For the second time in four years, a federal appeals court has rebuffed the attempt of a district judge to impose a tough sentence on a drug smuggler who violated his plea agreement but nonetheless had the support of the government for "significant" consideration.
Judges Roger J. Miner, Reena Raggi and Debra Ann Livingston said in United States v. Timewell, 07-4587-cr, that Eastern District of New York Judge Thomas C. Platt again wrongly took into account what he perceived to be a government practice of automatically voiding plea agreements that have been violated by the defendant.
"That such a customary practice exists is unsupported by the record before the district court," Judge Miner wrote for the panel, which again remanded the case to Judge Platt for resentencing.
Gregory Paul Timewell, a native of New Zealand, was arrested in 1995 for attempting to bring 25 tons of hashish into the country. He was one of the major players caught in an investigation of a massive smuggling operation from a port in Pakistan through Long Island to upstate New York and Canada.
Timewell reached an agreement with Eastern District prosecutors in 1995 in which he agreed to plead guilty to conspiracy to import hashish, provide complete cooperation, give full disclosure of all his assets and forfeit his property.
But Timewell neglected to tell agents about $4.8 million in Swiss francs he had stashed in Switzerland. Once that was discovered, he entered into a supplemental plea agreement with the government on March 1, 2001, in which he pleaded guilty to making a false statement to federal officers.
Nonetheless, on March 4, 2004, the government sent Judge Platt a 5K1.1 letter recommending "the court grant a significant downward departure in formulating Timewell's sentence."
The next day, Judge Platt said the amount of money and drugs involved in the case was "mind-boggling," and absent the government's letter, he would have had "no hesitancy" in imposing the sentence called for by the U.S. Sentencing Guidelines: 33 years and nine months.
Instead, Judge Platt sentenced Timewell to the minimum sentence of 22 years and 11 months. However, he only reached that minimum number by taking into account Timewell's breach of the first plea agreement.
On Timewell's first appeal, the 2nd Circuit vacated the sentence and remanded for reconsideration pursuant to procedures outlined in United States v. Crosby, 397 F.3d 103 (2d Cir. 2005). On remand, Judge Platt was to determine to what extent the then-mandatory guidelines had on his original sentence and whether he would have applied a different sentence.
Defense attorney Ivan S. Fisher suggested in a letter that the judge "may have" erred in performing the guidelines computation. He asked the judge to consider a lower sentence in light of the fact that a co-defendant had been given a 10-year sentence and the government had given Timewell "the equivalent of its highest recommendation."
But Judge Platt said it was his understanding that, while it was not a rule, it was the "unique" practice of the Eastern District U.S. Attorney's Office to insist that cooperators forfeit all benefits of a plea deal if they violate its terms. On Oct. 4, 2007, he refused to reconsider the 22-year sentence.
Timewell again appealed, and the circuit once again sent the case back to Judge Platt.
PROCEDURAL ERROR
Writing for the circuit, Judge Miner explained that, in reviewing a sentence for reasonableness, the court employs a "deferential abuse-of-discretion standard."
"However, the deference due the district court in sentencing requires that we first be satisfied that the procedural requirements for sentencing have been satisfied," Judge Miner said.
Here, he said, the district court made the procedural error of failing to first ask whether its original sentence would have been different had the guidelines been advisory (following United States v. Booker, 543 U.S. 220 [2005]) and not mandatory.
"The district court here did not respond directly to the required inquiry," he said. "Indeed, the court and counsel immediately began to discuss whether a more lenient sentence should be imposed in light of the sentencing disparities identified by counsel."
This, the circuit said, was not harmless error.
"That the government usually voids cooperation agreements upon a breach by the defendant should not be reason to constrain a district court from giving proper effect to a 5K1.1 letter if the government decides to submit a 5K1.1 letter notwithstanding the defendant's breach of the cooperation agreement," Judge Miner said.
Judge Platt also made an error when he "substantially overstated Timewell's actual guidelines range," Judge Miner said.
On remand, the lower court is directed to "answer the question posed by the Crosby remand of Timewell's original sentence" and "state the reasons for the response without consideration of past practices of the government in regard to the rescission of cooperation agreements."
Timewell has been incarcerated since his arrest in 1995. Ivan Fisher, his attorney, said in an interview that he had been "working for this for five years."
"From my point of view the sentence originally imposed was, to put it mildly, harsh, particularly in view of the enormous support the government has consistently provided Timewell at the various sentencing proceedings in which it expressed in the most strenuous language the importance, the significance, the uniqueness of his cooperation," Fisher said. "I think there were a hundred and some odd individual defendants in this case and everyone cooperated -- the government represented that his cooperation was the best, but on a number of occasions, it seemed Judge Platt wasn't listening."
Assistant U.S. Attorney Burton T. Ryan Jr. represented the government.
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2nd Circuit Again Rebukes Judge Over Sentence in International Drug Case
New Zealand native Gregory Paul Timewell was arrested in 1995 for attempting to bring 25 tons of hashish into the U.S.
New York Law Journal
June 4, 2009
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