Scribd Logo
Upload

Welcome to Scribd!

  • 42 views

    United States v. Nelson Frias, 39 F.3d 391, 2d Cir. (1994)

    Uploaded by

    Scribd Government Docs
    This document summarizes an appeals court decision regarding the resentencing of Nelson Frias. The court had previously remanded Frias's case for potential downward departure from sentencing guidelines that were substantially increased based partly on conduct Frias was acquitted of. On remand, the district court exercised its discretion to depart downward from 210-262 months to 144 months in prison. The appeals court affirmed, rejecting Frias's double jeopardy and overruled precedent arguments. In a concurring opinion, one judge argued the case raised important sentencing guidelines and double jeopardy issues that deserved Supreme Court review, as Frias's sentence was multiplied based partly on acquitted conduct.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd

    United States v. Nelson Frias, 39 F.3d 391, 2d Cir. (1994)

    Uploaded by

    Scribd Government Docs
    42 views6 pages
    This document summarizes an appeals court decision regarding the resentencing of Nelson Frias. The court had previously remanded Frias's case for potential downward departure from sentencing guidelines that were substantially increased based partly on conduct Frias was acquitted of. On remand, the district court exercised its discretion to depart downward from 210-262 months to 144 months in prison. The appeals court affirmed, rejecting Frias's double jeopardy and overruled precedent arguments. In a concurring opinion, one judge argued the case raised important sentencing guidelines and double jeopardy issues that deserved Supreme Court review, as Frias's sentence was multiplied based partly on acquitted conduct.

    Original Description:

    Filed: 1994-10-31 Precedential Status: Precedential Citations: 39 F.3d 391 Docket: 181

    Copyright

    © Public Domain

    Available Formats

    PDF or read online from Scribd

    Did you find this document useful?

    Is this content inappropriate?

    This document summarizes an appeals court decision regarding the resentencing of Nelson Frias. The court had previously remanded Frias's case for potential downward departure from sentencing guidelines that were substantially increased based partly on conduct Frias was acquitted of. On remand, the district court exercised its discretion to depart downward from 210-262 months to 144 months in prison. The appeals court affirmed, rejecting Frias's double jeopardy and overruled precedent arguments. In a concurring opinion, one judge argued the case raised important sentencing guidelines and double jeopardy issues that deserved Supreme Court review, as Frias's sentence was multiplied based partly on acquitted conduct.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    42 views6 pages

    United States v. Nelson Frias, 39 F.3d 391, 2d Cir. (1994)

    Uploaded by

    Scribd Government Docs
    This document summarizes an appeals court decision regarding the resentencing of Nelson Frias. The court had previously remanded Frias's case for potential downward departure from sentencing guidelines that were substantially increased based partly on conduct Frias was acquitted of. On remand, the district court exercised its discretion to depart downward from 210-262 months to 144 months in prison. The appeals court affirmed, rejecting Frias's double jeopardy and overruled precedent arguments. In a concurring opinion, one judge argued the case raised important sentencing guidelines and double jeopardy issues that deserved Supreme Court review, as Frias's sentence was multiplied based partly on acquitted conduct.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    of 6

    39 F.

    3d 391

    UNITED STATES of America, Appellee,


    v.
    Nelson FRIAS, Defendant-Appellant.
    No. 181, Docket 94-1052.

    United States Court of Appeals,


    Second Circuit.
    Argued: Oct. 14, 1994.
    Decided: Oct. 31, 1994.

    Edward A. Rial, Asst. U.S. Attorney, Brooklyn, NY (Zachary W. Carter,


    U.S. Atty., E.D.N.Y. and Peter A. Norling, Asst. U.S. Atty., on the brief),
    for appellee.
    John M. Apicella, Brooklyn, NY, for defendant-appellant.
    Before: OAKES, KEARSE, and ALTIMARI, Circuit Judges.
    PER CURIAM.

