United States v. Elfgeeh, 515 F.3d 100 (2d Cir. 2008)
In this post, we noted that a district court's failure to advise a defendant that it intended to impose an adverse non-Guidelines sentence constituted reversible error. Well, the same principles apply to fines.
Under Sections 5E1.2(c)(3) and (4) of the Guidelines, the defendant faced a possible fine of between $20,000 and $500,000. Yet the district court imposed a fine of $1,250,000 -- more than twice the maximum proscribed by the advisory Guidelines (even though it was less than the statutory maximum). Although the defendant did not challenge the fine imposed at sentencing, the Second Circuit concluded that its imposition constituted plain error because the district court did not give the defendant either "notice that a fine of such magnitude was contemplated or an opportunity to be heard on his ability to pay such a fine."
The Second Circuit, however, denied a request for remand to a different judge -- it found that doing so was not warranted. Instead, it directed that "the district court must give [the defendant] an opportunity to present evidence with respect to his ability to pay a fine and make specific findings as to [his] ability to pay the fine imposed. If the court decides to impose a fine that is different from the Guidelines-recommended range, it must also provide an explanation as to the specific reasons for its decision."
United States v. Wood, No. CR-88-0723 (CPS), 2008 WL 399253 (E.D.N.Y. Feb. 12, 2008)
On September 12, 1989, Wood was sentenced to concurrent sentences of 235 months imprisonment for a narcotics charges, and a consecutive 60 month term of imprisonment for a weapons charge. Since that time (which was approaching 19 years) Wood had no disciplinary action taken against him. Including his good time credit (a whopping 1,035 days), Wood's projected release date was June 22, 2008. Following retroactive amendment to crack guidelines, the court cut Wood a break, reducing his sentence to 212 months and making him eligible for release on March 3, 2008.
United States v. Sosa, No. 03 Cr. 502 (JGK), 2008 WL 336472 (S.D.N.Y. Feb. 6, 2008)
Simply story: Recalculation of Guidelines offense level after new crack Guidelines are applied results in reduction of sentence from 62 to 60 months. And, because "time is particularly important" due to the fact that Sosa was "otherwise schedule to be released on May 27, 2008," the Court entered an Amended Judgment of Conviction, effective March 3, 2008, reducing the defendant's sentence of imprisonment to 60 months.
United States v. DeMott, 513 F.3d 55 (2d Cir. 2008)
In this post-Booker world, it's hard to believe that a district court could commit so many errors in one case -- so many, in fact, that even the Government conceded that the case had to remanded for resentencing. Those errors included violating the defendant's right: (1) to be present at resentencing; (2) to counsel at resentencing; and (3) to notice that the court intended to impose an adverse non-Guidelines sentence. The court also failed to comply with 18 U.S.C. § 3553(c), which requires a sentencing judge to state "in open court" the reasons for imposing a particular sentence.
Taking the matter even further, the Second Circuit directed that the case should be reassigned upon remand. Specifically, it found that: Having reimposed an identical sentence after the first remand, the district judge may reasonably be expected to have substantial difficulty ignoring his previous views during a third sentencing proceeding. Moreover, resentencing without eliciting the views of the defendant or the prosecutor bespeaks a lack of receptivity to their views and arguments. We cannot find on this record that Judge Platt is personally biased against Day; but an objective observer might nonetheless question his impartiality.
United States v. Dupes, 513 F.3d 338 (2d Cir. 2008)
Following a guilt plea to securities fraud and conspiracy to commit securities fraud, the court sentenced Dupes to 38 months incarceration and 3 years of supervised release. Among other things, the court imposed a special condition of supervised release relating to his prior sex offenses. On appeal, Dupes argued that those special conditions -- which did not relate to his offense of conviction in this case -- exceeded the court's statutory authority and violated the Double-Jeopardy clause of the Constitution. The Second Circuit didn't agree.
