Some say the 2d Circuit Court of Appeals can be a very tough crowd.  Maybe not as silly as the 9th Circuit, given that it took an en banc rehearing for them to figure out that “I plead the fifth” means “I plead the fifth,” as opposed to “ask me more questions because I may really want to incriminate myself,” but tough.

As so the court was in reversing a sentence imposed pursuant to a 5k1.1 deal in  United States v. Richardson where the sentencing judge departed downward by “93%”.  Holy Moly, Batman.  Ninety-three percent?  That’s huge!

Well, maybe not as huge as it first appears.  You see, the Circuit used lawyer math (no, not the kind some use when calculating fees).  Rather than use some relatively meaningful number, say the sentencing guidelines calculation of 63-78 months from the PSR, the court chose to go for broke by comparing the sentence imposed, 464 days, from the statutory minimum for the underlying offense, 20 years.

This curious choice of theoretical sentences certainly makes the sentence actually imposed seem rather dramatic, perhaps bordering on hyperbolic.  Not that a court one step below the Supremes would ever be hyperbolic, because that would just be wrong.  But it certainly does add a certain flair to the ruling, making it appear that District Judge Hurd, up there in the New York hinterlands, went a little nuts.

Of course, once the defendant, Carol Dominguez, received the 5K1.1 letter from the government, the mandatory minimum was off the table, rendering it a meaningless number for all purpose other than ridiculing the sentence actually imposed. 

The Circuit’s rejection of the sentence on the government’s appeal (and for all you 5K1.1 lovers out there, remember to let your clients know that if you do your job too well, their good buddies at the United States Attorneys office are going to get miffed and go after you again), was because the judge used “specified and unspecified factors” to reach a fair sentence.  I guess this is their way of saying, “if that’s all you got, then fuhgeddaboutit.”

And with that, the 2d Circuit reversed and remanded for the court to better “articulate” his reasoning.  I can’t help but wonder if that means that Judge Hurd will speak more slowly and with better enunciation the next time around.  I bet that Dominguez’s lawyer, Craig Schlanger of Syracuse, isn’t wondering the same thing.