Saturday, April 19, 2008


United States v. Gill, No. 07-0284-cr (2d Cir. April 17, 2008) (Cabranes, Sotomayor, Wesley, CJJ) (per curiam)

Gill, who pled guilty to making false statements in a health care matter, unsuccessfully challenged two of his special conditions of supervised release. The first, which barred him from "engaging in the business of counseling," was reasonably related to the need to protect the public, since Gill had in the past falsely represented himself as qualified to provide mental health services, when in fact he was not. The other condition - a requirement that he continue making restitution payments arising from an earlier condition - was likewise proper because it was reasonably related to his history and characteristics


Cracked Up

United States v. Lee, No. 06-4933-cr (2d Cir. April 17, 2008) (Cabranes, Wesley, CJJ, Castel, DJ)

Defendant Cathy Lee received a 120-month sentence, the mandatory minimum, in a crack trafficking case. She raised on appeal a host of constitutional and statutory challenges to her sentence, claiming that it violated § 3535(a), the Eighth Amendment, and equal protection, in light of the powder-vs-crack sentencing disparities.

The court held that these claims were waived by the appellate waiver in Lee's plea agreement. Although such waivers will not be enforced when an "arguably unconstitutional" consideration influenced the sentencing, there was no such consideration here. The equal protection argument with respect to crack sentences is a claim about the statute itself, not a claim that the court considered an improper factor at sentencing. Moreover, the court rejected the equal protection statutory argument nearly fifteen years ago, and no subsequent legal development - including Kimbrough - is a basis for changing this view.

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Saturday, April 12, 2008

For Your Consideration

United States v. Hardwick, No. 04-1369-cr (2d Cir. April 11, 2008) (Winter, Walker, Sotomayor, CJJ)

Glen Hardwick was convicted after a jury trial of conspiracy to commit and aiding/abetting murder-for-hire in violation of 18 U.S.C. § 1958. Virtually all of the evidence of the “consideration” element of the offense came from the plea allocution of Hardwick’s brother, which was admitted into evidence over objection, although not a Confrontation Clause objection. The appellate court held that this Sixth Amendment violation was plain error, but that there was legally sufficient evidence on this element. It accordingly did not reverse the conviction; it vacated and remanded for a new trial.

Facts: Most of the action here involved Glenn Hardwick’s brother, Stacey, who had an ongoing drug and gun trafficking relationship with an undercover police officer. At one point, Stacey contacted the UC and asked him to kill someone who had pulled a gun on Glen. The UC of, course, agreed, and there followed a lot of back-and-forth about the terms of the deal. The UC, who had said that he used a gun only once when he did a hit, then would discard it, asked Stacey to supply the gun for this murder. He also asked for a second gun as “payment.” Stacey balked at this; he only wanted to give the UC one gun, although Stacey offered to sell him a second.

Eventually, the UC met with Stacey and Glen, but the brothers had brought only one gun - the one the UC was supposed to use for the job. Shortly after handing the gun over to the UC, the brothers were arrested.

Stacey pled guilty, and in his allocution admitted that there was consideration for the contemplated murder: “The payment for the intended murder was a .32 caliber pistol.” The government admitted this allocution into evidence at trial - which took place before Crawford was decided - subject to a limiting instruction that told the jury that it was free use it as evidence of Stacey’s activities, but could not infer from it that Glen was a member of the conspiracy. In its summation, the government relied on the allocution as proof of the consideration element, and during deliberations the jury had it read back.

The Confrontation Violation: On appeal, the government conceded that the admission of the allocution was error. The circuit agreed and, after a confusing and inconclusive discussion (much of which is relegated to end notes, just to make it as painful as possible) of whether ordinary plain error review or “modified” plain error review should apply, held that it was plain error under either standard.

The error was “plain” because at the time of “appellate consideration” there was an obvious Crawford violation. In addition, the admission of the allocution affected Glen’s substantial rights “because it almost surely influenced the jury’s verdict.” The evidence on the consideration element was very close, and turned entirely on Stacey’s state of mind. But the district court’s limiting instruction expressly permitted the jury to use it for that purpose, and the circuit concluded that the jury must have, in light of the government’s use of it in summation, and the readback.

