Criminal Law
: Third Circuit Blog"Departure" or "Variance," that is the Question
By Candace Hom, Melinda Ghilardi, Nancy Rimmer, Sarah Gannett, Renee Pietropaolo and Tieffa Harper (all)
District courts must speak clearly before striking with a big stick, the Court reiterates in United States v. Brown, No. 08-1221, vacating a child pornography sentence when the record left ambiguous whether the district court had "departed" upward pursuant to a Guidelines application note or "varied" upward on the basis of its own statutory sentencing discretion. The remand follows the Court?s construction of the application note in a manner favoring the defendant.Reaffirming that punctilious care in Guidelines calculations is essential even under an advisory regime ? an approach from which the Second Circuit recently endorsed exceptions (opinion here) ? the Court reminded that it "expressly distinguish[es] between departures from the guidelines and variances from the guidelines...continue to full post
Full post as published by Third Circuit Blog on August 28, 2009 (boomark / email).
Upward Variance Presumed Reasonable
US v. Limon, No. 07-1297, 4/3/08 - Upward variance for defendant who went on a bank robbing spree in which he used firearms affirmed...
MA Appeals Court Finds Property Owner Failed to Exercise Rights Under Variance Sufficient to Prevent its Lapse
The Town granted Paul Cornell a variance to subdivide a parcel into two lots. After more than a year, Cornell applied for a building permit...
Irizarry: 32(h) does not require notice of contemplated variance
In Irizarry v. U.S., No. 06-7517 (June 12, 2008), the Supreme Court held that Fed...
Five-month Variance Affirmed
US v. Duarte-Hurtado, No. 08-2021, 2008 WL 4417197 (10th Cir. 10/1/08)(unpublished): Clearly this was a hard-fought case at every level, but, rejecting the defendant's arguments that a lower sentence was warranted, the Tenth affirms the five-month variance to 36 months (from 41) for a reentry defendant...
Valdes: No reasons for extraordinary variance
In U.S. v. Valdes, No. 06-15951 (Sept. 18, 2007), the Court vacated a 108-month sentence, which exceeded the 41-51 month range of the PSI, and the 57-71 month range urged by the government...
NY Appellate Court Says Failure to Name Applicant in a Lawsuit Challenging Granted Use Variance was Fatal
In protracted litigation following the granting of a use variance by the NYC Board of Standards and Appeal (BSA) to allow 160 Imlay Real Estate (Imlay) to change the use of a building in an M2-1 zoning district which permits manufacturing, commercial and retail use, to permit a residential use...
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