Double-Counting in Reentry Cases Still OK
United States v. Algarate-Valencia, ___ F.3d ___, 2008 WL 5401415 (10th Cir. 2008)
After submitting a lengthy sentencing memo, defense counsel asked to speak at sentencing. The judge said “you have 30 seconds.” Counsel spoke, quickly. After the judge pronounced sentence and did not address the grounds Defendant raised for a variance, the government asked the judge to make findings on Defendant’s variance grounds. The judge had an interesting retort: “I’m not going to do that.”
Issue 1: cutting counsel short on allocution. Court: plain error because no objection to the limitation!!! Under plain error, no showing that the time limit affected D’s substantial rights–that there were more or different arguments to be made than what was on paper. Issue 2: not addressing the variance grounds. The court acknowledges this would have been futile given the judge’s retort, so harmless error (not plain error) review (shouldn’t the same futility analysis have applied to the 30 second limit, in that the judge’s attitude permeated the entire proceeding?). On the merits, the COA rules that while less than ideal, what the judge said was adequate. Apparently nothing equals something, and one wonders why bother with procedural objections.
Given all this, the third issue: substantive reasonableness challenge of the low end of the guideline. The Court reaffirms that it is not improper double counting to assign criminal history points for the same prior that aggravates the reentry GL under 2L1.2.
After submitting a lengthy sentencing memo, defense counsel asked to speak at sentencing. The judge said “you have 30 seconds.” Counsel spoke, quickly. After the judge pronounced sentence and did not address the grounds Defendant raised for a variance, the government asked the judge to make findings on Defendant’s variance grounds. The judge had an interesting retort: “I’m not going to do that.”
Issue 1: cutting counsel short on allocution. Court: plain error because no objection to the limitation!!! Under plain error, no showing that the time limit affected D’s substantial rights–that there were more or different arguments to be made than what was on paper. Issue 2: not addressing the variance grounds. The court acknowledges this would have been futile given the judge’s retort, so harmless error (not plain error) review (shouldn’t the same futility analysis have applied to the 30 second limit, in that the judge’s attitude permeated the entire proceeding?). On the merits, the COA rules that while less than ideal, what the judge said was adequate. Apparently nothing equals something, and one wonders why bother with procedural objections.
Given all this, the third issue: substantive reasonableness challenge of the low end of the guideline. The Court reaffirms that it is not improper double counting to assign criminal history points for the same prior that aggravates the reentry GL under 2L1.2.
posted by Anonymous at 10:34 AM
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