In the Second Circuit’s Sept. 26, 2013, reversal, where the order is to “remand the case to the district court with directions that it vacate the sentence and resentence the defendant consistent with this opinion,” Judge Weinstein’s 401-page sentencing opinion came under review, along with the judge’s allegation that a five-year sentence for Corey Reingold was an unconstitutional Eighth Amendment violation. Judge Weinstein had claimed the mandatory minimum a cruel and unusual punishment and had suggested that 30 months would provide enough psychiatric treatment to prevent a repeat offense.
The 2nd Circuit’s reversal, though, found no such constitutional violation and a case analysis gave much attention to Harmelin v. Michigan, 501 U.S. 957 (1991), for case specific analysis and Graham v. Florida, 130 S.Ct. 2011 (2010), for categorical rule analysis. The court emphasized, citing Graham, that punishments are deemed cruel and unusual when they are both “inherently barbaric” and “disproportionate to the crime.” A five-year sentence, the court said, requires categorical rules to ensure constitutional proportionality as applied to particular felony crimes or classes of defendants, and the Second Circuit ruled that Judge Weinstein had not employed Graham’s analytic approach to pronounce a categorical rule. Instead, the appellate court said Judge Weinstein had found the five-year minimum disproportionate to the offense as applied specifically to Reingold. “The Supreme Court’s proportionality jurisprudence does not support such a substitution of Graham’s categorical-rule approach for Harmelin’s particular-case approach to assess the proportionality of an otherwise permissible term-of-years sentence as applied to a particular case,” the court said.
The reversal also criticized Judge Weinstein’s emphasis on juvenile offenders. “Reingold was already 19 when he committed the crime of conviction,” the 2nd Circuit’s opinion reads. “In short, he was an adult, not a juvenile.”
Judge Weinstein’s sentencing opinion states that Corey Reingold was 15 when he started smoking marijuana and drinking alcohol. A year later, the judge wrote, a friend introduced him to child pornography on the Internet. He began watching the material with male and female peers.
Michigan Supreme Court Rules that OV 19 Does Not Contain a Transactional Limitation. A Defendant Can be Scored for this Variable for Conduct Occurring Many Weeks After the Underlying Offense.
SCOTUS Rejects Fourth Circuit's Attempt to Turn Misdemeanor Drug Purchases Into a Felony Because a Cell Phone Was Used
The petitioner in this case made two one gram purchases of cocaine from a drug dealer whose phones were being wiretapped. Under 21 U.S.C. 844, these crimes would ordinarily be charged as misdemeanors, but a clever prosecutor tried to charge the petitioner under a felony for using a “communication facility” to facilitate a felony. The Fourth Circuit upheld the petitioner’s conviction stating that the term should be “given its ordinary” meaning. The Court per Justice Souter reversed finding that the term facilitate was necessarily very broad and that the statute should be narrowly construed in relation to the entire scheme. Abuelwaha v. United States, Supreme Court No. 08-192.
In this consolidated appeal, Gary Moore, Ralph Edward Wester, Theodora Lawton, Clarence Collins, and Keith Maurice McFadden (“defendants”) appeal separate district court decisions denying their motions for reduced sentences under 18 U.S.C. § 3582(c)(2). The defendants’ motions were all based on Amendment 706 to the Sentencing Guidelines, which, together with Amendment 713, retroactively reduced the base offense levels applicable to crack cocaine offenses. The district courts denied their motions on the ground that, because the defendants were sentenced as career offenders under U.S.S.G. § 4B1.1, Amendment 706 did not have the effect of lowering their applicable guideline ranges. We affirm.