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: Second Circuit Sentencing Blog

Failure To Consider 15 Years Of Rehabilitation Is Procedural Error On Resentencing

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United States v. Hernandez, Docket No. 09-1421-cr, 2010 WL 1780364 (2d Cir. May 5, 2010)

Remember United States v. Ray? That was the case in which the Second Circuit declared that a fifteen year delay in re-sentencing violated a defendant's right to speedy sentencing.

Hernandez is similar in that there was also a fifteen year delay between a remand for re-sentencing and the actual re-sentencing. In reversing and remanding for re-sentencing yet again, though, the Second Circuit did not rely on Ray and the speedy sentencing principle (perhaps because Ray was decided after briefing on Hernandez's appeal). Rather, it relied on the district court's procedural error in failing to consider Hernandez's intervening rehabilitation (and took the unusual step of remanding the matter to a different district court judge for re-sentencing). As described by the Second Circuit:

Defendant-appellant Hector Hernandez appeals from a judgment entered in the United States District Court for the Eastern District of New York (Platt, J.) in 2009, which re-imposed a 405-month sentence of incarceration after remand from this Court back in 1993. The record indicates that the district court evidently started with an assumption -- invalid after so long an interval -- that the baseline for the re-sentencing was the sentence imposed in 1991, and thereby failed to properly consider the factors set out in 18 U.S.C. § 3553(a) -- particularly Hernandez's submission of evidence of rehabilitation -- at the time of re-sentencing. Accordingly, we vacate and remand for re-sentencing before a different district court judge.

Full post as published by Second Circuit Sentencing Blog on May 06, 2010 (boomark / email).