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When resentencing a defendant, a court has the authority to consider what happened before and after the original sentence was imposed, a Southern District of New York judge has ruled. Acting pursuant to a January U.S. Supreme Court ruling that upset the federal sentencing guidelines, and a subsequent ruling from the 2nd U.S. Circuit Court of Appeals, Judge Harold Baer Jr. issued a broad interpretation of facts that can be considered in resentencing. Baer has granted a motion to re-sentence drug offender Alfred Murray and said Murray’s post-sentencing cooperation with a government prosecution will be considered. His ruling came as he scheduled a June 10 hearing under the procedures outlined by the 2nd Circuit in United States v. Crosby, 397 F.3d 103 (Feb. 2, 2005). Crosby dealt with sentencing and resentencing in the wake of United States v. Booker, 125 S.Ct. 738 (Jan.12, 2005), where the U.S. Supreme Court said that any fact other than a prior conviction “which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.” Booker had the effect of making the sentencing guidelines advisory. Under a so-called Crosby remand, the case is sent from the circuit back to the sentencing court to decide whether the judge would have given the defendant a different sentence. “While it is clear that the Court must make its decision whether to re-sentence based on what transpired before the sentencing, the Crosby decision itself expressly declines to provide guidance as to whether the Court can consider post-sentencing events and actions in its determination of what any new sentence should be,” Baer wrote in United States v. Murray, 02 CR 1214. In Crosby, the circuit said, “If based solely on the circumstances that existed at the time of the original sentence, the sentencing judge decides to re-sentence, the judge will have to consider the issue of what current circumstances are to be considered, an issue on which we express no views at this time.” That statement could turn out to be important to Murray, who hopes to win a dramatic reduction in his sentence of almost 20 years when he appears before Baer next month. “But both Booker and Crosby are clear that the sentencing judge may find facts to determine an appropriate sentence,” Baer said. “My interpretation of this language leads me to the conclusion that the Court has the authority to consider what happened both before and after the original sentence to determine the appropriate sentence now.” Murray pleaded guilty to one count of conspiracy to distribute and possess with intent to distribute more than 50 grams of crack cocaine in 2004. Baer said Murray had participated in several proffer sessions with the government, but that prosecutors, believing he had lied and minimized his own role in the drug dealing, refused to write a �5K1.1 letter to the judge and pave the way for a downward departure under the sentencing guidelines. Without a downward departure, Baer sentenced Murray to 19 years and 7 months in prison. COOPERATION CONSIDERED Following the announcement of Booker and then Crosby, the 2nd Circuit remanded Murray’s case for resentencing. Baer said Murray’s post-sentencing cooperation with a government prosecution will be considered. “Thereafter the Government made no attempt to inform the Court of the nature and extent of Murray’s cooperation despite the fact that this cooperation proved to be determinative in obtaining several indictments and a conviction,” Baer said. “As a consequence, on March 17, 2005, this Court declined to re-sentence him.” As it turns out, Murray went on to testify at the trial of a man who shot him and killed another gang member. “Because he had already been sentenced when he testified, Murray stood to gain nothing from the Government in exchange for his testimony,” Baer said. “Not least important, while under oath Murray admitted that he lied to the Government in their initial discussions about his own drug dealing activities.” “This conduct is significant and should be overlooked when he is re-sentenced. Indeed, it goes to the heart of the characteristics of this Defendant and provides support for his genuine contrition.” Stephanie M. Carvlin represented Murray. Assistant U.S. Attorney Victor L. Hou represented the government.

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