Appellate Law

CA1: First bends to affirm enhanced sentence because of unresolved conduct and non-noticed conduct

By S. COTUS

US v. Politano, No. 06-2342 affirms an upward Booker variance.  Applying Gall v. United States, 128 S. Ct. 586, 597 (2007); and United States v. Martin, No. 06-1983, 2008 WL 748104, at *4-5 (1st Cir. Mar. 21, 2008) (our coverage here), the First takes the District Court?s word that unlawfully dealing firearms is a ?very serious? offense.  (Strangely, the District Court didn?t give examples of ?not so serious offenses.?) The First then concludes that the District Court can take into effect local conditions for its 3553(a)(2)(B) analysis.  So, essentially, the newspapers get to write sentencing policy.

But, it gets better.  There were ?unresolved? cases in state court.  The District Court relied upon them to ?enhance? the sentence because the guidelines couldn?t take into account ?unresolved? conduct.  The First says, ?okay.?

As to the claim that there was a lack of notice and the defendant was blind-sided, since the First likes sending people to jail, the First blows off the argument with:

The district court in this case simply considered and applied those factors to this case. Nothing in the district court's discussion of these factors indicates that they are beyond the scope of what reasonably prepared counsel should have been prepared to argue.

Then it drops a footnote that says:

With respect to the consideration of Politano's criminalhistory, even under Rule 32(h), notice is only required for thosegrounds not identified in the PSR or one of the party's prehearingsubmissions. Fed. R. Crim. P. 32(h). Politano's criminal historywas clearly outlined in the PSR and counsel admits to being "wellaware of Mr. Politano's record and the potential effects it couldhave on the sentence.

Full post as published by Appellate Law and Practice on April 03, 2008 (boomark / email).