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November 28, 2007

Second Circuit finds problem with upward enhancement

Harlan Protess at the Second Circuit Sentencing Blog has this speedy coverage of what he calls a "Major Relevant Conduct Decision By The Second Circuit."  Here is how Harlan describes today's work by a panel in US v. Juwa, No. 06-2716 (2d Cir. Nov. 28, 2007) (available here):

Notwithstanding an advisory Guidelines range of 24-30 months for a guilty plea to one count of possession of child pornography, Juwa was sentenced to 90 months imprisonment.  In declaring its reasons for the upward departure, the district court cited the fact that Juwa had engaged in sexual conduct with a minor "on repeated occasions."  Yet Juwa had only indicated his intent to plead guilty to one count of felony sexual abuse in a parallel state case. It was therefore unclear to the Second Circuit to what extent the district court impermissibly based its sentencing enhancement on unsubstantiatied charged conduct, thereby rendering the 90 month sentence procedurally unreasonable. The Second Circuit ordered a reversal and remand.

I hope to have more on this decision once I get a chance to read it.

UPDATE:  Though I was hoping for more from Juwa given its strong panel, the decision has some useful (though tepid) language about a "a defendant's due process right to be sentenced based on accurate information."  What really makes the case interesting are its notable facts and dyanmic issues of federalism, victims rights, and prosecutorial discretion that are entirely avoided by the written opinion.

November 28, 2007 at 11:46 AM | Permalink


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So i take it, if they didnt mention anything about those other charges and gave him the 90 months. it would have been acceptable? but since they did mention those charges as part of the reason then its not acceptable? gee leave it wide open for a way to get around it next time.

Posted by: Mark | Nov 29, 2007 1:17:01 AM

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