Top Legal News » 2nd COA http://www.top-legal-news.com Daily Legal News and Updates Sat, 31 Jul 2010 20:20:33 +0000 http://wordpress.org/?v=2.8.5 en hourly 1 Denial of Reduction in Sentence Affirmed http://www.top-legal-news.com/denial-of-reduction-in-sentence-affirmed/ http://www.top-legal-news.com/denial-of-reduction-in-sentence-affirmed/#comments Fri, 23 Jul 2010 09:10:51 +0000 admin http://www.top-legal-news.com/denial-of-reduction-in-sentence-affirmed/ US v. Mock, No. 09-4154, involved defendant’s appeal from the district court’s denial of defendant’s motion for a reduction in sentence pursuant to 18 U.S.C. section 3582(c)(2).  The court of appeals affirmed on the grounds that 1) neither the district court nor the court of appeals was free to address, in a proceeding pursuant to 18 U.S.C. section 3582(c)(2), defendant’s arguments regarding procedural errors at his original, now-final sentencing; and 2) at least for purposes of a motion for a reduced sentence, the record disclosed that defendant was sentenced as a career offender under U.S.S.G. section 4B1.1.

As the court wrote:  “Defendant-Appellant John Mock III appeals from the district court’s denial of his motion for a reduction in sentence pursuant to 18 U.S.C. § 3582(c)(2), which he filed based on the amendments to the U.S. Sentencing Guidelines relating to the base offense levels for crack-related offenses, see U.S.S.G., Supp. to App. C., Amend. 706 (effective Nov. 1, 2007); see also id. Amend. 713 (effective Mar. 3, 2008) (collectively, the “crack cocaine amendments”). The district court reasoned that, because Mock was originally sentenced as a career offender, see U.S.S.G. § 4B1.1, he was ineligible for a sentence reduction based on the crack cocaine amendments.”

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]]> http://www.top-legal-news.com/denial-of-reduction-in-sentence-affirmed/feed/ 0 Denial of Reduction in Sentence Affirmed http://www.top-legal-news.com/denial-of-reduction-in-sentence-affirmed/ http://www.top-legal-news.com/denial-of-reduction-in-sentence-affirmed/#comments Fri, 23 Jul 2010 09:10:51 +0000 admin http://www.top-legal-news.com/denial-of-reduction-in-sentence-affirmed/ US v. Mock, No. 09-4154, involved defendant’s appeal from the district court’s denial of defendant’s motion for a reduction in sentence pursuant to 18 U.S.C. section 3582(c)(2).  The court of appeals affirmed on the grounds that 1) neither the district court nor the court of appeals was free to address, in a proceeding pursuant to 18 U.S.C. section 3582(c)(2), defendant’s arguments regarding procedural errors at his original, now-final sentencing; and 2) at least for purposes of a motion for a reduced sentence, the record disclosed that defendant was sentenced as a career offender under U.S.S.G. section 4B1.1.

As the court wrote:  “Defendant-Appellant John Mock III appeals from the district court’s denial of his motion for a reduction in sentence pursuant to 18 U.S.C. § 3582(c)(2), which he filed based on the amendments to the U.S. Sentencing Guidelines relating to the base offense levels for crack-related offenses, see U.S.S.G., Supp. to App. C., Amend. 706 (effective Nov. 1, 2007); see also id. Amend. 713 (effective Mar. 3, 2008) (collectively, the “crack cocaine amendments”). The district court reasoned that, because Mock was originally sentenced as a career offender, see U.S.S.G. § 4B1.1, he was ineligible for a sentence reduction based on the crack cocaine amendments.”

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]]> http://www.top-legal-news.com/denial-of-reduction-in-sentence-affirmed/feed/ 0 Denial of Reduction in Sentence Affirmed http://www.top-legal-news.com/denial-of-reduction-in-sentence-affirmed-2/ http://www.top-legal-news.com/denial-of-reduction-in-sentence-affirmed-2/#comments Fri, 23 Jul 2010 09:10:51 +0000 admin http://www.top-legal-news.com/denial-of-reduction-in-sentence-affirmed-2/ US v. Mock, No. 09-4154, involved defendant’s appeal from the district court’s denial of defendant’s motion for a reduction in sentence pursuant to 18 U.S.C. section 3582(c)(2).  The court of appeals affirmed on the grounds that 1) neither the district court nor the court of appeals was free to address, in a proceeding pursuant to 18 U.S.C. section 3582(c)(2), defendant’s arguments regarding procedural errors at his original, now-final sentencing; and 2) at least for purposes of a motion for a reduced sentence, the record disclosed that defendant was sentenced as a career offender under U.S.S.G. section 4B1.1.