    This case returns to us on the appeal of defendant Nelson Frias from a final
    judgment of the United States District Court for the Eastern District of New
    York, Arthur D. Spatt, Judge, sentencing him principally, following our limited
    remand in United States v. Concepcion, 983 F.2d 369 (2d Cir.1992)
    ("Concepcion "), cert. denied, --- U.S. ----, 114 S.Ct. 163, 126 L.Ed.2d 124
    (1993), to a total of 144 months' imprisonment. In Concepcion, we rejected
    Frias's contentions that both the federal Sentencing Guidelines ("Guidelines")
    and the Double Jeopardy Clause barred consideration of his acquitted conduct
    in the calculation of his sentence under the Guidelines. See 983 F.2d at 391.
    However, in light of the very substantial increase in penalty prescribed by the
    Guidelines as a result of consideration of that conduct, which we concluded
    was a factor the extent of which had not been adequately anticipated by the
    Sentencing Commission, we remanded to the district court to permit that court
    to decide whether or not to exercise its discretion to depart downward from the
    prescribed Guidelines imprisonment range. See id. at 389.

    On remand, the district court exercised its discretion and departed downward
    from the prescribed range of 210-262 months, sentencing Frias to a total of 144
    months' imprisonment. We see no basis for Frias's present contention that the
    district court failed to follow the directions this Court gave in Concepcion. We
    reject Frias's renewed contention that the Double Jeopardy Clause barred
    consideration of his acquitted conduct in the calculation of his sentence for the
    reasons we stated in Concepcion, 983 F.2d at 391. And we reject Frias's
    reliance on United States v. McCormick, 992 F.2d 437 (2d Cir.1993), for the
    proposition that Concepcion has been overruled, because in McCormick, unlike
    the present case, the conduct in question had already been used to calculate that
    defendant's sentence in a prior prosecution.

    We have considered all of Frias's contentions on this appeal and have found
    them to be without merit. The judgment of the district court is affirmed.

    OAKES, Senior Circuit Judge, concurs, in a separate opinion.


    OAKES, Senior Circuit Judge, concurring:

    When this case was previously before this court, United States v. Concepcion,
    983 F.2d 369 (2d Cir.1992), I had already taken senior status. Consequently, I
    was unable, not having been a member of the panel, to vote in the poll of
    judges on the issue whether to rehear the case en banc. I register here my very
    strong agreement with the opinion of now Chief Judge Newman dissenting
    from the denial of rehearing en banc, 983 F.2d at 395. I note that, not
    unpredictably, the Supreme Court denied Frias's petition for a writ of certiorari,
    Frias v. United States, --- U.S. ----, 114 S.Ct. 163, 126 L.Ed.2d 124 (1993),
    especially in light of the fact that the Solicitor General argued, among other
    things, that the matter was not ripe for review because Frias had won a vacatur
    of his sentence on the original appeal, 983 F.2d at 390. Now that Frias has been
    resentenced and that resentence has been upheld, as it must be by virtue of the
    reasoning in Concepcion and our basic rule that one panel cannot overturn a
    previous decision by another panel, the case is eminently ripe for Supreme
    Court review.

    The issues involved are Sentencing Guidelines issues, as set forth by Judge
    Newman in his original concurring opinion, 983 F.2d at 393-95, and in his
    opinion dissenting from the denial of rehearing en banc, 983 F.2d at 395-96, as
    well as Double Jeopardy issues. The latter issue was handled in the majority
    opinion by the court's explanation:

    In considering the acquitted conduct as a basis for enhancing [the defendant's]


    7sentence, the district court "was not relying on facts disclosed at trial to punish the
    defendant for the extraneous offense, but to justify the heavier penalties for the
    offenses for which he was convicted."
    8

    983 F.2d at 391 (quoting United States v. Rodriguez-Gonzalez, 899 F.2d 177,
    182 (2d Cir.), cert. denied, 498 U.S. 844, 111 S.Ct. 127, 112 L.Ed.2d 95 (1990)
    (quoting United States v. Juarez-Ortega, 866 F.2d 747, 749 (5th Cir.1989) (per
    curiam ))).

