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June 1, 2009

Notable ruling on procedural reasonableness from Second Circuit

The Second Circuit today has a notable ruling in US v. Timewell, No. 07-4587 (2d Cir. June 1, 2009) (available here), that discusses post-Booker review for procedural unreasonableness at some length. Here is hope the opinion starts:

Defendant-appellant Gregory Timewell appeals from a Memorandum and Order entered on October 4, 2007, in the United States District Court for the Eastern District of New York (Platt, J.) denying his application to be resentenced following a remand for further proceedings in conformity with United States v. Crosby, 397 F.3d 103 (2d Cir. 2005). United States v. Timewell, 124 F. App’x 55 (2d Cir. 2005).  Timewell was convicted, upon a guilty plea, of conspiracy to import 1,000 kilograms or more of hashish and marijuana, in violation of 21 U.S.C. §§ 960(a)(1), (b)(1)(G), 963, and of making false statements to federal agents in violation of 18 U.S.C. § 1001.  On March 5, 2004, he was sentenced principally to a prison term of 275 months and a 5-year term of supervised release.  In the Memorandum and Order determining that it would adhere to the sentence originally imposed, the District Court took into account, inter alia, the government’s customary practice of rescinding cooperation agreements breached by defendants.  For the reasons that follow, we vacate the sentence and once more remand for further proceedings.

June 1, 2009 at 12:43 PM | Permalink


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There seems to be an error on p. 21 of the slip opinion, unless I am misreading this. The key sentence reads: "On a Crosby remand, the district court must determine whether its sentence under the Booker regime would have been materially different from the sentence originally imposed; if the answer is 'yes,' nothing further is required; if the answer is
'no,' there must be a resentencing."

That can't be right. If a sentence (following a Crosby-remand) would be materially different under Booker than the one given pre-Booker, then resentencing is necessary - not vice versa as suggested by this sentence. (Indeed, the last sentence in the paragraph says the exact opposite.)

Maybe I am missing something - but I think that sentence is wrong.

Perhaps someone can let Judge Miner know.

Posted by: alex | Jun 2, 2009 3:49:48 AM

I saw the same thing, Alex. I suspect it will be caught by others and the words reversed in a revised opinion.

Posted by: Doug B. | Jun 2, 2009 8:42:04 AM

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