As the court wrote:  “Defendant-Appellant John Mock III appeals from the district court’s denial of his motion for a reduction in sentence pursuant to 18 U.S.C. § 3582(c)(2), which he filed based on the amendments to the U.S. Sentencing Guidelines relating to the base offense levels for crack-related offenses, see U.S.S.G., Supp. to App. C., Amend. 706 (effective Nov. 1, 2007); see also id. Amend. 713 (effective Mar. 3, 2008) (collectively, the “crack cocaine amendments”). The district court reasoned that, because Mock was originally sentenced as a career offender, see U.S.S.G. § 4B1.1, he was ineligible for a sentence reduction based on the crack cocaine amendments.”

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]]> http://www.top-legal-news.com/denial-of-reduction-in-sentence-affirmed-2/feed/ 0 Dismissal Based on Forum Selection Clause Affirmed, and Admiralty and Criminal Matters http://www.top-legal-news.com/dismissal-based-on-forum-selection-clause-affirmed-and-admiralty-and-criminal-matters/ http://www.top-legal-news.com/dismissal-based-on-forum-selection-clause-affirmed-and-admiralty-and-criminal-matters/#comments Fri, 23 Jul 2010 09:10:48 +0000 admin http://www.top-legal-news.com/dismissal-based-on-forum-selection-clause-affirmed-and-admiralty-and-criminal-matters/ Royal & Sun Alliance Ins., PLC v. Ocean World Lines, Inc., No. 08-4324, involved an action based on damage to a printing press shipped pursuant to a bill of lading.  The court of appeals affirmed partial summary judgment for defendant on the ground that the Supreme Court previously held that the Carmack Amendment “does not apply to a shipment originating overseas under a single through bill of lading,” in Kawasaki Kisen Kaisha Ltd. v. Regal-Beloit Corp., ___ S.Ct. ___ (2010).

S.K.I. Beer Corp. v. Baltika Brewery, No. 06-3501, concerned plaintiff’s appeal from the district court’s order granting defendant’s motion to dismiss the complaint based upon a forum selection clause in the parties’ written agreement.  The court of appeals affirmed on the ground that plaintiff failed to make a clear showing that enforcement of the parties’ contractual forum selection clause was unreasonable, unjust, or invalid.

US v. Pickett, No. 09-0683, involved defendant’s appeal from the district court’s imposition of restitution more than ninety days after defendant’s sentencing hearing, based on his conviction for access device fraud.  The court of appeals affirmed on the ground that the district court had the authority to order restitution pursuant to Dolan v. United States, ___ S. Ct. ___ (Jun. 14, 2010).

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]]> http://www.top-legal-news.com/dismissal-based-on-forum-selection-clause-affirmed-and-admiralty-and-criminal-matters/feed/ 0 Dismissal Based on Forum Selection Clause Affirmed, and Admiralty and Criminal Matters http://www.top-legal-news.com/dismissal-based-on-forum-selection-clause-affirmed-and-admiralty-and-criminal-matters-2/ http://www.top-legal-news.com/dismissal-based-on-forum-selection-clause-affirmed-and-admiralty-and-criminal-matters-2/#comments Fri, 23 Jul 2010 09:10:48 +0000 admin http://www.top-legal-news.com/dismissal-based-on-forum-selection-clause-affirmed-and-admiralty-and-criminal-matters-2/ Royal & Sun Alliance Ins., PLC v. Ocean World Lines, Inc., No. 08-4324, involved an action based on damage to a printing press shipped pursuant to a bill of lading.  The court of appeals affirmed partial summary judgment for defendant on the ground that the Supreme Court previously held that the Carmack Amendment “does not apply to a shipment originating overseas under a single through bill of lading,” in Kawasaki Kisen Kaisha Ltd. v. Regal-Beloit Corp., ___ S.Ct. ___ (2010).

S.K.I. Beer Corp. v. Baltika Brewery, No. 06-3501, concerned plaintiff’s appeal from the district court’s order granting defendant’s motion to dismiss the complaint based upon a forum selection clause in the parties’ written agreement.  The court of appeals affirmed on the ground that plaintiff failed to make a clear showing that enforcement of the parties’ contractual forum selection clause was unreasonable, unjust, or invalid.

US v. Pickett, No. 09-0683, involved defendant’s appeal from the district court’s imposition of restitution more than ninety days after defendant’s sentencing hearing, based on his conviction for access device fraud.  The court of appeals affirmed on the ground that the district court had the authority to order restitution pursuant to Dolan v. United States, ___ S. Ct. ___ (Jun. 14, 2010).

