United States v. Hernandez, No. 09-4930-cr (2d Cir. March 25, 2011), points out an interesting Guidelines question. Under § 3B1.1, the government bears the burden of proving that the defendant played an aggravating role. And one of the requirements for safety valve consideration is that the defendant not receive an aggravating role enhancement. But the circuit has held that the defendant bears the burden of proving that he qualifies for the safety valve. These conflicting principles have created "uncertainty about where the burden lies with respect to" this aspect of safety valve relief. This opinion, unfortunately, only points out the question but does not answer it.
In United States v. Nelson, No. 09-3308-cr (2d Cir. March 23, 2011), the court considered whether an appeal waiver was knowing and voluntary. The waiver precluded an appeal of any sentence of 137 months' imprisonment or less, but during the plea, at one point, the court advised Nelson that he would not be able to appeal any sentence that "exceeds 137 months' incarceration." Nevertheless, the court, "after careful review of the record," declined to invalidate the waiver. At another point in the plea the AUSA correctly explained the appeal waiver, and the court itself correctly described a parallel provision of the waiver dealing with career offender classification. Thus, there was "no meaningful risk that Nelson elected to enter into the plea agreement on the mistake understanding that it precluded his ability to appeal a sentence in excess of, but not at or below, 137 months."
In United States v. Bell, No. 09-4964-cr (2d Cir. March 23, 2011), the defendant challenged the government's rebuttal summation, which identified him with Lee Harvey Oswald and also "falsely portrayed him as a gambler and gunman waiting for a shootout with the police." The circuit found some of the comments "troubling," because they "overstated the trial evidence in a number of respects," and others "misleading" because they were "unsupported by the evidence" and an "inappropriate" characterization of it. But the court nevertheless affirmed, noting that the defendant did not object to the comments below, and that they were an "aberration in an otherwise fair proceeding."
