Opinion
No. 01 Cr. 98 (TPG).
October 19, 2005
OPINION
On May 4, 2005 the Court of Appeals remanded this case for further proceedings in conformity with U.S. v. Crosby, 397 F.3d 103 (2d Cir. 2005).
On February 28, 2003 the court sentenced defendant to 74 months in prison for illegally reentering the country after being deported following conviction for an aggravated felony. The sentence was to be served concurrently with the balance of a state sentence.
At that time the court denied an application for downward departure. The application was based on the contention that the Government had delayed the prosecution for the illegal re-entry offense for about three years, thus depriving defendant of an opportunity for a substantial amount of concurrent treatment of the federal prison time and the state prison time. However, the court did make the federal sentence concurrent with whatever balance remained to be served on the served on the state sentence. It was assumed, based upon information provided to the court, that the state prison time would run until June 2006. The federal sentence would run longer, but the court stated that it was appropriate to have something of substance added by way of prison time for the federal crime.
It now appears that defendant was released from the state prison on October 8, 2003, instead of June 2006. Thus, the amount of concurrent treatment was only a few months.
Considering all the circumstances, the court rules that defendant should not be re-sentenced. The 74 months is at the low end of the guideline range of 70-87 months. It is an appropriate sentence in view of the fact that defendant was deported following a state conviction for attempted murder; he reentered the United States illegally and was then convicted of narcotics crimes in state courts. The court is of the view that a sentence within the guideline range is still appropriate and adheres to the sentence of 74 months.
SO ORDERED.