US v. Diaz-Fontanez, No. 06-2061 (8/8/08) (unpublished). We gotta start calling these cases “Booker Boomerangs.” Because, after being given a Booker remand, it is back. And, it is going back again. The fact that it is unpublished is somewhat disturbing.
For some reason, on the re-sentencing, the District Court “summarily” refused, under USSG § 5G1.3, to take into account time served on a related case in a state facility. The government and the plaintiff only differ about why and how the case should be remanded. The first rejects the need for a remand to determine whether his sentence was increase due to the state charge. Instead, it says that a remand is necessary to determine what the Bureau of Prisons will do about the state time, and to redo the sentence. If the BOP does nothing, then the sentence gets reduced.
A Booker-style crack/powder argum ent is rejected on plain error review. But, I guess now, depending on the facts, he could move for an additional reduction. However, this guy was sentenced in the middle, not the bottom of the guidelines.
Finally, the First notes that the District Court didn't conduct a parsimony analysis. Maybe this is why the case is unpublished. Courts of Appeal don't like doing much about parsimony issues.
Comments