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April 7, 2005

Did Cianci receive special consideration from the 1st Circuit?

As first noted here last night, the First Circuit has remanded for resentencing under Booker the sentence of former Providence Mayor Vincent "Buddy" Cianci and his associates (see news account here).  I have been sent the full ruling (cut and pasted from the docket sheet):

4/5/05 ORDER entered by Judge Jeffrey R. Howard, Senior Judge Levin H. Campbell, and Senior Judge Norman H. Stahl. After consideration of the supplemental briefs filed by the parties, we vacate the sentences of the three defendants, Vincent A. Cianci, Jr., Frank E. Corrente, and Richard E. Autiello, and remand the action to the district court for resentencing pursuant to United States v. Booker, 125 S. Ct. 738 (2005). We intimate no view as to what sentences should be imposed on remand.  So ordered.

Apparently there is no opinion forthcoming.  This outcome seems most peculiar since it seems Cianci and his associated did not raise Apprendi/Blakely issues at their (pre-Blakely) sentencings, and thus would need to establish plain error to get a remand.  And, recall, that the First Circuit applies the tough plain error standard that requires the defendant to establish prejudice.

Though I have not seen the supplemental Booker briefs filed by the defendants in this case, the government's supplemental Booker brief suggests that prejudice was not a given on the facts of the case.  I have a copy of the government's supplemental Booker brief (which, of course, failed to carry the day) available for download below.

Download governments_cianci_booker_brief.pdf

April 7, 2005 at 03:25 PM | Permalink


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