Specifically, it found that the court had broad authority pursuant to 18 U.S.C. § 3583(d) to "impose any condition of supervised release that it considers to be appropriate, provided such condition is 'reasonably related' to certain statutory factors" listed in Section 3553(a). Here, the Second Circuit found that each of the special conditions imposed (sex offender registration, keeping a distance from children, etc.) was "reasonably related" to Dupes' history and characteristics as a sex offender, his need for treatment, and the public's need for protection from him. The Second Circuit therefore concluded that such conditions did not constitute a violation of the Double-Jeopardy clause because they constitute lawful punishment.
Perhaps. But something just seems off about this decision. Not only is its conclusion not well supported in the opinion, but it would not pass the "grandmother test": my grandmother would probably have said it was a bunch of hooey because Dupes was not convicted here for any sex offense, and imposing those conditions on him does not seem related at all to his offense of conviction. Indeed, could those conditions have been imposed if Dupes' prior offense dates back, say, 10 years? 20 years? 30 years? Under this decision, the Second Circuit says yes.
Setting up my own private practice has taken a toll on the time I've had available for blogging. But, I'm back on track now, and hope to fully catch up on all the Second Circuit action within the next week.
United States v. Alatsas, No. 06-CR-473 (JBW), 2008 WL 238559 (E.D.N.Y. Jan. 16, 2008)
Notwithstanding a loss figure of $450,000 and an advisory Guidelines range of 24 to 30 months imprisonment, the Court imposed a probationary sentence based on: (1) Alatsas' substantial cooperation with the Government; (2) the good relationship he had with his wife and three children; and (3) most significantly from a defense perspective, his status as "an ethical entrepreneur except for this one aberrant offense."
A solid argument for counsel representing defendants convicted of financial frauds.
United States v. Abbadessa (Chinnici), No. 06-2398-cr (2d Cir. Jan. 29, 2007) (found here )
What terms did the plea agreement include such that Second Circuit wrote that "[a]s for his sentence, there is some doubt as to whether the appeal waiver in [the] plea agreement waives his ability to challenge the reasonableness of it"?
United States v. Smith, No. 06-2815-cr (2d Cir. Jan. 24, 2008)
Smith was sentenced to 188 months imprisonment for various crack offenses. Prior to sentencing, however, he had asked the court to take into account the disparities beween the Guidelines recommended sentences for crack and powder cocaine offenses, specifically asking the court to "thoughtfully and carefully sentence [Smith] under the powder cocaine guideline instead of the crack . . . base guideline." The sentencing judge noted that he found it "inappropriate that the penalties are a hundred times more for crack than they are for powder," but rejected Smith's position because Congress had said to apply the law differently.
And then along came Kimbrough. Smith, on appeal, maintained that remand is required because the record indicates that the sentencing judge would have imposed a different sentence had it been empowered to do so. And, surprisingly, the Government agreed, as did the Second Circuit. It therefore remanded for resentencing in consideration of Kimbrough and Gall.
United States v. Wood, Nos. CR-88-0723 (CPS), CV-94-4652 (CPS), CV-96-2498 (CPS), CV-02-1678 (CPS), CV-06-2851 (CPS), 2008 WL 163694 (E.D.N.Y. Jan. 15, 2008)
Wood was sentenced to 235 months for his narcotics conviction. On December 17, 2007 he filed a pro se motion after the Sentencing Commission voted to apply the new crack guidelines retroactively. The Court issued an order for the government to show cause why the relief in Wood's motion should not be granted. The Government responded that the relief sought was premature because the new crack guidelines do not become retroactive until March 3, 2008. Not so fast, said the Court: Although a ruling reducing the sentence before March 3, 2008 may be premature, Wood is likely to qualify for resentencing to a term of imprisonment that expires on March 3, 2008, thereby making him eligible for release on that date. Given the substantial likelihood that Wood will be successful on the merits of his motion and the irreparable harm that would result to him if he were to remain incarcerated for a longer period of time than necessary, the government is hereby directed to state its position in writing on Wood's eligibility for resentencing on or before January 22, 2008, and to produce defendant before the undersigned on February 4, 2008, when the motion will be argued.
