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Ruling it is “procedural rather than substantive,” the 2nd U.S. Circuit Court of Appeals has joined other circuits in applying the PROTECT Act’s de novo review of federal sentences to appeals that were pending when the act was passed. Under the controversial legislation, appellate courts no longer must find the trial court abused its discretion in sentencing. Instead, the appellate courts have to review the cases, making their own determination of whether the defendant deserved the given sentence. Last week’s ruling in U.S. v. Kostakis extends the change to those who were sentenced before the law’s enactment. “The act’s change in the standard of review is ‘properly characterized as procedural rather than substantive and therefore can be applied to a pending appeal without violating the Ex Post Facto Clause because it neither increases the punishment nor changes the elements of the offense or the facts the government must prove at trial,’” 2nd Circuit Judge Rosemary S. Pooler wrote. The case arose from the Eastern District of New York. Christos Kostakis, a Greek engineer on the oil tanker Alkyon, was arrested in January 2002 after Coast Guard officers found falsified log entries concealing the ship’s discharge of oil-contaminated bilge water in international waters. Under a plea deal, Kostakis pleaded guilty to one count of making a materially false statement. At sentencing, the government urged the trial court to add a six-level enhancement to his sentence under the federal sentencing guidelines because a large part of the scheme occurred outside the country. The government also urged the judge to reject Kostakis’ request for a two-level downward departure for accepting responsibility. In sentencing Kostakis to time served, the trial court determined that, even if the government’s position were granted, the defendant should receive a six-level downward departure, because his actions outside the country did not fall under the intent of the guideline at issue. The three-judge appeals court panel rejected the trial judge’s reasoning that Kostakis’ conduct outside the country was not sufficiently sophisticated to trigger the guideline. Additionally, because the trial judge didn’t issue any factual findings, the 2nd Circuit said the PROTECT Act’s limitation on a District Court’s sentencing on remand — which bars the trial court from issuing departures on grounds not explicitly upheld on appeal — could not be applied in this case. Kostakis requested downward departures based on his nine-day pretrial confinement, prolonged separation from his family in Greece and a combination of other circumstances. “A strict application of the PROTECT Act would preclude the sentencing court from considering these alternative grounds for departure on remand because they were never ‘specifically and affirmatively included in the written statements of reasons [for the appeal],’” Pooler wrote.

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