United States v. Tesoriero, Docket No. 04-2017 (2d Cir. June 28, 2005): The Government is apparently still quite sore about Crosby (and likely even more so about Fagans) and its holding that all plain-error cases pending on direct review must be remanded to the district court for a determination of whether the defendant’s “substantial rights” (in plain error parlance) were affected by the Booker error (i.e., the use of mandatory Guidelines). In this case, the defendant was sentenced to the 10-year statutory minimum for a § 841(b)(1)(A) offense at the pre-Blakely sentencing, despite the fact that he cooperated with the Government and earned a § 3553(e) / 5K1.1 motion as a result. Defendant sought a Crosby remand on appeal and the Government opposed, citing United States v. Sharpley, 399 F.3d 123 (2d Cir. 2005), and arguing that because the defendant received the statutory minimum sentence, any Booker error in treating the Guidelines as binding was harmless. The Circuit disagreed and ordered a Crosby remand, distinguishing Sharpley on the ground that the Government filed a § 3553(e) motion on Tesoriero’s behalf and thus that the sentencing judge was no longer bound by the 10-year minimum.
This case serves as an excellent rebuttal to the Government’s claim that a Crosby or Fagans remand is unnecessary in a particular case because the Booker error was harmless. (One would have thought that such arguments were foreclosed by Crosby and especially Fagans, which explicitly did not undertake a harmless error analysis but simply remanded for resentencing). This is so because the sentencing judge here, in light of the substantial assistance motion filed by the Government, was not bound by either the statutory minimum or the Guidelines when s/he nonetheless imposed the 10-year sentence. Thus, if the Booker error is not harmless even in this context, it is hard to imagine a situation (outside of the one presented in Sharpley) in which the Court would find a Booker error harmless.