Monday, December 17th, 2007

Not-So-Fast Track

United States v. Liriano-Blanco, No. 06-2919-cr (2d Cir. December 11, 2007) (Walker, Calabresi, Sack CJJ)

In this unusual case, the circuit entertained an appeal despite a waiver. Liriano-Blanco pled guilty to illegal reentry under a plea agreement in which he agreed to waive any appeal of a sentence of 60 months or less, with a Guideline range of 57 to 71 months. At his sentencing, he asked for a below-Guidelines sentence to avoid “the disparity caused by the existence of fast-track programs in other districts.” The district judge was sympathetic to this argument, and agreed that there was an unwarranted disparity. He indicated that he would like to give a four-level downward departure for this, but thought that he was not permitted to. Erroneously believing that Liriano-Blanco could appeal the sentence, the judge invited him to do so: “Hopefully, maybe, the Second Circuit may disagree with me and [I’ll] be able to give a lesser sentence when they send it back.” After an uncontested criminal history departure, the court sentenced Liriano-Blanco to 46 months and, despite the waiver, he appealed.

Here is how the circuit untangled this mess. First, it observed that the ultimate question – whether a district court can impose a non-Guideline sentence in response to fast-track disparities – is still open in this circuit and is not “frivolous,” since its answer is “not a foregone conclusion.” But it decided it could not answer it here, because of the appeal waiver.

But the court very obligingly gave Liriano-Blanco a second bite at the apple, out of its “concern regarding mistaken statements by [the] sentencing judge about the defendant’s right to appeal.” The district court “relied on the possibility of appeal” in choosing a higher sentence, and the AUSA did not correct the judge’s error by pointing out that the appeal had been waived. The circuit concluded that, although it could not decide the case on the merits, there was nothing in the waiver to bar the court from returning the case to the district court so that, “having been made aware that Liriano-Blanco cannot appeal its decision, it might resentence him if it sees fit to do so.”

As for the fast-track question itself, we’ll just have to wait and see.

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