United States Second Circuit

A conviction and sentence for being a felon in possession of a firearm is affirmed over claims that: 1) the district court erred in declining to give a jury instruction on the affirmative defenses of necessity or innocent/fleeting possession; 2) he was entitled to a new trial because the government used its peremptory challenges to exclude two African American women from the jury, contrary to Batson; and 3) his sentence was unreasonable, primarily because the district court erred in departing upward to criminal history category VI based on a conclusion that criminal history category V underrepresented the seriousness of defendant's past criminal conduct and the likelihood that he would commit other crimes in the future.

Appellate Information

• Decided 01/09/2009
• Published 01/09/2009

Judges

• LIVINGSTON, Circuit Judge:, Before:  KEARSE, SACK, LIVINGSTON, Circuit Judges.

Court

• United States Second Circuit

Counsel

• For Appellees:
  
• Robert G. Smith, Assistant Federal Defender, Western District of New York (Jay S. Ovsiovitch, of counsel), for Defendant-Appellant., Robert A. Marangola, Assistant United States Attorney, for Terrance P. Flynn, United States Attorney, Western District of New York, for Appellee.