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January 19, 2008

Fascinating (and first?) crack retroactivity opinion from SDNY

Thanks to this post from Harlan Protass at the Second Circuit Sentencing Blog, it appears that SDNY District Judge Gerard Lynch earlier this week became the first judge to issue an opinion report revisiting a crack sentence based on Kimbrough and the new retroactive crack guidelines.  Here are snippets of Harlan's effective write-up of the ruling (which goes by United States v. Polanco, No. 02 cr. 442-02 (GEL), 2008 WL 144825 (S.D.N.Y. Jan. 15, 2008)):

While the proposed new sentence will not go into effect until the date of retroactivity, Judge Lynch has already said what he intends the new sentence to be: 70 instead of 87 months. He based it on three findings: (1) the Supreme Court's finding that the Guidelines are no longer mandatory but are only advisory; (2) the Supreme Court's finding that a "sentencing court may take into account its view that the penalties for crack are excessive in relation to those for other similar drugs"; and (3) the Sentencing Commission new and retroactively applied crack guidelines. 

The opinion in Polanco seems to have been issued sua sponte, and it ends with these interesting sentiments and instructions:

The Sentencing Commission has purported to limit the sentencing court's authority to reduce a sentence, emphasizing that, in its view, the reduction authorized by § 3582(c)(2) and the Commission's policy statement "do not constitute a full resentencing of the defendant," and prohibiting a reduction to a sentence "that is less than the minimum of the amended guideline range."  The effectiveness of these limitations is yet to be tested; it would be, to say no more, ironic if the relief available to a defendant who received a sentence that is now recognized to have been unconstitutional because imposed under mandatory guidelines based on non-jury fact findings and unwise because the guideline under which he was sentenced was excessively severe, can be limited by a still-mandatory guideline.

It is not likely, however, that the complex legal issues theoretically presented by the Commission's effort to extend limited relief to inmates in Polanco's situation will be tested in his case. The Commission has notified this Court that Polanco remains incarcerated, and that if his sentence is reduced as authorized by § 3582(c)(2) and the amendment to the crack guidelines, he may well be eligible for release within a matter of weeks following the March 3, 2008, effective date of the retroactivity policy. If this is so, there would be little need to explore the legality of any relief beyond that expressly authorized by the Commission's policy statement; the only question is whether the Court should grant the relief thus authorized.

Although the Court's authority to reduce Polanco's sentence does not become effective until March 3, 2008, it is not too soon for the Court to prepare to exercise that authority if appropriate, given that the sentencing transcript suggests that Polanco is a likely candidate for such a reduction, and that according to the Sentencing Commission's estimate, reduction of Polanco's sentence to 70 months might result in an expected release date of March 17, 2008.  Despite Polanco's apparent eligibility for the maximum authorized reduction, it would not be appropriate for the Court to reduce a defendant's term of imprisonment sua sponte without giving the Government an opportunity to address the issue. Perhaps events since Polanco's sentencing, including but not limited to actions while incarcerated that might show him to be dangerous and not rehabilitated, or information not presented to the Court at sentencing, will indicate that a reduction in sentence would not be appropriate.  Similarly, Polanco himself should have the opportunity to rebut any argument made by the Government, or to submit any information of his own supporting a reduction in his sentence.

Accordingly, the Court hereby serves notice of its intention to reduce defendant Polanco's term of imprisonment to 70 months on March 3, 2008, unless good cause not to do so is shown by the Government before that time, and it is hereby ORDERED that the Government submit any opposition to such a reduction on or before February 11, 2008. Polanco may submit a response to any Government submission on or before February 25, 2008.  In view of the potential urgency of the situation, these deadlines will not be extended.

It will be especially interesting to see if the Government submits any opposition and what its filing, if there is one, will say about broader retroactivity issues.  Whatever the government might say, Judge Lynch's work here confirm my sense that some serious crack March Madness is in the works for the federal courts.

January 19, 2008 at 02:23 PM | Permalink


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I hope this is the first of many, many more to come!!!

Posted by: SentencingConsulant | Jan 19, 2008 2:37:15 PM

I am the sister of a defendent that received 15 years for 1 piece of crack cocaine. He was multi billed because he was stopped twice before with 1 crack cocaine each time. The last time he tryed to sell to a under cover police for a drug dealer sohe could get drugs for his self. He was on tape with the sell, even the police said on the tape that my brother is who they wanted, he is just a crack head. None of this matter in his sentence. They want to try to give him a life sentence. He has no volience crime, he is not a danger to others. He has had two heart attacks since he has been in prison. He has been in jail for 8 years now. Please let me know what he has to do to get the sentence reduction.

Posted by: Joyce Prout | Feb 3, 2008 10:01:19 PM

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