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]]> http://www.top-legal-news.com/dismissal-based-on-forum-selection-clause-affirmed-and-admiralty-and-criminal-matters-2/feed/ 0 Dismissal Based on Forum Selection Clause Affirmed, and Admiralty and Criminal Matters http://www.top-legal-news.com/dismissal-based-on-forum-selection-clause-affirmed-and-admiralty-and-criminal-matters-2/ http://www.top-legal-news.com/dismissal-based-on-forum-selection-clause-affirmed-and-admiralty-and-criminal-matters-2/#comments Fri, 23 Jul 2010 09:10:48 +0000 admin http://www.top-legal-news.com/dismissal-based-on-forum-selection-clause-affirmed-and-admiralty-and-criminal-matters-2/ Royal & Sun Alliance Ins., PLC v. Ocean World Lines, Inc., No. 08-4324, involved an action based on damage to a printing press shipped pursuant to a bill of lading.  The court of appeals affirmed partial summary judgment for defendant on the ground that the Supreme Court previously held that the Carmack Amendment “does not apply to a shipment originating overseas under a single through bill of lading,” in Kawasaki Kisen Kaisha Ltd. v. Regal-Beloit Corp., ___ S.Ct. ___ (2010).

S.K.I. Beer Corp. v. Baltika Brewery, No. 06-3501, concerned plaintiff’s appeal from the district court’s order granting defendant’s motion to dismiss the complaint based upon a forum selection clause in the parties’ written agreement.  The court of appeals affirmed on the ground that plaintiff failed to make a clear showing that enforcement of the parties’ contractual forum selection clause was unreasonable, unjust, or invalid.

US v. Pickett, No. 09-0683, involved defendant’s appeal from the district court’s imposition of restitution more than ninety days after defendant’s sentencing hearing, based on his conviction for access device fraud.  The court of appeals affirmed on the ground that the district court had the authority to order restitution pursuant to Dolan v. United States, ___ S. Ct. ___ (Jun. 14, 2010).

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]]> http://www.top-legal-news.com/dismissal-based-on-forum-selection-clause-affirmed-and-admiralty-and-criminal-matters-2/feed/ 0 Child Pornography Sentence Vacated http://www.top-legal-news.com/child-pornography-sentence-vacated/ http://www.top-legal-news.com/child-pornography-sentence-vacated/#comments Thu, 22 Jul 2010 04:10:44 +0000 admin http://www.top-legal-news.com/child-pornography-sentence-vacated/ In US v. Tutty, No. 09-2705, the Second Circuit vacated defendant’s child pornography sentence on the ground that the district court erred when it held, relying on outdated law, that it did not have the authority to impose a non-Guideline sentence based on policy considerations applicable to all defendants.

As the court wrote:  “Defendant-appellant Jason E. Tutty pleaded guilty to one count of receiving child pornography in violation of 18 U.S.C. § 2252A(a)(2)(A). He was sentenced by the United States District Court for the Western District of New York (Siragusa, J.) to 168 months’ imprisonment. On appeal, Tutty challenges the substantive reasonableness of his sentence. Upon review of the record, we conclude that the district court erred when it held, relying on outdated law, that it did not have the authority to impose a non-Guideline sentence based on policy considerations applicable to all defendants. Moreover, as we recently recognized in United States v. Dorvee, 604 F.3d 84 (2d Cir.2010), the child pornography Guidelines present important policy considerations, and unless they are “carefully applied,” they “can easily generate unreasonable results.” Id. at 98. We vacate the judgment and remand to the district court for resentencing to correct the procedural error and to consider the policy concerns addressed in Dorvee.”

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]]> http://www.top-legal-news.com/child-pornography-sentence-vacated/feed/ 0 Reversal of Grant of Habeas Petition in Assault Prosecution http://www.top-legal-news.com/reversal-of-grant-of-habeas-petition-in-assault-prosecution/ http://www.top-legal-news.com/reversal-of-grant-of-habeas-petition-in-assault-prosecution/#comments Sat, 17 Jul 2010 08:07:28 +0000 admin http://www.top-legal-news.com/reversal-of-grant-of-habeas-petition-in-assault-prosecution/ In Gueits v. Kirkpatrick, No. 09-2335, an assault prosecution, the court of appeals reversed the grant of petitioner’s habeas petition, holding that petitioner failed to demonstrate that the New York Supreme Court, Appellate Division, was unreasonable in its application of the ineffective assistance of counsel standard set forth in Strickland v. Washington, 466 U.S. 668 (1984).

