September 2009

September 15, 2009:

PerSentencing Law and Policy Blog, Douglas A. Berman:

In what looks to be a long and thoughtful opinion, the Third Circuit today in US v. Arrelucea-Zamudio, No. 08-4397 (3d Cir. Sept. 14, 2009) (available here), has ruled that federal sentencing judges in non-fast-track districts can grant fast-track variances. Here is the start of today's must-read federal sentencing opinion:

In certain federal judicial districts, "fast-track" programs allow qualifying immigrant defendants to plead guilty while waiving, among other things, their appellate and post-conviction rights. In turn, the Government agrees to request a departure from the relevant Sentencing Guidelines range. None of the districts in the Third Circuit is a fast-track district.

Pedro Manuel Arrelucea-Zamudio ("Arrelucea") pled guilty to illegal reentry into the United States, in violation of 8 U.S.C. § 1326(a) and (b)(2). The District Court sentenced him to 48 months’ imprisonment. Arrelucea appeals his sentence, challenging, among other things, the Court’s rejection of his argument for a downward variance based on the disparity in sentencing among immigration defendants in fast-track districts and non-fast-track districts. The Sentencing Guidelines are advisory, and the Supreme Court’s decision in Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558 (2007), has rekindled discussion regarding fasttrack districts and sentencing. The question before us is whether, post-Kimbrough, it is an abuse of a sentencing judge’s discretion to consider varying from the Sentencing Guidelines in a non-fast-track jurisdiction based on the disparity created by lower immigration sentences in fast-track jurisdictions. Prior to Kimbrough we addressed this issue in United States v. Vargas, 477 F.3d 94 (3d Cir. 2007). We take this opportunity to clarify Vargas and expand on the issue in light of the Supreme Court’s recent guidance. We conclude that, under the logic of Kimbrough, it is within a sentencing judge’s discretion to consider a variance from the Guidelines on the basis of a fasttrack disparity.

September 1, 2009:

08-3785-cr United States v. Concepcion - Before: McLAUGHLIN, CALABRESI, and SACK, Circuit Judges. The government appealed an order of the United States District Court for the Southern District of New York (Scheindlin, J.) suppressing evidence obtained pursuant to a wiretap authorized under 18 U.S.C. § 2518. The Second Circuit unfortunately holds that the Government’s affidavit in support of its application for the wiretap set forth facts "minimally adequate" to support the finding that a wiretap was necessary to the Government’s investigation. REVERSED AND REMANDED.

08-4088-cr United States v. Harrington (Main) - B e f o r e : WALKER and WALLACE, Circuit Judges. (Sotomayor was the third judge on the panel at hearing). Christopher Main appealed from an order of the United States District Court for the District of Vermont (Murtha, J.) denying his motion for a reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2) and United States Sentencing Guidelines § 1B1.10, pursuant to which the sentencing ranges applicable to crack cocaine offenses were retroactively reduced. Main had pled guilty under a plea agreement pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C) but asserted that he was eligible for a 3582(c) reduction of his sentence because the 11(c)(1)(C) agreement established a maximum sentence not a term of incarceration or a guideline range. The Second Circuit rejected this argument and AFFIRMED the district court’s judgment.

08-2795-cr United States v. Ray - Before: LEVAL, CABRANES, and LIVINGSTON, Circuit Judges. Shenna Ray appealed from a judgment of the United States District Court for the Eastern District of New York (Thomas C. Platt, Judge), sentencing her, after a fifteen-year delayto a one-day term of imprisonment and three years of supervised release with a special condition that she serve six months in a halfway house. Defendant challenged her conviction and sentence on the grounds that she was deprived of her right to a speedy sentencing under the Speedy Trial Clause of the Sixth Amendment and the Due Process Clause of the Fifth Amendment. Alternatively, defendant seeks a remand for resentencing because, in her view, the sentence serves no rehabilitative purpose and is, consequently, unreasonable. The Second Circuit rejected defendant’s Sixth Amendment challenge reasoning that sentencing and trial are separate and distinct phases of criminal proceedings, and the Speedy Trial Clause applies to trials only, not to sentencing proceedings. The Court did, however, see merit in her Fifth Amendment challenge and held that the fifteen-year delay in the imposition of sentence on defendant is not justified by any legitimate reason and has caused her prejudice insofar as the custodial portion of it threatens to undermine her successful rehabilitation. Accordingly, the Second Circuit VACATED the portion of her sentence requiring a six-month residence in a halfway house in order to remedy the prejudice caused by the violation of her rights under the Due Process Clause. The Court did not reach her "unreasonableness" challenge to the sentence. Affirmed in part, and vacated with respect to the special requirement that defendant reside for six months in a halfway house.