuit held that because of the other undisturbed money laundering conviction, the district did not abuse its discretion in refusing to reduce the sentence or in refusing to conduct a hearing.

Version of Guidelines

United States v Vincente, ___F.3d___[2001 WL 431482; April 26, 2001]
(Summary Order; Winter, Straub, Pooler)

Since the defendant could have received a consecutive sentence under the version of the guidelines in 1994 - when he committed the offense - and in 2000 - when he was sentenced - the Second Circuit found no ex post facto problem in applying the 2000 Guidelines. The court observed that it is only when an ex post facto problem occurs that courts should not apply the version of the Guidelines in effect at the time of sentencing.

SUPERVISED RELEASE AND PROBATION

United States v Peterson, ___F.3d___[2001 WL 436029; April 30, 2001]
(Per Curiam; Kearse, Leval, Cabranes)

As a condition of probation for the defendant's violation of bank larceny, which arose out of bad checks he wrote in connection with a failing computer business, the district court prohibited him from possessing, purchasing or using a computer or from accessing the internet. This condition was influenced by the fact that defendant was previously convicted of incest and had accessed legal adult pornography web sites. The Second Circuit held that the broad restrictions on computer use and internet access were not "reasonably related" to the "nature and circumstances of the offense," to the defendant's "history and characteristics," or were "reasonably necessary" to the broad sentencing purposes indicated in 18 U.S.C. § 3553(a)(2).

The district court also required, as a special condition of probation, that defendant participate in sex offender therapy "as directed by the U.S. Probation Office." The Second Circuit held that the defendant's prior offense justified this condition, but agreed that it was inappropriate to delegate to the probation office the decision whether or not to participate in a program. On the other hand, the court may delegate the details with respect to the selection and schedule of the program.

In addition, the district court directed the defendant to notify third parties of risks that may be occasioned by his criminal record, including both the incest and the bank larceny conviction. The Second Circuit held that the statute did not authorize notification of the defendant's state-court incest conviction. Further, the court remanded to clarify the probationary condition that the defendant stay away from any school, grounds, child care center, playground, park and area "in which children are likely to congregate." Finally, the district court did not abuse its discretion in barring the defendant from unsupervised contact with children under eighteen.

United States v. Thomas, 239 F.3d 163 [Feb. 1, 2001]
(Kaplan opinion; joined by Van Graafeiland, Katzmann)

The Second Circuit upheld the district court's finding that the defendant had violated the terms of his supervised release by possessing ammunition, despite the fact that the Court reversed the defendant's conviction for possession of ammunition. The Court found that "while the untainted evidence against [the defendant] was not overwhelming, this finding - which was properly made on the preponderance of the evidence standard - was not clearly erroneous."

United States v. Ilori, 242 F.3d 368 [2001 WL 40785; Jan. 16, 2001]
(Summary Order; Van Graafeiland, Winter, Sotomayor)

According to defendant's criminal history category, the policy statements of the guidelines indicated a revocation range of between 4 to 10 months and the statutory maximum term of imprisonment was not more than 3 years. The district court sentenced defendant to 24 months. The Second Circuit found that the district court had considered the policy statements and that the 24 month sentence was a reasonable departure based on the defendant's lack of legitimate employment history and involvement in several fraudulent schemes. The Second Circuit also rejected defendant's argument that the sentencing judge had established a general presumption in favor of departing from the revocation range.