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May 7, 2008

A notable and curious (and suspect?) sentence "correction"

As detailed in this South Florida Sun-Sentinel article, headlined "Judge resentences Iranian woman, gives her 2 years in prison," something seems a little hinky about a federal judge "correcting" a sentence to add two years' imprisonment to an original sentence of time-served.  Here are the details:

Shahrazad Mir Gholikhan, an Iranian woman accused of trying to export night vision goggles, thought her guilty plea last month would be her ticket back to her family. The federal prosecutor had recommended a term of time served for the 30-year-old mother's role in the illegal plot to trade with Iran, a U.S.-designated terrorist nation. U.S. District Judge James Cohn imposed the sentence at an April 25 hearing in Fort Lauderdale federal court.

But on Tuesday that smooth resolution unraveled. Determining the sentence had been a mistake, Cohn extended Gholikhan's prison term from time served to two years and five months. Under the law, federal judges can amend sentences within seven business days that result from "arithmetic, technical, or other clear error."

In Gholikhan's case, prosecutor Michael Walleisa alerted Cohn last week that both sides had calculated Gholikhan's recommended sentence using the wrong federal sentencing guideline. The correct sentencing range should have been 30 to 37 months, Walleisa said. He asserted in a legal brief that a sentence of time served was far too light a punishment for "a national security offense that involved trade with a state sponsor of terror." "Her crime is serious and warrants an appropriately severe sentence," Walleisa wrote.

William Barzee, Gholikhan's attorney, called the resentencing unfair and un-American, saying after the hearing that his client feels like she's back in Iran. "I don't think it's fair to [agree on a sentence] and have someone plead guilty and then come back and ask the court for a do-over," Barzee said in court Tuesday.

Cohn agreed with Walleisa that the sentence should be recalculated using the correct guideline provision. He reduced the sentence from 30 months to 29 because Gholikhan spent one month in an Austrian prison on related charges....

Jonathan Rosenthal, a Fort Lauderdale defense lawyer who teaches sentencing at Nova Southeastern University, said he found a description of Gholikhan's resentencing "troubling" because the guidelines are only one factor judges should consider. "I don't understand how on Monday a sentence of four-and-a-half months is reasonable, but on Tuesday, all of a sudden, that sentence is no longer reasonable," Rosenthal said. "Judges are not supposed to give guidelines any undue weight."

Writing here at the Southern District of Florida Blog, David Oscar Markus is also curious about this sentence correction.

May 7, 2008 at 06:58 PM | Permalink


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I see that broad judicial discretion is to be welcomed -- except, that is, in the very few instances in which it INCREASES the sentence instead of lowering it.

What a surprise!

Posted by: Bill Otis | May 8, 2008 1:25:47 PM

If this isn't evidence of MANDATORY guidelines, I don't know what is. The prosecutor didn't complain (or did he) when he calculated the original sentence.

Posted by: bruce | May 8, 2008 1:27:53 PM

I don't see how it's evidence of "mandatory" guidelines. The sentence imposed was procedurally unreasonable in that the court, and apparently the parties, mis-calculated the guidelines range. The government would surely have prevailed on appeal, but the district court chose to circumvent that tedious process. While the "correction" of the sentence under Rule 35 is a bit irregular, but the same outcome would likely have been reached through the appellate process.

Posted by: Anon | May 8, 2008 2:26:40 PM

Changing a sentence always has its consequence, credibility. When the sentence is the right sentence amongst all previous ones?

Posted by: Bill Butler | Jun 25, 2008 7:12:14 PM

It sounds like she was lured to the United States with the false
promise of a light sentence.

I would bet money that Mr Walleisa had every intention of springing
this surprise on the defendant and the court from the very beginning.

Posted by: Mike Fabregas | Dec 18, 2008 9:57:15 PM

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