The Sufficiency of the Evidence: The court went on to hold that the evidence was legally sufficient on the consideration element, however. Giving a hit man a gun as payment for his work satisfies § 1958, and Stacey’s allocution clearly indicated that this was his plan. In another confusing and inconclusive discussion of an important issue, again much of which is - maddeningly - relegated to end notes, the court went on to hold that appellate sufficiency review includes the consideration of “improperly admitted evidence.” As for those Second Circuit cases that have excluded improperly admitted evidence from sufficiency review, they did so “sub silencio,” and hence are not “binding precedent.”

Comment: This should have been the end of the story, but it is not. What follows will blow your mind. Judge Winter, writing alone - “my colleagues do not join me in the discussion” - takes it upon himself to “inform the parties of [his] views on the sufficiency issue absent the plea allocution.” His elaborate and completely unconvincing justification for this extraordinary step is - you guessed it - consigned to an end note that it itself spans two pages of text. In the opinion itself, he covers nearly four pages explaining to the government how it should retry the case, mapping out “at least one scenario [that] might reasonably be found by a jury to be sufficient to meet Section 1958's consideration requirement.”

No wonder the rest of the panel passed on this. This was a completely inappropriate thing to do. The case already has at least two prosecutors assigned to it. It does not need a third. It also seems extremely short-sighted, given the problems it is likely to cause down the road. Glen might well be retried and reconvicted, and will surely make a sufficiency argument on his second appeal. What on earth will that panel do with this part of the opinion when that happens?

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Wednesday, April 09, 2008

Next Stop, Confusion

United States v. Hendry, No. 06-5118-cr (2d Cir. Aprl 9, 2008) (Leval, Calabresi, Wesley, CJJ) (per curiam)

In this decision the Court blows yet another opportunity to clarify the “fast-track” sentencing issue in illegal reentry cases.

The court has already held that district courts are not required to take into account the lower sentences imposed in fast track districts, but has left open the question whether a court has the authority to do so if it deems a reduced sentence warranted. This decision still seems to leave the question open. Here, although Hendry argued that the district judge erroneously believed that he could not consider
the absence of a fast-track program in deciding what sentence to impose, the circuit found that the district judge believed that he could consider it - although he elected not to do so - and the opinion does not say whether the judge's belief was correct or incorrect.

The opinion does, however, hold that fast-track sentences in other jurisdictions do not “require” a lower sentence in non-fast-track districts under the parsimony clause. “[S]entences in fast-track districts cannot be compared with sentences in non-fast-track-districts in order to demonstrate that the latter are longer than necessary [because] the two are not directly comparable.”

Comment: This unfortunate decision actually creates more questions than it answers. We still do not know for sure whether a court can consider the fast-track argument. And now, because of the way this opinion is written, we also do not know for sure whether a court can consider the parsimony argument. Does this opinion mean that district courts are not “require[d]” to consider fast-track sentences under the parsimony clause, or that they cannot? It can be read either way.

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Tuesday, April 08, 2008


Here are three more s/o’s to chew on:

In United States v. Glum, No. 06-3099-cr (2d Cir. April 8, 2008), the court ordered a Crosby remand even though the district court, when denying the defendant’s pro se 2255 motion, had already indicated that it would impose the same sentence.

In United States v. Ogman, No. 06-0203-cr (2d Cir. April 7, 2008), the court refused to order a Regalado remand in a crack case where the defendant was sentenced as a career offender. Here, the Guideline range was “not the result of the 100-to-1 powder to crack ratio, but rather resulted from [defendant's] undisputed status as a career offender.”

In United States v. Ruiz, No. 06-5609-cr (2d Cir. April 1, 2008), the court held that the defendant's sentencing appeal was barred by the waiver contained in the plea agreement, even though it was “not entirely clear that the sentencing judge complied with the parsimony clause.”

