United States v. Stewart

December 28, 2009

I posted a few weeks ago regarding the Second Circuit’s decision to require resentencing in the Lynne Stewart case.  A few days ago, the same panel amended that opinion.  As I understand it, the thrust of the change is to add an emphasis on the potential applicability of the terrorism sentencing enhancement.  In any event, here is the key passage regarding the impact of the court’s order:

A district court’s failure to find particular facts will in no way impede our review in some, perhaps in most, situations; this, however, is not one of them. Especially in light of the absence of a finding that Stewart did not commit perjury at trial or otherwise obstruct justice, we think it preferable not to determine whether her sentence was substantively reasonable.

We therefore remand this matter to the district court for resentencing, in the course of which we direct the court to determine the issue of perjury and if it finds such perjury, to resentence Stewart so as to reflect that finding. The district court should also consider whether Stewart’s conduct as a lawyer triggers the special-skill/abuse-of-trust enhancement under the Guidelines, see U.S.S.G. § 3B1.3, and reconsider the extent to which Stewart’s status as a lawyer affects the appropriate sentence. Finally, the district court should further consider the overall question whether the sentence to be given is appropriate in view of the magnitude of the offense, which the court itself has explicitly recognized. Although we do not preclude the district court’s election to continue to impose a non-Guidelines sentence, we do require that such a sentence, selected after the reconsideration we have directed, begin with the terrorism enhancement and take that enhancement into account. We have serious doubts that the sentence given was reasonable, but think it appropriate to hear from the district court further before deciding the issue.

We have identified actions taken or not taken by the district court in imposing sentence that we conclude constituted procedural error and thus require resentencing. Other issues are raised by Judge Walker, who finds that they resulted in procedural error and substantive unreasonableness, and addressed by Judge Calabresi in response. To the extent we did not discuss or rule on those issues in this majority opinion, our silence should not be construed by the district court, or by others relying on this opinion, to mean that the majority has adopted Judge Calabresi’s views or rejected Judge Walker’s. We have not.

Although we find no procedural or substantive error in connection with the sentencing of Sattar and Yousry, we nonetheless remand their cases, too. We conclude that, inasmuch as the interrelationship among the sentences of the co-defendants is a principal consideration as to a proper sentence of Stewart, the district court should have the ability, if not the obligation, to resentence them as well.

After the district court completes the resentencing, jurisdiction may be restored to this Court by letter from any party, and the Office of the Clerk of this Court shall set an expeditious briefing schedule and refer the matter to this pan el for further review.

2. United States v. Abdulmutallab (E.D. Mich. Dec. 26, 2009)

Click here for the DOJ press release describing initial charges in the Christmas Day attempt to destroy a Northwest Airlines jet bound for Detroit from Amsterdam.  The charges are straightforward: attempted destruction of an aircraft, and bringing a destructive device onboard an aircraft.

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