United States v. Day, No. 05-04283-cr (2d Cir. Oct. 10, 2006) (found here)
The sentencing court really blew it on this one. Specifically, the sentencing court imposed a 180 month sentence on Day composed of consecutive 120 month and 60 month sentences (for two separate counts). The sentencing court, however, misread the statute under which Day was convicted to require that the sentences for those two counts be served consecutively. Indeed, the Second Circuit surmised that the sentencing court reached that conclusion based on the PSR which had also erroneously concluded that the two sentences had to be served consecutively.
The Second Circuit therefore rightfully reversed the sentence and remanded the case for resentencing. For further discussion of this significant error, check out Doug Berman's Sentencing Law and Pollcy blog here, where Professor Berman observes that he is "always charged up about sentencing realities because I sometimes find cases in which simple sloppiness can almost cost a person years of their life." (As an aside, it also bears noting that the sentencing court failed to verify that Day and his counsel had read and discussed the PSR.)
But that was not the sentencing court's only error. Rather, the sentencing court also failed to make specific findings as to whether or not Day qualified for safety valve relief.
Specifically, a sentencing court may not rely solely on the Government's determination as to whether or not a defendant qualifies for safety valve relief. Rather, a sentencing court must make its own determination based on the record. Day argued (and the Government conceded) that the sentencing court here made no independent findings in support of its conclusion that Day did not qualify for safety valve relief. Accordingly, the Second Circuit remanded the case so that the sentencing court could "make specific findings as to whether Day met his burden of proving that he satisfied the safety valve criteria."
Day also argued that he should be permitted to further proffer before he is resentenced to demonstrate that he meets the safety valve's fifth criteria (that he "provided to the Government all information and evidence . . . concerning the offense or offenses that were part of the same course of conduct or of a common plan or scheme"). The Second Circuit acknowledged that it had not yet addressed this question, and declined to do so in Day. Rather, the Second Circuit found that the sentencing court may either: (1) grant safety valve relief; or (2) allow Day to further proffer and determine that he still does not qualify for safety valve relief.
Wait a second. Isn't the Second Circuit answering the question it specifically says it is not answering?
If Day provides no further proffer in support of safety valve relief, the sentencing court upon remand will be working with the same universe of information with which it worked when it made its initial safety valve determination. And since it rejected safety valve relief based on that information, it is fair to presume that it would once do so (albeit with specific findings).
So, if the only two possibilities available to the sentencing court are to grant safety valve relief or to allow further proffer and reject safety valve relief, isn't the Second Circuit essentially saying that the sentencing court must hear further proffer from Day because: (1) it could not/would not (based on its prior findings) grant safety valve relief without hearing further proffer from Day; and (2) it could not reject safety valve relief after hearing further proffer from Day without, in fact, hearing that further proffer? In other words, don't both possibilities laid out by the Second Circuit contemplate that the sentencing court must hear further proffer from Day?
Or, is the Second Circuit saying that the sentencing court could decline to hear further proffer from Day upon remand and still reject safety valve relief? And, if so, hasn't Day "squarely presented" the question to the Second Circuit that it claims has not been "squarely presented" -- to wit, whether or not he has the right to further proffer upon remand?
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