Saturday, January 21st, 2012

Summary Summary

The circuit consistently produces summary orders that are worthy of note. Here are the most recent three:

In L.M. v. United States, No. 10-371-cr (2d Cir. January 17, 2012), the court vacated the sentence that Judge Platt imposed on a cooperator. The facts of the case are truly exceptional. The defendant cooperated for seventeen years, brought down “a number of large-scale international drug dealers, and received several “credible threats of violence.” The government, in its 5K1.1 motion, characterized him as “unique[].” L.M. also underwent an “admirable personal transformation” during this period. Nevertheless, with “little explanation” the district court gave him a-year-and-a-day in prison. The circuit found that the sentence was procedurally unreasonable because it was insufficiently explained. It was “particularly troubling” court did not even mention L.M.’s long period of rehabilitation. The court stopped short of finding that the sentence was substantively unreasonable, calling that a “thorny issue,” but did remand the case under Jacobson, which means that if L.M. appeals again, the case will go back to the same panel.

In United States v. Swint, No. 11-66-cr (2d Cir. January 4, 2012), the court rejected the government’s appeal of a § 3582(c)(2) sentence reduction in a crack case. Although the defendant had met the career offender criteria, it was clear that the district court sentenced him based on the crack cocaine guidelines and not the career offender guidelines. This decision was under Amendment 706, not Amendment 750, which might well preclude reductions in such cases. But, following its own decision in Rivera, the court held that the new version of 1B1.10 does not apply retroactively.

In United States v Murph, No. 10-1555-cr (2d Cir. December 19, 2011), the court remanded a sentence for the correction of various clerical errors, one of which might affect the length of the sentence. The district court failed to identify the four co-conspirators that served as the basis for an aggravating role enhancement. The circuit used the Jacobson procedure to send the case back for findings.

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