US v. Pena-Hernandez, No. 06-1596 (unpublished). This was previously remanded to the District Court. On the First trip to the First, the defendant did not raise the issue of whether the government should have given him his “safety valve debriefing.” Apparently, before the First sentencing he got two chances, but didn’t cooperate. On re-sentencing he stated that he would agree to be debriefed, but he didn’t argue that the government had to accept his offer. So, the First resolves it with two alternative arguments, “Accordingly, even if that argument was not waived under the law of the case doctrine, it was forfeited and is therefore reviewable only for plain error.” Because there seems to be so many reasons why the defendant loses, there isn’t that much analysis as to any particular one, the First does say this, “ Even assuming--without deciding--that a defendant may satisfy his disclosure obligations after his original sentencing but before his resentencing... [a] defendant certainly had no right to a debriefing once the resentencing hearing had begun.” Also, this is distinguished from the situation where such a debriefing was contemplated by a plea agreement.
His first appeal was United States v. Peña-Hernandez, No. 04-1489, 146 F. App'x 499 (1st Cir. Aug. 26, 2005) (per curiam) (unpublished) (our coverage here).
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