Public Defense

In United States v. Alkhabbaz, No. 09-5271-cr (2d Cir. March 10, 2011), the defendant's original sentence included a reduction for acceptance of responsibility, and the government did not appeal. The defendant was resentenced after a remand, and this time the court denied him the adjustment because, in the interim, he had jumped bail. On appeal, the court held that under the cross-appeal rule - under which "an appellate court may not alter a judgment to benefit a nonappealing party," and thus, in a criminal case, absent a government appeal, the circuit cannot increase a defendant's sentence on its own initiative - the government's failure to appeal the original sentence was not a waiver of the argument that, on remand, he was ineligible for acceptance of responsibility. The cross-appeal rule does not confine the trial court, the doctrines of "default and forfeiture" do. But here the government did not forfeit the issue by agreeing to acceptance of responsibility at the original sentencing, since Alkhabbaz did not skip out until later.

In United States v. Mends, No. 09-5361-cr (2d Cir. March 4, 2011), the court agreed that a sentence to "time served," when the defendant had spent twenty-two months' in prison but the Guideline range was eight to fourteen months', was error. The sentence was, in effect, a "substantial upward departure or variance" that the court did not explain. Notably, the court also found that the issue was not moot, even though Mends had completed both the term of imprisonment and his supervised release, because the length of the sentence "could materially affect his prospects of obtaining a discretionary waiver of inadmissibility" from an immigration judge. This "potentiality" gave Mends a "personal stake" in the outcome of the litigation sufficient to create a "case or controversy" under Article III of the Constitution.

Full post as published by Second Circuit Blog on March 10, 2011 (boomark / email).