This is the second in a now growing trickle of retroactivity motions, and the second time an offender likely will be eligible for immediate release upon the effective date of retroactivity. Motions of this sort raise a whole host of questions. From the public's perspective, will the naysayers and politicians who opposed retroactivity use individuals like Wood as poster-boys for the release of convicted felons onto the streets? Will that cause any public backlash? From the prosecutor's perspective, will U.S. Attorneys Offices nationwide be clogged with motions like that filed by Wood that will require responses from individuals who likely were not involved in the original cases? Will they be able to find the files from cases years ago? Can they handle the volume? From the courts' perspective, are the two cases so far identified in the Second Circuit an indication that, to paraphrase Dr. Martin Luther King, judges feel that they are "free at last" from harsh crack guidelines and intend to do something about it? Stay tuned.
United States v. Polanco, No. 02 cr. 442-02 (GEL), 2008 WL 144825 (S.D.N.Y. Jan. 15, 2008)
Maybe I've missed something, but Polanco seems to be the first revisiting of a crack sentence since the Sentencing Commission decided to apply the new crack guidelines retroactively. While the proposed new sentence will not go into effect until the date of retroactivity, Judge Lynch has already said what he intends the new sentence to be: 70 instead of 87 months.
He based it on three findings: (1) the Supreme Court's finding that the Guidelines are no longer mandatory but are only advisory; (2) the Supreme Court's finding that a "sentencing court may take into account its view that the penalties for crack are excessive in relation to those for other similar drugs"; and (3) the Sentencing Commission new and retroactively applied crack guidelines. And, if course, he considered Polanco's personal circumstances, as reflected in the original sentencing record.
Here's Judge Lynch's order (which appears to have been issued sua sponte): Although the Court's authority to reduce Polanco's sentence does not become effective until March 3, 2008, it is not too soon for the Court to prepare to exercise that authority if appropriate, given that the sentencing transcript suggests that Polanco is a likely candidate for such a reduction, and that according to the Sentencing Commission's estimate, reduction of Polanco's sentence to 70 months might result in an expected release date of March 17, 2008. Despite Polanco's apparent eligibility for the maximum authorized reduction, it would not be appropriate for the Court to reduce a defendant's term of imprisonment sua sponte without giving the Government an opportunity to address the issue. Perhaps events since Polanco's sentencing, including but not limited to actions while incarcerated that might show him to be dangerous and not rehabilitated, or information not presentented to the Court at sentencing, will indicate that a reduction in sentence would not be appropriate. Similarly, Polanco himself should have the opportunity to rebut any argument made by the Government, or to submit any information of his own supporting a reduction in his sentence.
Accordingly, the Court hereby serves notice of its intention to reduce defendant Polanco's term of imprisonment to 70 months on March 3, 2008, unless good cause not to do so is shown by the Government before that time, and it is hereby ORDERED that the Government submit any opposition to such a reduction on or before February 11, 2008. Polanco may submit a response to any Government submission on or before February 25, 2008. In view of the potential urgency ofthe situation, these deadlines will not be extended.
Who represents Polanco? What will the Government say in response? Will Polanco be the first crack defendant freed based on the new retroactive crack guidelines?
United States v. Lee, No. 06-5043-cr (2d Cir. Jan. 18, 2008) (found here)
On appeal, Lee claimed that the district court's sentence was procedurally unreasonable because it miscalculated the advisory Guidelines offense level. And the Second Circuit agreed because the district court had made too generalized a finding about the victims. Specifically, it was "concerned that the district court's findings in connection with the vulnerable victim enhancement were not adequately supported by the factual record, and that the court may have engaged in the type of class-based generalizations that we cautioned against in United States v. McCall, 174 F.3d 47, 49 (2d Cir. 1998)." The Second Circuit also was concerned with "the district court's reliance on a double-hearsay statement in the PSR concerning the victim's alleged past sexual victimization as a basis for concluding that she was particularly susceptible to the crimes Lee committed against her." Vacated and remanded for resentencing.
