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April 12, 2007

Admitting a parsimony problem

Thanks to this post at AL&P, I see an interesting admission by the government of sentencing error in the unpublished disposition in US v. Rosa, No. 06-2408 (2d Cir. Apr. 11, 2007) (available here).  Here is the full text of the Rosa opinion:

Defendant-Appellant David Rosa appeals from the 10-month sentence of incarceration imposed on him following his third violation of supervised release.  The Government concedes that remand is necessary because the District Court made statements inconsistent with the “parsimony clause” in 18 U.S.C. § 3553(a) — that is, the statutory mandate to “impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in” 18 U.S.C. § 3553(a)(2).  We do not reach the question of whether a 10-month sentence for appellant’s violation is substantively reasonable.

I wonder what exactly the district court said.

UPDATE: A helpful reader sent me the problematic section of the transcript from the Rosa sentencing hearing.  It can be downloaded below, and here's one key sentence from the Judge describing the 10-month sentence being imposed: "It's harsher than was anticipated by him or you, and maybe a little more than needed...."

Download rosa_sent_excerpt.pdf

April 12, 2007 at 01:33 AM | Permalink

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» CA2: the parsimony provision does matter, afterall from Appellate Law
So parsimony does matter after all. SLP analyzed the lack of attention paid to the parsimony clause of 18 U.S.C. § 3553(a)(2) here, here, here, and here. But, an alert reader points to today's unpublished decision in U.S. v. Rosa, [Read More]

Tracked on Apr 12, 2007 12:33:10 PM

Comments

On 4-12/-2007, Government lost its appeal in U.S. v. Larry Anderson Jr. in U.S. CA5 cause no 06-40732, where though U.S.S.G.'s TOL were calculated to 30-37 months, CA5 upheld district court's sentence of 8 days time served and Supervised Release Term of 36 months on conditions of 30 months of home confinement with electronic monitoring for first 12 months.

Posted by: Joseph A. Connors III | Apr 12, 2007 11:41:10 AM

It is hard to imagine a better basis for a 3553(a)(2) appeal.

Alas, the case will be remanded to the trial judge who will now be permitted to cover his tracks.

One of the most pernicious rules of appellate law is that cases involving error in a discretionary matter like sentencing a remanded to the judge who got it wrong the first time.

Posted by: ohwilleke | Apr 12, 2007 1:16:50 PM

I tip my hat to the government for very wise appellate strategy here. Their concession avoided publication of the first major appellate opinion giving teeth to the parsimony provision. Instead, all this case produced is a vague summary order; and on remand the judge can either reduce the sentence or retract his statement that the sentence was too harsh.

That's a shame for defense counsel who continue to rely on the parsimony command on reasonableness appeals, but you have to admire the government's clever concession.

Posted by: Section 3553(a) | Apr 12, 2007 1:52:09 PM

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