United States v. Polanco, No. 02 cr. 442-02 (GEL), 2008 WL 144825 (S.D.N.Y. Jan. 15, 2008)
Maybe I've missed something, but Polanco seems to be the first revisiting of a crack sentence since the Sentencing Commission decided to apply the new crack guidelines retroactively. While the proposed new sentence will not go into effect until the date of retroactivity, Judge Lynch has already said what he intends the new sentence to be: 70 instead of 87 months.
He based it on three findings: (1) the Supreme Court's finding that the Guidelines are no longer mandatory but are only advisory; (2) the Supreme Court's finding that a "sentencing court may take into account its view that the penalties for crack are excessive in relation to those for other similar drugs"; and (3) the Sentencing Commission new and retroactively applied crack guidelines. And, if course, he considered Polanco's personal circumstances, as reflected in the original sentencing record.
Here's Judge Lynch's order (which appears to have been issued sua sponte):
Although the Court's authority to reduce Polanco's sentence does not become effective until March 3, 2008, it is not too soon for the Court to prepare to exercise that authority if appropriate, given that the sentencing transcript suggests that Polanco is a likely candidate for such a reduction, and that according to the Sentencing Commission's estimate, reduction of Polanco's sentence to 70 months might result in an expected release date of March 17, 2008. Despite Polanco's apparent eligibility for the maximum authorized reduction, it would not be appropriate for the Court to reduce a defendant's term of imprisonment sua sponte without giving the Government an opportunity to address the issue. Perhaps events since Polanco's sentencing, including but not limited to actions while incarcerated that might show him to be dangerous and not rehabilitated, or information not presentented to the Court at sentencing, will indicate that a reduction in sentence would not be appropriate. Similarly, Polanco himself should have the opportunity to rebut any argument made by the Government, or to submit any information of his own supporting a reduction in his sentence.
Accordingly, the Court hereby serves notice of its intention to reduce defendant Polanco's term of imprisonment to 70 months on March 3, 2008, unless good cause not to do so is shown by the Government before that time, and it is hereby ORDERED that the Government submit any opposition to such a reduction on or before February 11, 2008. Polanco may submit a response to any Government submission on or before February 25, 2008. In view of the potential urgency ofthe situation, these deadlines will not be extended.
Who represents Polanco? What will the Government say in response? Will Polanco be the first crack defendant freed based on the new retroactive crack guidelines?