Monday, April 29, 2013

Maybe it's time to stop riding the bike

Justice Breyer had a horrible biking accident this weekend, requiring reconstructive shoulder surgery.  It was his third bad biking accident.  From CNN:

In 1993, he had a nasty accident when a car stuck him in Harvard Square while he was on his two-wheeler. He suffered a punctured lung and broken ribs.
Then, over Memorial Day weekend in 2011, Breyer broke his right collarbone after falling off his two-wheeler in Cambridge, Massachusetts, where he has a second home.
Man, that's rough.
Closer to home, Judge Jordan is explaining that prosecutors actually have to prove up guideline enhancements. From the Court's opinion in United States v. Washington:
Sometimes a number is just a number,* but when the number at issue triggers an enhancement under the Sentencing Guidelines, that number matters. In this appeal we decide whether the government presented sufficient evidence that 250 or more persons or entities were victimized by the fraud scheme in which Gary Washington participated. Because the government failed to put on any evidence that there were 250 or more victims, we vacate Mr. Washington’s sentence and remand for the district court to resentence Mr. Washington with a 2-level enhancement under U.S.S.G. § 2B1.1(b)(2)(A) rather than a 6-level enhancement under § 2B1.1(b)(2)(C).
*See, e.g., J. Keefe, Dow 10,000: Sometimes a Number is Just a Number, CBS Moneywatch (Oct. 15, 2009).

This part of the decision was also interesting:

The government asks that it be allowed to prove on remand that there were 250 or more victims for whom Mr. Washington was responsible. We decline the government’s request. Nothing prevented the government -- which was aware of Mr. Washington’s objection -- from putting on evidence concerning the number of victims at the sentencing hearing, and a party who bears the burden on a contested sentencing issue will generally not get to try again on remand if its evidence is found to be insufficient on appeal. We have discretion to permit the government to present evidence at resentencing even though it amounts to giving the party a second bite at the apple. But often a remand for further findings is inappropriate when the issue was before the district court and the parties had an opportunity to introduce relevant evidence, and here the government failed to present any evidence concerning the number of victims.

1 comment:

Anonymous said...

If Will Thomas gets on the federal bench, I'm going to buy him a nice bike as a congratulations gift.