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May 5, 2010

Second Circuit finds procedural problems with re-sentencing after 15-year delay

They say bad facts make bad law, but today's ruling from the Second Circuit in US v. Hernandez, No. (2d Cir. May 5, 2010) (available here), strikes me as an example of ugly facts resulting in a very sound sentencing ruling. Here is how the panel opinion starts in Hernandez:

Defendant-appellant Hector Hernandez appeals from a judgment entered in the United States District Court for the Eastern District of New York (Platt, J.) in 2009, which re-mposed a 405-month sentence of incarceration after remand from this Court back in 1993. The record indicates that the district court evidently started with an assumption -- invalid after so long an interval--that the baseline for the re-sentencing was the sentence imposed in 1991, and thereby failed to properly consider the factors set out in 18 U.S.C. § 3553(a) -- particularly Hernandez’s submission of evidence of rehabilitation--at the time of re-sentencing. Accordingly, we vacate and remand for re-sentencing before a different district court judge.

May 5, 2010 at 11:52 PM | Permalink


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very nice but the new lawyer he has is an idiot. He missed the BIG PICUTRE. This guy has been in legal limbo for 15 friggin years. Technically and legally since the first sentencing was revoked LEGALLY he's never been senteced. So the u.s govt has ILLEGALLY HELD him for 15 years. Sounds to me like the govt should have had brains enough to give time served. Since the individual has grounds for one MAJOR lawsuit if not the impossiton of CRIMINAL CHARGES for illegal detention.

Posted by: rodsmith | May 6, 2010 10:00:16 AM

Um, Rodsmith... First, revoked is the wrong word. You mean vacated. Second, the sentence was 34 years, of which he has only served about half so far, so time served is a stretch. Third, the initial remand was only on the discreet issue of fact-finding about a 4-level enhancement, so this isn't a case where the entire sentence was in play. So, yes, the delay is inexcusable, but it isn't like the guy would have gotten probation in the first place.

Posted by: lawyer | May 6, 2010 2:54:05 PM


Thank you for the explanation in the English. Posts like yours are very much appreciated by this non-lawyer.

Posted by: George | May 6, 2010 3:43:21 PM

horse pucky! you can still all the legal terms on it you want. Basically they have had him locked up for 15 years WITHOUT a LEGAL SENTENCE. Nothing else matters at this point.

Doesn't matter what he WOULD have been sentenced to in 1993. It DIDN'T happen. Instead they lost the papers and just left him locked up. Becasue he is a slese-ball criminal it's no-harm/no foul ? sorry the law isnt' supposed to work that way and i KNOW the constiution isn't At the very least considering that until the trial and sentencing is complete the trial isn't finished there would be at least an issue of a speedy trial! sorry you cant' leave someone in limbo for over a DECADE and think what your doing is in any way LEGAL.

as for the word "revoked" revoked; vacated, aquitted. they are all the thing. IT DIDNT' HAPPEN! if so then any confinment is illegal.

Posted by: rodsmith | May 6, 2010 4:33:08 PM

if they had resenteced him in 1993 they would have been safe. if once the big time SCREW UP had been discovered they had bitten the bullet and realized what a fuck up it was and cut their losses and given time served. Again they also would have been safe because i'm sure he would have taken it and moved on. But no they have to be smart asses and now they are probalby on their way to the supeme court again along with a nice civil rights case.

Posted by: rodsmith | May 6, 2010 4:35:08 PM

rodsmith: think of it as pretrial confinement. You are still in jail even though you haven't been sentenced yet. If the circuit had vacated the CONVICTION, then yes, I would share your rage. But he gets credit for all the time he has served so he ends up not getting hurt here UNLESS the new sentence would be shorter than what he has already done -- in which case there is a serious issue about the court's actions and the resulting delay.

More importantly, this is the second case in the last few months where there was a 15-year delay in sentencing in this Circuit (US v. Ray from back in November being the other). While the Ray case involved a defendant who was out on bail and never got sentenced in the first place, it just seems like it might be time to send a memo around.

Posted by: lawyer | May 6, 2010 6:10:15 PM

i still say horse hockey! you can't legally leave someone in limbo for decades in this country. AT least not till the nuts took over in 2001!

Posted by: rodsmith | May 7, 2010 3:51:09 AM

which if i'm not mistaken happend only a few years BEFORE the govt discovered what a MESS THEY HAD!and then tried to bury it!

Posted by: rodsmith | May 7, 2010 3:52:16 AM

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