Thursday, June 4th, 2009

Timewell Spent

United States v. Timewell, No. 07-4587-cr (2d Cir. June 1, 2009) (Miner, Raggi, Livingston, CJJ)

Here, the circuit held that the district court’s reasons for denying a Crosby remand rendered the sentence procedurally unreasonable. It remanded the case for reconsideration, with instructions.


Gregory Timewell was a major international trafficker in marijuana and hashish. In the late 1990’s, he was prosecuted in the Eastern District of New York, where he cooperated with the government. In 1998, he signed a cooperation agreement, which included a list of his assets that he agreed to forfeit to the government. Three years later, it emerged that Timewell had misled the government about some of his assets – millions of dollars hidden in Switzerland. His explanation was that, at the time of his original cooperation, he believed that the money had been appropriated by one of his associates. He later learned that this was not true, but did not tell the government, a violation of his cooperation agreement. As a result of this, in 2001, he pled guilty to making false statements to the government.

Timewell was sentenced in 2004, before Booker. His offense level was 41: a subtotal of 44, which included a 2-level increase for obstruction of justice based on his concealment of assets, less 3 levels for acceptance of responsibility, which produced a 324-to-405-month sentencing range. The government decided to honor cooperation agreement and made a 5K1.1 motion, urging a “substantial” sentence reduction in light of Timewell’s “extensive” cooperation, which included testimony at a co-defendant’s trial. The court downwardly departed, but only to 275 months’ imprisonment.

The Crosby Remand

In preparation for the Crosby remand, Timewell’s counsel again recounted the scope of Timewell’s cooperation, and also noted that one of Timewell’s co-conspirators received a 120-month sentence. Also before the district court were letters from the government, and a former DEA agent who had debriefed Timewell.

At the Crosby hearing, the assistant again praised Timewell for his forthrightness in cooperating, and noted that a different co-conspirator had received a 180-month sentence with no 5K1.1 motion. The government asked the court to give “serious consideration and weight to the argument” that there should not be a “significant disparity” between Timewell and that co-conspirator.

Despite this, the district court remained concerned about Timewell’s earlier failure to disclose some assets. The court entered an order in October 2007 in which it decided not to resentence Timewell. First, the court found no unwarranted sentencing disparity between Timewell and his co-defendants because, unlike them, Timewell violated his cooperation agreement by failing to disclose assets. The court also took into account that the government typically refuses to file a 5K1.1 motion at all when a cooperator has violated the plea agreement, and noted that it had for this reason imposed a sentence “substantially” longer than it otherwise might have.

The Appeal

On appeal, the circuit vacated that order, and remanded the case with instructions. The court identified five procedural errors in the district court’s approach.

First, the lower court did not “respond directly” to the inquiry “required” by Crosby – whether the sentence would have been “materially different from the sentence originally imposed” had the district court known that the sentencing guidelines were not mandatory.

In addition, the court erred in taking into account what it perceived to be the government’s customary practice of voiding plea agreements whenever a defendant violates one of its terms. There was no evidence before the district court that such a practice existed, and it was procedural error to rest a sentence on a “clearly erroneous finding of fact.”

The district court also erred by increasing Timewell’s sentence based on this supposed “practice” in the first place. “That the government usually voids cooperation agreements upon a breach by the defendant should not be a reason to constrain a district court from giving proper effect to a 5K1.1 letter if the government decides to submit [one] notwithstanding the defendant’s breach.”

Fourth, the court erred in its belief that, absent a 5K1.1 motion, the guidelines would have recommended a life sentence. In fact, the range was 324 to 405. A district court errs when it “makes a mistake in its Guidelines calculation.”

Finally, the court mischaracterized Timewell’s unwarranted disparities argument by including more co-defendants in its analysis than Timewell had proposed as a basis for comparison. The district court included defendants who had been sentenced after Timewell was sentenced, but under Crosby a court considering a remand must limit its decision to the circumstances “existing at the time of the original sentence.”

The circuit remanded the case and directed that the district court consider the Crosby inquiry “without consideration of past practices of the government in regard to the rescission of cooperation agreements.” In addition, if the court decides to revisit the original sentence, it should consider (1) the sentencing disparities among co-defendants; (2) the government’s recommendation of a “substantial” departure from the guidelines “in view of Timewell’s excellent cooperation”; and (3) the factors set forth in § 5K1.1 itself.

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