Tuesday, December 03, 2013

2011 Sentence for 1968 Pan Am Hijacking Was Not Reviewable on Appeal

UNITED STATES V. SOLTREN, NO. 12-4755-cr (2D CIR. DEC. 2, 2013) (KEARSE, JACOBS, AND PARKER) (AMENDED SUMMARY ORDER), AVAILABLE HERE

On appeal a second time from the imposition of sentence, this defendant challenged the district court's decision to impose fifteen years' custody with the possibility of parole after five years as procedurally and substantively unreasonable pursuant to Booker.  He pleaded guilty to conspiracy to commit air piracy and kidnapping based upon his participation in the hijacking of a 1968 Pan American Airways flight from New York to Puerto Rico.  He remained in Cuba until returning to the United States in 2009, at which time he was arrested.  The district court first sentenced him to fifteen years' custody without the possibility of parole, which was vacated.  The Court held it was error to impose a sentence that excluded the possibility of parole because it was a benefit that was available for crimes committed in 1968.  Unfortunately for the defendant's second appeal, Booker's appellate standard of review was not.  In pre-Guidelines cases, a sentence may not be reviewed on appeal if it is within the permissible statutory limits and no improper factors were taken into account.  For offenses that pre-dated the Sentencing Guidelines, the Court can only vacate a sentence if founded in part upon misinformation of constitutional magnitude.  Because the sentence was within the statutorily authorized range and the district considered proper factors, it could not be reviewed.

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