    The majority opinion in Concepcion, while permitting the district court to


    consider acquitted conduct in calculating the base offense level, leavened the
    decision by directing the district court on remand to consider whether a
    downward departure was warranted because the Guideline range for the crimes
    of conviction was between 12 and 18 months, while the Guideline calculation
    based upon the acquitted conduct yielded a sentence of 20 years. 983 F.2d at
    386. Such a result was, as Judge Newman explicated, "bizarre." 983 F.2d at
    393.

    10

    It is no less bizarre after the remand. It is especially bizarre because Frias was
    not only acquitted of participation in a conspiracy to distribute narcotics but
    also acquitted of possession of a weapon during and in relation to the
    participation in that conspiracy. Yet, in the sentencing of him on his convictions
    for possession of an unregistered firearm and possession of an unregistered
    firearm by a convicted felon, the probation report concluded that he used the
    firearm to commit conspiracy to distribute narcotics.

    11

    At the hearing on resentencing on January 14, 1994, it was duly noted that if
    imposed consecutively the maximum Guideline sentence for the crimes of
    conviction would be 36 months and that Frias had already been incarcerated for
    over 60 months. The district court, thinking that Frias was "guilty by clear and
    convincing evidence by being a major cog, an integral part of one of the most
    vicious, pervasive organizations that I have ever heard of," Sentence Tr. 25-26,
    ultimately imposed two consecutive sentences of 72 months, for a total of 144
    months or 12 years. This is the sentence now upheld. Thus, we hold that a
    person's sentence for crimes of which he has been convicted may be multiplied
    fourfold by taking into account conduct of which he has been acquitted. This is
    jurisprudence reminiscent of Alice in Wonderland. As the Queen of Hearts
    might say, "Acquittal first, sentence afterwards."

    12

    I note that United States v. Brady, 928 F.2d 844, 850-52 (9th Cir.1991),

    holding that "we would pervert our system of justice if we allowed a defendant
    to suffer punishment for a criminal charge for which he or she was acquitted,"
    id. at 851, has not been overturned in that circuit though it has been criticized
    elsewhere.1 Nevertheless, there is here a conflict among the circuits which
    would seem worthy of Supreme Court resolution.
    13

    I note that the Senate Report on the bill establishing the Sentencing Guidelines
    Commission, Sentencing Reform Act of 1984, Pub.L. No. 98-473, 98 Stat.
    1837, 28 U.S.C. Secs. 991-998 (1988), "unequivocally requires any overturned
    convictions to be excluded from the sentencing calculation." United States v.
    Galloway, 976 F.2d 414, 428, 431 (8th Cir.1992) (en banc ) (dissenting
    opinion), cert. denied, --- U.S. ----, 113 S.Ct. 1420, 122 L.Ed.2d 790 (1993).
    That requirement, if it is correctly inferred from the Report and the language of
    the Act, "necessarily applies to convictions overturned on legal technicalities,
    as well as convictions overturned due to the Government's failure to prove guilt
    beyond a reasonable doubt." Id. As pointed out, id. n. 4, this "may call into
    question the interpretation, now widely accepted, that the Guidelines may
    properly permit incremental sentence enhancement for acquitted conduct due to
    the lessened burden of proof at the sentencing hearing."

    14

    I note further that the Act, Section 994(l ), which authorizes the Commission to
    permit imposition of incremental punishment, does so only "in a case where a
    defendant is convicted of " multiple criminal offenses. 28 U.S.C. Sec. 994(l )(1)
    (emphasis added). Had Congress wanted separate unconvicted offenses to be
    punished incrementally, it could have/would have used the word "commits"
    instead of the words "is convicted of." See United States v. Miller, 910 F.2d
    1321, 1329-30 (6th Cir.1990) (Merritt, C.J., dissenting), cert. denied, 498 U.S.
    1094, 111 S.Ct. 980, 112 L.Ed.2d 1065 (1991). The Senate Report speaks as
    follows:

