Tuesday, January 4th, 2011


United States v. Preacely, No. 09-2580-cr (2d Cir. December 21, 2010) (Raggi, Lynch, Wallace, CJJ)

In this unusual, three-opinion decision the majority remanded for resentencing, finding that the record was ambiguous as to whether the district judge understood his departure authority.


Jamar Preacely pled guilty to a five-year-mando crack conspiracy pursuant to a cooperation agreement. Twenty-seven years old when he was arrested, he had sustained several drug convictions when he was younger, and was categorized by the Sentencing Guidelines as a “career offender.”

He spent about two years in custody on the federal case, then was released on bail. For the next three years, it seems, Preacely turned his life around. He entered and excelled at several rehabilitation programs, stopped using drugs, and actively cooperated in several criminal investigations.

At sentencing, as a career offender, he faced an offense level of 31 and was automatically placed in criminal history category VI, with a sentencing range of 188 to 235 months. Despite a very strong government § 5K1.1 motion and the vigorous arguments of his counsel, the district court sentenced him to 94 months’ imprisonment.

Judge Wallace’s Opinion

A two-judge majority vacated the sentence. For his part, Judge Wallace found that the record was unclear whether the sentencing judge understood that he had the authority to depart “horizontally” from Category VI, even though the record made clear that the judge understood that he could downward depart in other ways.

What concerned Judge Wallace was that the judge repeatedly harped on the fact that Preacely was in category VI, and made it seem as if he did not understand that career offender treatment was not mandatory. For example, after hearing a summary of Preacely’s extraordinary rehabilitation, the judge answered: “I am dealing with a Category VI career offender, regardless of all of what you said.”

The Circuit remanded so that the district court could expressly consider departing from career offender treatment based on “an individualized consideration” of Preacely’s case.

Judge Lynch’s Opinion

Judge Lynch concurred, citing the same ambiguity in the record. The sentencing court was required to consider both Preacely’s evidence of rehabilitation and his designation as a “category VI” offender, not merely the latter. Judge Lynch also added some interesting language about the severity of career offender treatment, calling the resulting sentence here “distinctly inflated”: “[E]ven for a man with a history of multiple (if mostly minor) criminal convictions (almost exclusively tied to the possession and sale of narcotics), a sentence of nearly sixteen years in prison for the possession of a few thousand dollars worth of cocaine seems remarkably severe.”

Judge Raggi’s Opinion

Judge Raggi dissented because she did not see the any ambiguity in the record. The district court “frequently – and correctly – … put Preacely in Category VI because he qualified as a career offender.” Moreover, the district court “manifested an understanding of its complete discretion to sentence outside the Guidelines.” Even if there were an ambiguity, however, Judge Raggi would have remanded for “clarification,” not for resentencing.

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