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UNITED STATES v. POLANCO

September 14, 1994

UNITED STATES OF AMERICA, Plaintiff,
v.
JOSE ALBERTO POLANCO, Defendant.



The opinion of the court was delivered by: WHITMAN KNAPP

 WHITMAN KNAPP, SENIOR D.J.

 The memorandum and order of September 9, 1994, is hereby amended to include the following paragraph immediately prior to the "CONCLUSION":

 
It is absurd to suggest -- as does the Government on the presumed authority of United States v. Maul-Valverde (8th Cir. 1993) 10 F.3d 544, 545 -- that 8 U.S.C. § 1101(a)(43) justifies treating as an "aggravated" felon for the purpose of federal sentencing a minnow like Polanco who received a misdemeanor-type sentence from a state court. That statute - expressly protects such minnows from being so treated. It specifies that insofar as "illicit trafficking of any controlled substance" is concerned, no conviction triggers "aggravated" status unless it results in an imposed sentence of "at least five years."

 Annexed hereto is a copy of the opinion as amended by this order.

 SO ORDERED.

 September 14, 1994

 New York, New York

 WHITMAN KNAPP, SENIOR U.S.D.J.

 AMENDED MEMORANDUM AND ORDER

 WHITMAN KNAPP, SENIOR DISTRICT JUDGE

 The circumstances relevant to the sentence imposed upon defendant Polanco -- which has been vacated by a panel of the Court of Appeals -- are set forth in its opinion, familiarity with which is assumed. See United States v. Polanco, 29 F.3d 35, Slip Op 597-605 (2d Cir. 1994) (hereinafter "Slip").

 In fixing the sentence, we recognized the existence of a New York Supreme Court practice which had arisen to deal with the huge numbers of "minnows" *fn1" who are regularly brought before it charged with violating N.Y. Penal Code § 220.34, a Class C Felony punishable by up to 15 years. The glut of such cases was threatening to make it impossible to complete any prosecutions within the strictures of defendants' speedy trial rights. The practice which arose to avoid such threatened result was (and continues to be) to let it be generally understood that any "minnow" who pleads guilty to such a felony will be treated at sentence as the minor offender he actually is. We found as a fact that the Sentencing Commission was unaware of this local practice. We further found that, had it been so aware, the Commission would have revised Guideline 2L1.2 to prevent the automatic characterization as "aggravated felonies" of convictions resulting from pleas entered in reliance on this practice. We therefore ruled that there existed circumstances of a kind "not adequately taken into consideration by the Sentencing Commission in formulating the Guidelines." (See Joint Appendix at 37). The panel never mentioned this ruling, or the findings of fact upon which it was based (see Slip passim).

 At the time we made this ruling, we were under the impression that Second Circuit law required us to assume that the Guidelines as written were absolutely inflexible no matter how absurdly unjust the result in a given case might be; and that -- unless we could make the above-mentioned findings -- we were powerless to protect the defendant from such injustice. Cf. The present Chief Judge dissenting from the denial of an application for a hearing en banc in U.S. v. Concepcion (2d Cir. 1992) 983 F.2d 369, 395, cert. denied sub nom (1993) Frias v. United States, 126 L. Ed. 2d 124, 114 S. Ct. 163. Apparently the panel considering our prior sentence was under the same ...


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