Lee is important, even though it's an unpublished. I've always found the vulnerable victim enhancement to be a little too soft and squishy. Seems the Second Circuit sees things the same way. But, more importantly, the "double-hearsay" issue it identifies indicates that there are at least some limits on the factual information a court may consider a sentencing. Defense lawyers should keep Lee in mind when dealing with sentencings in which extraneous factual material is coming in against a defendant.
United States v. Bowles, No. 06-4319-cr (2d Cir. Jan. 16, 2008) (found here)
The court sentenced Bowles to 87 months imprisonment and lifetime supervised release notwithstanding an advisory Guidelines range of 2 to 3 years supervised release. Bowles then appealed, arguing that the term of supervised release was both procedurally and substantively unreasonable.
The Second Circuit found that the sentence was not procedurally unreasonable. Specifically. the Second Circuit found that in Gall the Supreme Court found that the district court's explanation for a non-Guidelines sentence was adequate. In therefore found that in Bowles' case "the District Court adequately justified the magnitude of the departure." Among other things: (1) the District Court "made clear that the sentence of lifetime supervised release was outside the Guidelines range and explained the departure by noting Bowles' 'strong sexual obsession with children,' problems with alcohol and drug abuse, a limited support network, a proclivity to sexual activities with childen, and a perception that children enjoyed the contact"; and (2) the District Court also "considered the sentence in light of the need for deterrence, punishment, retribution, protection of society, rehabilitation, and what would constitute the 'most appropriate fair, just, and reasonable sentence under the circumstances.'" Additionally, the Second Circuit found (for similar reasons) that the sentence was substantive reasonable.
Bowles is an indication of how the Second Circuit will view non-Guidelines sentences imposed by district courts after Gall -- a deep level of deferrence the judgment and wisdom of the district court. The only issue in Bowles, however, was the term of supervised release. I'll be interested to see how the Second Circuit deals with a case involving a wide variance from the term of imprisonment advised by the Guidelines. While there should be no difference in the legal analysis, imprisonment is fundamentally different than supervised release, and we'll have to wait and see if they are treated the same.
United States v. Day, Docket Nos. 05-4285-cr(L), 06-5737-cr(CON), 06-5820-cr(CON) (2d Cir. Jan. 15, 2008) (found here)
Day's original sentence was reversed and remanded because the district court erroneously believed that the two minimum sentences for his narcotics convicted must run consecutively. On remand, both Day and the Government agreed that "the judgment should be vacated and the case remanded for resentencing because the district court violated Day's right to be present at resentencing, his right to counsel at resentencing, and his right to notice that the court intended to impose an adverse non-Guidelines sentence." You see, my friends, the district court resentenced Day without providing notice to him or his counsel. And, it only provided a written sentencing explanation in the form of a memorandum and order, whivh violated 18 U.S.C. 3553(c)'s requirement that a sentencing judge state "in open court" the reasons for imposing a particular sentence.
As my title indicates, how could this have happened? Does anyone know the back story? The judge on the case is experienced. There must have been crossed wires somewhere. Nevertheless, Day is truly entitled to a new day in court.
United States v. Whitley, No. 05-3359-cr (2d Cir. Jan. 15, 2007) (found here )
Whitley's attorney filed a motion to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967) on the ground that there are no non-frivolous grounds for appeal. The Second Circuit let counsel out of the representation, but just barely.
Specifically, the Second Circuit found that the Anders brief "is minimally sufficient." However, "given the poor quality of the briefing in this matter and [the attorney's] repeated failures to comply with this Court's Anders requirements, she is hereby warned that future failure to properly discharge her duties under Anders may result in sanctions, which could include removal from this Court's Criminal Justice Act Panel."
Have you ever seen the Second Circuit use an opinion (even an unpublished one) to specifically warn an individual attorney?
United States v. Espinoza, Docket No. 05-0711-cr (2d Cir. Jan. 11, 2008) (found here )
The PSR included a 4 level role enhancement in Espinoza's advisory Guidelines range. At the sentencing hearing, his counsel asserted that no role enhancement should be applied but offered no evidence in support of the position. Before imposing sentence, the Court asked if there were any objections or additions to the PSR, and Espinoza stated that he had none. Accordingly, the district court imposed the sentence recommended by the PSR (360 months imprisonment) and, in its written judgment, noted that had adopted the PSR and the PSR's advisory Guidelines recommendation without change.
