United States v. Hilario, Docket No. 05-3972-cr (2d Cir. May 24, 2006)
Hilario plead guilty to consipring to import ecstasy into the United States and received a sentence of 162 months imprisonment. Hilario had previously served 26 months imprisonment in Belgium on a related charge. At sentencing, the district court reduced Hilario's sentence by 26 months (to the 162 month term of imprisonment imposed) to account for the time that he served in Belgium on the related charge. The district court did not, however, credit Hilario for the 4 months of "good-time" credit that he likely would have "earned" if he had served that 26 month term of imprisonment in the United States rather than in Belgium (in other words, the district court did not sentence him to 158 rather than 162 months imprisonment).
The Second Circuit rejected Hilario's argument, finding that "the district court did not abuse its discretion in denying a downward departure on the basis of Hilario's speculative assertion that he would have earned good time credit in a BOP prison had he served his time in such a facility." The Second Circuit's analysis is interesting because it seems to indicate that there was no abuse of discretion by the district court because Hilario's assertion was "speculative." Does that mean that the district court would have, in fact, abused its discretion if Hilario's assertion had not been "speculative"? I suspect not because of the discretion with which district courts are vested when it comes to downward departure motions. I am curious, however, as to whether Hilario made his argument solely as a downward departure motion or whether he also relied on it in seeking a non-Guidelines sentence pursuant to one of the Section 3553(a) factors. Unfortunately, the Second Circuit's opinion does not provide such information.