Friday, April 04, 2008

Consecutive Privilege

United States v. Donoso, No. 07-0635-cr (2d Cir. April 3, 2008) (McLaughlin, Hall, CJJ, Sand, DJ) (per curiam)

Resolving an open question in this circuit, the court here holds that, under 18 U.S.C. § 3584(a), a district judge cannot order the federal sentence to run consecutively to another sentence that has not yet been imposed.

Facts: Richard Donoso violated his federal supervised release by committing a state offense. He pled guilty in state court, then came into federal court and admitted the supervised release violation. Judge Spatt sentenced him to 24 months’ imprisonment and ordered it to run consecutively to the state sentence. Donoso was not sentenced in the state case, however, until the next day. A few days later, Judge Spatt recalled the case, questioning whether he had the power to impose a consecutive sentence before the state sentence had been imposed. Invoking Fed.R.Cr.Proc. 35(a), and over objection, he vacated the sentence, then reimposed it, ordering it to run consecutive to the state sentence that Donoso was now actually serving.

The Appeal: On Donoso’s appeal, the circuit held that Judge Spatt was correct in his belated realization that he could not impose a consecutive federal sentence before the state sentence had been imposed. Title 18 U.S.C. § 3584(a) provides that, if a term of imprisonment is imposed on a defendant who is “already subject to an undischarged term of imprisonment,” those terms “may run concurrently or consecutively.” Under the circuit’s reading of this section, however, where, as here, sentence has not yet been imposed in the state case, the defendant is not “already subject to” that term of imprisonment, thus the statute does not apply.

Comment: This case, almost certainly incorrectly decided, gives undeservedly short shrift to very important issues regarding statutory interpretation and sentencing policy.

The first, and most important, problem here is that underlying statutory premise of this decision is wrong. The circuit concluded that § 3584(a) did not apply to Donoso when he was awaiting sentencing on his state case because he was not yet serving that sentence. But that is not what the statute says. The statute applies if the defendant is “already subject to” another a sentence; it does not say that he has to be “already serving” it. And a person can clearly be “subject to” a sentence even if he is not yet serving it. Donoso, for example, was in custody in New York State awaiting imposition of sentence on a charge that he had already been convicted of. It seems perfectly clear that he was in every respect “already subject to” that sentence, and thus that 3584(a) should apply to his situation. After all, if Congress meant had “already serving,” as opposed to "already subject to," it could easily have said so. At a minimum here there is an ambiguity that should be tested under the rule of lenity.

A second aspect of this decision that also seems wrong - or at least warrants more discussion than this brief per curiam gave it - is the premise that 3584(a) is the only authority for imposing concurrent or consecutive sentences and that, if it does not apply, all the district court can do is impose sentence and not address the question. There is a good argument that § 3553(a) itself confers concurrent/consecutive authority. That section begins with very broad language about the imposition of sentence that can easily be interpreted to include the decision about whether the sentence should be concurrent or consecutive. Also, § 3553(a)(5)(A) requires the sentencing court to consider any pertinent Guidelines policy statements, and as it happens, there is a policy statement that deals with this issue. Guidelines section 5G1.3(c), which authorizes concurrent, consecutive or partially concurrent sentences, is expressly designated a policy statement, and is broader than § 3584(a). While the statute applies only where the defendant is “already subject to” an undischarged term of imprisonment - whatever that means - the policy statement applies in any case “involving” an undischarged term of imprisonment. Donoso, as noted above, was not serving his undischarged state sentence when he was first sentenced federally. But his case certainly “involved” an undischarged term of imprisonment.

Why does the blog care about this? Because, although the court does not say so, this decision seems to compel the conclusion that a district court cannot order the federal sentence to run concurrently to a state sentence that has not yet been imposed, which is something that defendants frequently ask for. Indeed, some defendants try very hard to get sentenced in their federal case before sentencing in their state case so that they will not receive an increased criminal history score, but still want the federal judge to order a concurrent sentence. This decision spells trouble in that kind of case.

