Saturday, March 13th, 2010

The Liar’s Flub

United States v. Savoca, No. 08-4610-cr (2d Cir. February 25, 2010) (Sack, Parker, CJJ, Goldberg, JCIT)

Defendant Savoca and his brother were both charged in an attempted robbery and shooting. Savoca accepted a plea agreement to a Hobbs Act attempt with a 37 to 46 month range and a “discharge” 924(c) with a mandatory 120-month consecutive sentence, for a total range of 157 to 166 months, including a 3-level reduction for acceptance of responsibility.

After he pled, but before his sentencing, Savoca testified at his brother’s trial and unsuccessfully tried to exonerate him. After the brother’s conviction, when Savoca was sentenced, the district court found that he committed perjury at the trial. It accordingly added 2 levels for obstruction of justice and denied him the 3-level reduction for acceptance of responsibility. With a new range of 183-198 months, the court sentenced Savoca to 190 months, and noted that it would have imposed the same sentence even if the range were lower.

A year later, Savoca filled a § 2255 motion alleging that his appellate counsel was ineffective in failing to follow Savoca’s instruction to file a timely notice of appeal. After a hearing, the district court granted the motion and scheduled a resentencing hearing. The parties agreed that the court could either simply enter an amended judgment from which a notice of appeal could be taken, or conduct a full resentencing. The district court chose not to conduct a new sentencing, noting that Savoca should not benefit from his appellate counsel’s ineffectiveness, there was no change in the law that might affect the sentence, and that, given the offense and Savoca’s history, there was nor reason to revise the original sentence. It therefore entered an amended judgment with the same sentence.

This time, Savoca filed a notice of appeal. But the circuit affirmed. It first found that the district court properly took into account his testimony at his brother’s trial. This was consistent with the obstruction guideline and the district court’s findings on the issue were adequate. The denial of the acceptance of responsibility adjustment was likewise correct. It avoided the “incongruous” finding that Savoca both accepted responsibility and perjured himself as to the same events.

Finally, the court held that a full resentencing was not necessary. On granting the 2255, the district court had the discretion to decide whether any useful purpose would be served in reconsidering the sentence. Given the reasons it cited, the court did not abuse that discretion.

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