The opinion of the court was delivered by: WEINSTEIN
WEINSTEIN, Senior District Judge:
V Avoiding Guideline Injustices
B. Moderating Effects of Acquitted Conduct
C. Changing Preponderance-of-Evidence Standard
D. Techniques Employed by Prosecutors and Judges
VI Requiring "Specific Evidence" as a Mitigation Technique
A. Incompatibility with Rules of Evidence
B. Courts' Urge to do Justice
This cause for resentencing suggests some of the quandaries faced by trial and appellate judges in attempting to minimize the injustices and inutile cruelties required by the Sentencing Guidelines. The court of appeals' mandate requiring a reduced sentence of at least 97 months in prison must be followed. Even as reduced by the court of appeals the sentence is harsh by pre-Guideline standards. The reduction required by the court of appeals is thus desirable as a matter of policy and fairness. Unfortunately, the technique and rationale utilized by the court of appeals in justifying the result is of dubious validity.
In United States v. Shonubi, 802 F. Supp. 859 (E.D.N.Y. 1992) ("Shonubi I"), the trial court found that the defendant had made eight related heroin smuggling trips; it sentenced him, based on a total estimated quantity of 3419.2 grams with a Guideline range of 151 to 188 months, to 151 months in prison. In United States v. Shonubi, 998 F.2d 84 (2d Cir. 1993) ("Shonubi II") the court of appeals concurred with the trial court's finding that defendant engaged in eight related smuggling trips -- making this the law of the case -- but remanded because it was not satisfied with the basis for the finding of the total amount smuggled. It held, "We agree with the District Court's factual determination that Shonubi's travel ... was part of the same course of conduct as the instant offense." Id, at 89.
In United States v. Shonubi, 895 F. Supp. 460 (E.D.N.Y.1995) ("Shonubi III), after extensive evidentiary hearings and experts' reports, the trial court found the total smuggled amount to be between one to three kilograms. It resentenced the defendant to 151 months -- the lowest point in the adjusted applicable Guidelines range of 151 to 188 months. In United States v. Shonubi, 103 F.3d 1085 (2d Cir. 1997) ("Shonubi IV") the court of appeals reversed and ordered that the defendant's sentence be based only on the "quantity of drugs Shonubi carried on the night of his arrest" -- 427.4 grams. Id. at 1092. Adjusted upward by two levels for perjury, as required by Shonubi II, this leads to a guideline range of 97 to 121 months.
Upon remand, defendant, who has no prior record and was gainfully employed, is sentenced to the lowest point in the Guideline range now required by the court of appeals, 97 months in prison. Since he has no known assets he is not fined, but is assessed $ 50 as required by law. A supervised release term of five years will not need to be served in this country. It is assumed ...