    15

    Subsection (1) directs the Commission to promulgate guidelines that reflect the
    appropriateness of imposing an incremental penalty for each offense if a
    defendant is convicted of a number of offenses that are part of the same course
    of conduct, and if a defendant is convicted of multiple offenses committed at
    different times.... If no such incremental penalty were provided (e.g., were all
    sentences to be imposed without regard to the commission of other offenses and
    made to run concurrently), an offender who commits one offense would be
    faced with no deterrent to the commission of another during the interval before
    he is called to account for the first. It is the Committee's intent that, to the
    extent feasible, the sentences for each of the multiple offenses be determined
    separately and the degree to which they should overlap be specified. Under this
    approach, if the conviction for one of the offenses is overturned, it will be

    unnecessary to recalculate the sentence. S.Rep. No. 225, 98th Cong., 2d Sess. at
    176-77 (1983), reprinted in 1984 U.S.C.C.A.N. at 3182, 3359-60 (emphasis
    added).
    16

    I think the converse follows: incremental penalties cannot be imposed for


    acquitted conduct.

    17

    Nor does the Fifth Circuit's Juarez-Ortega rationalization ring other than hollow
    to me: that the court is not relying on facts to punish the defendant for the
    extraneous offense but to justify the heavier penalties for the offenses for which
    he was convicted. 866 F.2d at 749 (quoted in Rodriguez-Gonzalez, 899 F.2d at
    182, and in turn quoted and relied on in Concepcion, 983 F.2d at 391). When a
    sentence is quadrupled by the incremental/acquitted conduct, the hollowness is
    deafening.

    18

    I note that Judge Hall in the Fourth Circuit, United States v. Hunter, 19 F.3d
    895, 897-98 (4th Cir.1994) (concurring opinion), recently agreed with the Ninth
    Circuit and with Judge Newman that the rule permitting punishment for
    acquitted conduct is a bad one. This case is an anomaly that should not be
    permitted to stand. I am however bound, as I have said, to follow Concepcion,
    and therefore am required, needless to say reluctantly, to concur.

    The holding in Brady, which applied to upward departures, was recently


    applied by the Ninth Circuit to sentence enhancements as well. United States v.
    Pinkney, 15 F.3d 825, 829 (9th Cir.1994). The rationale of Brady has, however,
    been rejected by every other circuit. See United States v. Milton, 27 F.3d 203,
    208-09 (6th Cir.1994); United States v. Foster, 19 F.3d 1452, 1455
    (D.C.Cir.1994); United States v. Hunter, 19 F.3d 895, 897 (4th Cir.1994);
    United States v. Masters, 978 F.2d 281, 285, 286 (7th Cir.1992), cert. denied, -- U.S. ----, 113 S.Ct. 2333, 124 L.Ed.2d 245 (1993); United States v. Galloway,
    976 F.2d 414, 424 n. 6 (8th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1420,
    122 L.Ed.2d 790 (1993); United States v. Coleman, 947 F.2d 1424, 1428-29
    (10th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1590, 118 L.Ed.2d 307
    (1992); United States v. Manor, 936 F.2d 1238, 1242-43 (11th Cir.1991);
    United States v. Mocciola, 891 F.2d 13, 16-17 (1st Cir.1989); United States v.
    Juarez-Ortega, 866 F.2d 747, 749 (5th Cir.1989); United States v. Ryan, 866
    F.2d 604, 609 (3d Cir.1989). But see United States v. Hunter, 19 F.3d 895, 89799 (4th Cir.1994) (Hall, J., concurring) (agreeing with Brady ); United States v.
    Galloway, 976 F.2d 414, 431 n. 4 (8th Cir.1992) (en banc ) (Beam, J.,
    dissenting) (questioning the majority analysis). See also United States v.

    Thomas, 961 F.2d 1110, 1121 (3d Cir.1992) (relying on Brady in an analogous
    context)

    You might also like