On appeal, Espinoza contended that his failure to object to adoption of the 4 level role enhancement at sentencing should be excused because district court did not state that at the sentencing hearing that it was indeed applying that role enhancement (it only did so in its written judgment). The Second Circuit, however, found that: It was clear from the arguments and the sentencing range discussed at the sentencing hearing, the PSR's application of the role enhancement to calculate the particular range under discussion, and the District Court's imposition of a sentence within that same range that the District Court had applied the role enhancement in question.
But that doesn't settle it because "while the adoption of the PSR in the written judgment satisfies a district court's obligation to make specific findings, it does not satisfy the additional requirement that the district court, 'at the time of sentencing, . . . state in open court the reasons for its imposition of the particular sentence.'"
The Second Circuit chastised the district court for failing to do so -- "It should have done so irrespective of whether Espinoza lost the ability to challenge the District Court's error on appeal by failing to interpose a timely objection before that Court" -- but found that the district court's failure to do so was not plain error.
United States v. Liriano-Blanco, Docket No. 06-2919-cr (Jan. 2, 2008) (found here)
Liriano-Blanco pled guilty to illegal re-entry charges. The district court declined to impose a non-Guidelines sentence because it believed that it could not do so based on fast-track disparity. But the district court also believed that Liriano-Blanco's sentence could be appealed, actually encouraged appeal so that the fast-track disparity question could be decided by the Second Circuit, and indicated that it would impose a different sentence if the Second Circuit ruled that a non-Guidelines sentence could, in fact, be based on fast-track disparity. The only problem was that Liriano-Blanco signed a plea agreement containing an appeal waiver provision, and no one corrected the district court's misunderstanding at sentencing. The Second Circuit remanded to correct this error.
What's interesting about Liriano-Blanco, however, is what the Second Circuit says about fast-track disparity. We know that the Second Circuit found in United States v. Meija (discussed here) that "a district court's refusal to adjust a sentence to compensate for the absence of a fast-track program does not make that sentence unreasonable." But the Second Circuit acknowledged in Liriano-Blanco that it has never decided the question of "whether the district court has the authority to impose a non-Guidelines sentence in response to the fast-track sentencing disparity if it deems such a reduced sentence to be warranted."
The door is therefore still open in the Second Circuit on fast-track disparity. And, in light of Rita, Kimbrough and Gall, it seems likely that the Second Circuit would ultimately find (when presented with the question) that a district court is authorized to impose a non-Guidelines sentence based on fast-track disparity, and that such a sentence would be reasonable.
United States v. Collazo, No. 06-5236-cr (2d Cir. Jan. 3, 2008) (found here)
The Government appealed the district court's failure to apply a 3 level role enhancement pursuant to U.S.S.G. § 3B1.1(b). The Second Circuit found that, although the Guidelines are no longer mandatory, courts must still calculate and consider the applicable Guidelines range. In Collazo, the district court failed to do so when it didn't consider a 3 level manager/supervisor role enhancement. And, in doing so, it committed procedural error, resulting in a reversal and remand for resentencing.
United States v. Johnson, No. 06-4001-cr (2d Cir. Jan. 3, 2008) (found here)
Johnson is the first post-Kimbrough/Gall remand that I've seen on the question of whether a crack sentence was reasonable. Although the Second Circuit doesn't opine on the reasonablenss of the crack sentence itself, it does remand for consideration of whether it was reasonable, thereby giving the district court another crack at sentencing Johnson. Is this the first in a developing trend of post-Kimbrough/Gall reasonableness remands? Or was it just that the 165 month sentence imposed on Johnson may have been unreasonable in light of his guilty plea to possession with intent to distribute five or more grams of cocaine?
Here are the operative paragraphs from the decision: Defendant-appellant John Johnson pled guilty to possession with intent to distribute five or more grams of cocaine. The District Court sentenced Johnson principally to 156 months of imprisonment. On appeal, Johnson challenges the reasonableness of the sentence imposed upon him.
