United States v. Shand
739 F.3d 714
| 2d Cir. | 2014Background
- Shand is a Jamaican citizen with an extensive U.S. criminal history; he was removed in 2001 and reentered illegally before a 2004 Louisiana arrest.
- In 2011, Shand was arrested for presenting a fake ID; a records check showed removal and ICE indicated no authorization to reenter.
- Shand was indicted under 8 U.S.C. § 1326 for being found in the United States.
- A Fast Track plea offer was extended based in part on the mistaken belief that reentry occurred in 2011; Shand waived removal protections.
- During sentencing, the PSR revealed reentry in 2004, increasing his criminal history calculations and affecting Guidelines recommendations.
- The PSR proposed a four-point § 5K3.1 departure; the district court denied the motion and imposed a low-end 77-month sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Must district court grant §5K3.1 departure on Government motion? | Shand argues the district court must depart. | Shand's reading ignores discretionary language; gov’t motion is permissive. | Discretionary; court may depart, but is not required to. |
| Does §5K3.1 defeat Shand’s reliance on §3El.1(b) for responsibility reduction? | Shand links §5K3.1 to §3El.1(b) to force a reduction. | §5K3.1 and §3El.1(b) operate independently; §5K3.1 governs departures. | No, §5K3.1 is independent of §3El.1(b). |
| Is the Government’s policy rationale for §5K3.1 persuasive or dispositive? | Shand argues resources conservation should compel departure. | Policy concerns do not override clear text. | Textual clarity controls; policy considerations are non-dispositive. |
Key Cases Cited
- United States v. Doe, 996 F.2d 606 (2d Cir. 1998) (per curiam; discusses discretionary nature of departures)
- United States v. Fernandez, 127 F.3d 277 (2d Cir. 1997) (text supports discretion in departures)
- United States v. Huerta, 878 F.2d 89 (2d Cir. 1989) (reinforces discretionary interpretation of departures)
- United States v. Mount, 675 F.3d 1052 (7th Cir. 2012) (discusses §3El.1(b) vs. §5K3.1 text)
- United States v. Carera, 550 F.3d 180 (2d Cir. 2008) (en Banc; on reasonableness of sentences within range)
- United States v. Rigas, 490 F.3d 208 (2d Cir. 2007) (en Banc; exceptional case within range analysis)