Tuesday, July 05, 2005
Why can't we all just get along?
So, imagine this -- both the defense and the prosecution agree that a criminal defendant should not be sentenced as a career offender (read, lots of time). Yes, you saw that right -- the defense and the prosecution agreed to something in the Southern District of Florida. First, they jointly recommended to the sentencing judge (Judge K. Michael Moore) that the defendant should be permitted to withdraw his plea because neither side anticipated that the career offender enhancement that probation found. The judge denied that request. The defendant went to state court and convinced the state prosecutor and the state judge that the state convictions should be vacated. After the state judge signed the order vacating the qualifying convictions, the parties went back to Judge Moore and argued that the defendant was no longer a career offender. The judge wouldn't budge and famously called the former U.S. Attorney for the Southern District of Florida "weak-kneed." He then sentenced the defendant as a career offender. The Eleventh Circuit reversed, finding that the defendant was no longer a career offender (as a result of the convictions being vacated) and ordering Judge Moore to resentence the defendant to a reasonable sentence. Hmmmm, what's going to happen next? Congrats to both parties on this initial victory in convincing the Eleventh Circuit that the sentence was unlawful. The case is USA v. Himick. Thanks to Michael Caruso for the info.