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United States v. Morrison

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK


February 1, 2010

UNITED STATES OF AMERICA,
v.
RODNEY ARNOLDO MORRISON, DEFENDANT.

The opinion of the court was delivered by: Hurley, Senior District Judge

MEMORANDUM AND ORDER

The purpose of this Order is to obtain further input from the government and supporting authority regarding its position, as voiced during the January 29, 2010 sentencing proceeding, that it would be inappropriate for me to utilize Fed. R. Civ. P. 32(i)(3)(B) to forego a determination of the hotly disputed and factually problematic amount of tax loss attributable to racketeering acts ("RAs") 5 though 80 for guideline calculation purposes. In making the subject suggestion, I noted that the adjusted offense level of 34 for RAs 5 through 80 (PSR ¶ 82) was rendered essentially irrelevant given (1) my finding that the government had established under U.S.S.G. Guideline § 1B1.3 that RAs 3A, 3B, 3C, and 3D constitute relevant conduct under Count 2, thus producing a total offense after grouping of 47 (id., at ¶ 92), and (2) my indication that the amount of tax loss will not be considered by me directly or indirectly in determining the appropriate sentence.

On January 29, 2010, the defense supported the Court's suggestion as a reasonable alternative to unnecessarily prolonging the sentencing process. The government, however, voiced a contrary view. The Court has done some independent research in an effort to determine the validity of the government's position, thus far without success. Accordingly, the government is directed to file a letter brief in support of its position on or before February 5, 2010, to which the defendant will have until February 10, 2010, to file such response as he deems appropriate.

SO ORDERED.

DENIS R. HURLEY, U.S.D.J.

20100201

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