Monday, January 27th, 2014

Separate Convictions and Sentences for Two Drug Conspiracy Counts Violated Double Jeopardy

United States v. Moreno-Montenegro, No. 12-3040-cr (2d Cir. Jan. 27, 2014) (Katzmann, Winter, and Calabresi) (summary order), available here

The defendant pled guilty to one count of conspiracy to import heroin into the United States and one count of conspiracy to distribute heroin intending that it would be unlawfully imported into the United States. He was sentenced principally to concurrent terms of 78 months of imprisonment on each count, plus five years of supervised release.

On appeal, the Court held in this summary order that the district court committed plain error under the Double Jeopardy Clause by imposing separate convictions and sentences on both counts. Noting that a single agreement to commit several crimes constitutes one conspiracy, the Circuit found that the defendant in this case entered into only one conspiratorial agreement, albeit with multiple unlawful objects. Thus, he should have been convicted and sentenced for only one conspiracy, not two.

With respect to remedy, the Court rejected the defendant’s request for de novo resentencing. Instead, the Court decided to remand with instructions for the district court to vacate the conviction of one of the two counts and to enter an amended judgment. Presumably, this means that the defendant will still have to serve 78 months in prison. But his appellate victory does carry at least one real-world consequence: instead of having to pay $200 in special assessments ($100 on each count), he will pay just $100.

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