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September 10, 2008

Ninth Circuit discusses lots of sentencing issues

Though not full of groundbreaking stuff, the Ninth Circuit's lengthy decision today in US v. Waknine, No. 06-50521 (9th Cir. Sept. 10, 2008) (available here), covers lots of important modern sentencing issues.  Here is how the opinion starts:

Hai Waknine appeals his sentence of 121 months of imprisonment and $646,000 in restitution payments imposed by the district court after he pleaded guilty to one count of racketeer influenced and corrupt organizations (“RICO”) conspiracy, in violation of 18 U.S.C. § 1962(d), for laundering proceeds by embezzling from the Tel Aviv Trade Bank and brokering loans through extortion.  He argues that (1) the government violated the plea agreement by not orally recommending at the sentencing hearing a 108-month prison term pursuant to the plea agreement, (2) the district court violated Rule 32 of the Federal Rules of Criminal Procedure by not giving the government an opportunity to speak at the sentencing hearing, (3) the district court committed procedural error by not considering the 18 U.S.C. § 3553(a) factors before imposing his sentence, and (4) the district court erred in its restitution calculation.  Waknine also asks us to remand this case to a different district judge.  We have jurisdiction under 28 U.S.C. § 1291. We conclude that there was plain error in the sentencing, and we therefore vacate the sentence, and remand with instructions for the district court properly to calculate the United States Sentencing Guidelines range, to discuss the 18 U.S.C. § 3553(a) factors in rendering sentence, and to comply with Rule 32 of the Federal Rules of Criminal Procedure by permitting each party to be heard before announcing the sentence.  We also vacate the district court’s restitution order, and remand for recalculation and explanation of restitution payments.  Finally, we reject Waknine’s request for a new sentencing judge.

September 10, 2008 at 12:58 PM | Permalink


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