Final Comment: This case is also maddening for a completely different reason. Donoso got the statutory maximum for his supervised release violation, consecutive to his state sentence. Both of those decisions were discretionary and subject to reasonableness review. Why is there no mention of the reasonableness of the sentence on this appeal? The blog simply cannot imagine that he that he did not raise the issue.

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Thursday, April 03, 2008


United States v. Wexler, No. 06-1571-cr (2d Cir. April 3, 2008) (Miner, Raggi, CJJ, Rakoff, DJ)

David Wexler was a Manhattan dermatologist who ran a prescription mill. He would prescribe painkillers to patients whom he did not examine or treat, often with the understanding that either the prescriptions or the medications would be sold to others. The prescription mill was also the fuel for an ongoing Medicare fraud in which he would, for these same patients, bill the government for multiple procedures that he did not perform. Wexler was convicted after a jury trial of narcotics and fraud counts and was sentenced principally to 20 years’ imprisonment. On appeal, the majority of a divided panel reversed his conviction on the most serious drug count, concluding that the evidence was insufficient, and remanded the case for resentencing.

Wexler had a patient named Barry Abler, for whom he wrote numerous prescriptions for painkillers: Dilaudid, Percocet, Vicodin and Soma. Abler also introduced others to Wexler for the same purpose, and Wexler wrote them prescriptions for many of the same drugs although, according to the trial testimony, not Dilaudid. On May 19, 2001, Wexler gave Abler a prescription for Dilaudid, and Abler died nine days later of an overdose.

Count One of the indictment charged Wexler with conspiracy to distribute Dilaudid, Percocet, Vicodin and Xanax, and conspiracy to distribute Dilaudid resulting in death. Count Nine charged him with a substantive count of distributing Dilaudid resulting in death. The jury convicted him of both; with respect to Count One, it found that the conspiracy resulted in Abler’s death; with respect to Count Nine, it concluded that the distribution did not result in Abler’s death. As a result of the conviction on Count One, however, Wexler was subject to, and received, a twenty-year mandatory minimum sentence.

On appeal, the majority held that the evidence supporting the conviction of conspiracy to distribute Dilaudid causing death under Count One was legally insufficient, because there was no evidence that Wexler conspired with Abler to distribute that particular drug. Under the so-called “buyer-seller” rule, an “agreement that one member of a conspiracy supply another with a drug . . . does not comprise an agreement to distribute that drug.” The trial evidence established that Abler was the only one of the relevant patients to receive prescriptions for Dilaudid; moreover, there was no proof that “Abler agreed to, or did, distribute Dilaudid” to anyone else. Indeed, the quantities of Dilaudid that Wexler prescribed to him were consistent with personal use. Thus, Abler and Wexler were “mere buyer-and-seller” - by prescription, of course - with respect to Dilaudid. While Wexler’s illegal sale of the drug to Abler was a substantive crime, that sale agreement itself was not a conspiracy to distribute because it had “no separate criminal object.”

The court rejected the government’s theory that Abler and Wexler’s “multi-year, multi-member conspiracy” to distribute many different drugs was itself sufficient evidence. Calling this a “broad brush approach,” the majority noted that the specific charge in the indictment was to distribute “Dilaudid,” not a “variety of drugs,” causing death. “The only evidence that could bring Abler and Wexler out of the realm of buyer and seller with respect to Dilaudid was evidence suggesting an intent to redistribute Dilaudid itself.” Here, there was no such evidence.

The majority ended with bit of good old-fashioned Apprendi reasoning, noting the sentencing disparities in the drug statutes, which depend on the type of drugs involved. Where “the type of drug is a critical determinant of the length of a defendant’s sentence, the Government should be required to prove what it alleges.”

Judge Raggi, in dissent, criticized every aspect of the majority’s decision, which she deemed an “unwarranted extension of the buyer-seller rule.” To her, the evidence showed that Abler and Wexler were more than “mere” buyer and seller. She also disagreed with the majority’s insistence that the pleadings in this case required specific evidence of an agreement to distribute Dilaudid, and with its conclusion that there was insufficient evidence of a conspiratorial intent to redistribute that particular drug.

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