As the court wrote:  “Respondent Robert Kirkpatrick, Superintendent of New York State’s Wende Correctional Facility, appeals from the judgment of the United States District Court for the Eastern District of New York (Brian M. Cogan, Judge) granting Johnny Gueits’s petition for a writ of habeas corpus. Exercising de novo review, we hold that Gueits has failed to demonstrate that the New York Supreme Court, Appellate Division, was unreasonable in its application of the ineffective assistance of counsel standard set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984). Accordingly, we REVERSE the district court’s judgment and REMAND with instructions to dismiss the petition.”

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]]> http://www.top-legal-news.com/reversal-of-grant-of-habeas-petition-in-assault-prosecution/feed/ 0 Challenges to Connecticut’s Campaign Finance Reform Act, and Constitutional and Education Matters http://www.top-legal-news.com/challenges-to-connecticuts-campaign-finance-reform-act-and-constitutional-and-education-matters/ http://www.top-legal-news.com/challenges-to-connecticuts-campaign-finance-reform-act-and-constitutional-and-education-matters/#comments Sat, 17 Jul 2010 08:07:25 +0000 admin http://www.top-legal-news.com/challenges-to-connecticuts-campaign-finance-reform-act-and-constitutional-and-education-matters/ Green Pty. of Conn. v. Garfield, No. 09-0599, involved a First Amendment challenge to Connecticut’s Campaign Finance Reform Act (CFRA).  The court of appeals affirmed summary judgment for defendants in part, holding that the CFRA comported with the First Amendment insofar as it bans contributions by state contractors, “prospective” state contractors, the “principals” of contractors and prospective state contractors, and the spouses and dependent children of those individuals.  However, the court reversed in part on the ground that the CFRA violated the First Amendment insofar as it banned contributions by lobbyists and their families and insofar as it prohibits contractors, lobbyists, and their families from soliciting contributions on behalf of candidates.

State of Conn. v. Duncan, No. 08-2437, concerned an action against the Secretary of Education, alleging that 1) the Secretary’s interpretation of the so-called “Unfunded Mandates Provision” of the No Child Left Behind Act (”NCLBA”) violated the State’s statutory and constitutional rights by requiring the State to expend its own funds to comply with the Act, and 2) the Secretary violated the Administrative Procedure Act (”APA”) by denying the State’s request for waivers from the NCLBA’s requirements; rejecting the State’s proposed amendments to its NCLBA accountability plan; and failing to provide the State a hearing on its proposed plan amendments.  The court of appeals affirmed judgment for defendant, on the ground that that State’s Unfunded Mandates Provision arguments were not yet ripe for judicial review.

Fox Tel. Stations, Inc. v. FCC, No. 06-1760, involved a petition for review of the indecency policy of the Federal Communications Commission (FCC).  The Second Circuit granted the petition on the ground that the FCC’s policy violated the First Amendment because it was unconstitutionally vague, creating a chilling effect that goes far beyond the fleeting expletives at issue.

Green Pty. of Conn. v. Garfield, No. 09-3760, concerned an action claiming that Connecticut’s Citizen Election Program (CEP), a statutory scheme providing public funds for candidates running for state office, violated the First and Fourteenth Amendments.  The court of appeals affirmed judgment for plaintiffs in part on the ground that the CEP’s so-called “trigger provisions” violated the First Amendment in a manner similar to the law struck down in Davis v. Federal Election Commission, 128 S. Ct. 2759 (2008).  However, the court reversed in part on the ground that the CEP did not unconstitutionally discriminate against minor-party candidates.

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]]> http://www.top-legal-news.com/challenges-to-connecticuts-campaign-finance-reform-act-and-constitutional-and-education-matters/feed/ 0 Arbitration Clause Held Unconscionable http://www.top-legal-news.com/arbitration-clause-held-unconscionable/ http://www.top-legal-news.com/arbitration-clause-held-unconscionable/#comments Sat, 17 Jul 2010 08:07:23 +0000 admin http://www.top-legal-news.com/arbitration-clause-held-unconscionable/ Fensterstock v. Educ. Fin. Ptnrs., No. 09-1562, involved defendant’s appeal from the district court’s denial of its motion to compel arbitration.  The court of appeals affirmed on the ground that the arbitration clause of the promissory note at issue was unconscionable under California law because of its class action waiver provision.

As the court wrote:  “Plaintiff Joshua G. Fensterstock commenced this action asserting state-law claims on behalf of himself and others similarly situated, alleging that defendants Education Finance Partners (”EFP”) and Affiliated Computer Services, Inc. (”ACS”), have engaged in frauudlent and deceptive practices in connection with the solicitation, consolidation, and servicing of student loans.”

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