Without intimating any view on the reasonableness vel non of the sentence imposed by the District Court, we remand this case for plenary reconsideration of the sentence imposed in accordance with the Supreme Court's recent decisions, Kimbrough v. United States, 552 S.Ct. ___ (2007), and Gall v. United States, 552 S. Ct. ___ (2007).
United States v. Griffin, Docket No. 05-4016-cr (2d Cir. Dec. 21, 2007)
An important case involving the circumstances under which the Government can be held to account for breaching a plea agreement.
The Government agreed in Griffin's plea agreement "not to oppose the recommendation that the Court apply the two (2) level downward adjustment of Guidelines § 3E1.1(a) (acceptance of responsibility) and further agree[d] to move the Court to apply the additional one (1) level downward adjustment of Guidelines § 3E1.1(b)." The plea agreement, however, also permitted the Government to "respond at sentencing to any statements made by the defendant or on the defendant's behalf that are inconsistent with the information and evidence available to the government."
That's what the Government did, and that's what got it into hot water with the Second Circuit.
Specifically, in response to Griffin's objections to the PSR, the Government discussed the possible downward adjustment for acceptance of responsibility under U.S.S.G. § 3E1.1 in two separate written submissions. It first noted that "the government is troubled by some of the defendant's objections which seem to raise questions regarding whether the defendant has truly accepted responsibility." The submission continued by stating that "[h]owever, the defendant did timely notify authorities of his intention to enter a guilty plea, thereby permitting the government to avoid preparing for trial and permitting the government and the court to allocate their resources efficiently."
But that wasn't all it said. It made a second submission in response to Griffin's arguments -- permitted by the terms of the plea agreement -- that no relevant conduct was applicable to his sentencing beyond that to which he pled guilty. In that second submission, the Government wrote that "the defendant is attempting to limit his conduct to only that to which he pled guilty," which "leads the government to question whether the defendant has truly accepted responsibility pursuant to U.S.S.G. § 3E1.1(a)." The Government then reviewed the legal framework of a downward adjustment for acceptance of responsibility, concluding: "It is unclear whether the defendant's objections to the inclusion of all the relevant conduct rises to the level of outweighing his acceptance of responsibility. Suffice it to say that the defendant's objections to the relevant conduct raises [sic] questions on the issue of acceptance."
Well, that was just too much for the Second Circuit -- it was "well beyond the pale." According to the Second Circuit: No discussion of an acceptance of responsibility adjustment was solicited by the court. It was not an effort simply to correct an inaccurate representation of relevant sentencing law. Nor did the government merely provide information or evidence in response to any statements by the dedendant. Instead, the government, on its own initiative, warned the court about what it considered to be "troubling" statements by the defendant in his submission to the court in anticipation of sentencing. (Internal citations omitted.)
In a word, the Government breached the plea agreement by encouraging the sentencing court to deny an adjustment for acceptance of responsibility.
The remedy? Two were available: (a) specific performance; and (b) permitting withdrawal of the guilty plea. Since Griffin sought only specific performance, the Second Circuit vacated the sentence and remanded for resentencing. In doing so, it directed that the case be reassigned, fearing that "[i]f the district court were again to deny acceptance of responsibility, there is no way to be certain that the government's breach had no effect on that determination."
Griffin, however, was not a unanimous decision. A dissent was filed. It's conclusions are well-summed up by its introductory paragraph: The majority concludes that this case should be remanded to a new district court judge for specific performance of the government's promise not to object to defendant's request for an acceptance of responsibility adjustment. It does so in the name of preserving the integrity of the plea bargaining process and public confidence in the federal criminal justice system. I agree with my colleagues that courts must be vigilant in holding the government to its promises. I submit, however, that the majority's analysis overlooks a crucial fact in this case -- defendant's own prior breach of the agreement. In my view, remand will seriously undercut the very policy concerns the majority seeks to protect. I therefore respectfully dissent and vote to affirm the judgment.
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