In United States v. Bender, No. 08-3103-cr (2d Cir. August 14, 2009), the court rejected both substantive and procedural challenges to an upward departure in a child pornography case, even though the district court "should have provided a written statement of the specific reasons for its sentence."
In United States v. Giordano, No. 07-3487-cr (2d Cir. August 12, 2009), the court affirmed the decision not to resentence the defendant on a Crosby remand, even though the district court had "mischaracterized the record in rejecting" the defendant's harsh conditions of pretrial confinement - solitary confinement for 23 hours each day - as a "consideration that might justify a decision to resentence." The court's "misstatement" did not undermine it's decision not to resentence, since it also concluded that the original sentence would not have been materially different had it known at the time of the original sentencing that the guidelines were advisory.
United States v. Garcia, No. 07-3779-cr (2d Cir. August 11, 2009), found that trial counsel was not ineffective in failing to attend the presentence interview. The probation officer did not question the defendant about the offense, and the attorney reviewed the first draft of the report and had no objections to it.
