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United States v. Thompson

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Argued: May 12, 2008

Before: FEINBERG and MINER, Circuit Judges.*fn1

Defendants-appellants, Tai Todd, Jason Rose, Otis Fisher, Junior Robinson, and Ricardo Rodriguez (collectively, the “Defendants”), appeal from judgments of conviction and sentence entered, following a jury trial, in the United States District Court for the Southern District of New York (Scheindlin, J.) on September 27, 2005 (Todd, Fisher, and Robinson), December 27, 2005 (Rose), and July 2, 2007 (Rodriguez). Todd was convicted of one count of conspiracy to possess with intent to distribute between 5 and 50 grams of cocaine base and an unspecified amount of marijuana, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A) and 841(b)(1)(D). The remaining Defendants were convicted of conspiracy to possess with intent to distribute 50 grams or more of cocaine base as well as an unspecified amount of marijuana and of using and possessing firearms in furtherance of the conspiracy, in violation of 18 U.S.C. §§ 924(c)(1)(A) and 924 (c)(2). The District Court sentenced Todd to a term of imprisonment of 60 months and Fisher to consecutive terms of imprisonment totaling 211 months. The remaining Defendants each received consecutive sentences totaling 300 months. Before us on appeal are challenges to the seating of the jury, including a reverse-Batson challenge; sufficiency of the evidence; the introduction of a tape recording of an attempted sale of crack; certain evidentiary rulings; the alleged withholding of Brady material; a finding of competency to stand trial; and sentencing. For the reasons that follow, we affirm the Defendants’ convictions and vacate and remand to the District Court for reconsideration of the sentences imposed on the Defendants in accordance with United States v. Regalado, 518 F.3d 143 (2d Cir. 2008) (per curiam).

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