Wednesday, May 24, 2006

Ignore If You Have Something Better to Do

United States v. Hilario, Docket No. 05-3972-cr (2d Cir. May 24, 2006) (Sotomayor, Wesley, Hall) (per curiam): This Blog is puzzled once more by the Court's decision to issue a published decision rather than a summary order in this case (while giving seemingly more deserving appeals the ol' back-of-the-hand summary order treatment). Here, the Court rejects Hilario's two challenges to his sentence (for importing ecstasy), challenges that -- at least as described in the opinion, or unless this Blog is missing something -- seem to straddle the silly-to-frivolous line.

First, Hilario claims that the district court erred because it departed downward by only 26 months to account for the 26 months that he previously spent in a Belgian jail for a "related offense." Hilario claims that the court should have departed downward by an additional 4 months because he "might have earned [the 4 months as good-conduct credit] had he served his 26-month Belgian sentence in [a] federal prison" rather than a Belgian jail. Op. 2. The Court rejects this argument by pointing out that "good-time credit earned by a defendant is determined by the BOP based on a prisoner's behavior while incarcerated in a BOP-controlled environment" and "Hilario was previously incarcerated in a foreign jail" not run by the BOP. Id. [Of course, one wonders why the Court did not simply say, "You got 26 months 'credit' for the 26 months you served. Why should you get any more credit?" Maybe we are missing something.]

Second, Hilario claims that the district court should've given him a lower sentence under Section 3553(a)(6) because of the "possibility," based on "anecdotal evidence and past experience," that a co-defendant "might be transfered pursuant to treaty to Belgium ... and may receive a lesser sentence than he would for the same conduct in the United States." Op. 3. The Court rejects this argument by pointing out that, even assuming that co-defendant disparity could be considered under § 3553(a)(6) (once again leaving this question open), the district court considered Hilario's argument and its refusal to give a lower sentence on this basis was not an abuse of discretion. Op. 3-4. This was especially so given that Hilario's argument was "wholly speculative" and not based on any facts in the record. Id.

Readers are welcome to suggest in the "Comment" section what this Blog has missed.

16 Comments:

Anonymous Anonymous said...

The panel probably issued a per curiam because there was no Second Circuit precedent on the good-time credit issue. Even though the issue is easy, the only citation the Court had was to a Seventh Circuit case discussing good time credit for time served in state prison. Without binding precedent, the Court isn't *supposed* to issue summary orders, so the panel just went along with the reasoning of the Seventh Circuit in an analogous case -- per curiam is the appropriate vehicle for this.

May 25, 2006 at 12:33 PM  
Blogger Yuanchung Lee said...

I understand. But does one NEED a precedent to say that "because you actually served only 26 months on the related case, you only get a 26-month 'credit' on this sentence"? I must be missing something, but the appellant's good-credit argument simply makes no sense to me. And rejection of an illogical argument needs no citation to authority.

May 25, 2006 at 1:18 PM  
Anonymous Anonymous said...

Several comments from one fo the attorneys representing the Appellant:
1. if there is anything "silly-to-frivolous" about this case it is the Commentators comments. I think that what is "silly-to-frivolous" are the Commentattors NY Post-like headings for the case comments.
2. The argument for credit was based on the language of Sec. 3624(b)(1), which grants "good time" as a "right" to which the inmate is entitled, not something that BOP can arbitraily give or not.
3. USSG 5K2.23 was cited to the Court as a basis for a "downward departure" of 30 months. Read the section, please, then criticize.
4. The district court judge , it was arguded did not take the aforementioned Guideline section into consideration, as she should have under 3553(a).
5. Regarding the "disparity" argument, the Commentator acknowledges that the issue is one unresolved p[rior to Hilario, and still is. So, why as appellate counsel is such an argument "frivolous"?

June 8, 2006 at 2:29 PM  
Blogger Bernie Kleinman said...

Several comments from one of the attorneys representing the Appellant:
1. if there is anything "silly-to-frivolous" about this case it is the Commentators comments. I think that what is "silly-to-frivolous" are the Commentators NY Post-like headings for the case comments.
2. The argument for credit was based on the language of Sec. 3624(b)(1), which grants "good time" as a "right" to which the inmate is entitled, not something that BOP can arbitraily give or not.
3. USSG 5K2.23 was cited to the Court as a basis for a "downward departure" of 30 months. Read the section, please, then criticize.
4. The district court judge , it was argued, did not take the aforementioned Guideline section into consideration, as she should have under 3553(a).
5. Regarding the "disparity" argument, the Commentator acknowledges that the issue is one unresolved prior to Hilario, and still is. So, why. as appellate counsel, is such an argument "frivolous"?

June 8, 2006 at 2:32 PM  
Blogger Yuanchung Lee said...

Apology if I offend. But a not-infrequent flip remark is the price of admission.

I maintain, still, that the Circuit's formula for determining which decision will be issued as a published opinion rather than a summary order is hard to divine.

June 9, 2006 at 8:25 PM  
Blogger Bernie Kleinman said...

Counselor Lee, I accept your apology, and, I agree, criticism in the price of admission. Regarding which decisions the Circuit chooses to publish, as you likely know, beginning soon ALL opinions will be, if not published, certainly citable in other cases. The 2d Cir. position of only allowing certain opinions to be published is, I think, in error. If a decision is not reasoned, and well thought out [i.e., can be relied upon in future cases] then, perhaps, it should not be issued at all.

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