US v. Gunning

No. 04-30104 (3-31-05). Lets try to get it right this time, says the 9th. This appeal is up again. The defendant was convicted of wire fraud. The first time, the district court failed to specify a restitution schedule for the defendant, leaving it up to Probation. The 9th held that the court had to set the schedule and sent it back. At resentencing, the court set a restitution schedule for supervised release (10% of gross income), but none for the time the defendant was in BOP custody. This was error: the court has to set some parameters or guidelines. The 9th also found error in the district court failing to allow for allocution. The sentencing happened so fast that the defendant didn't have a chance to say anything until after the court sentenced and it was too late. The govt's argument that the limited mandate (restitution schedule) or the fact the defendant did ask for family considerations (but after the sentencing) didn't excuse the lack of allocution. This case has a good overview of allocution law and how it is always prejudicial not to afford allocution when there is any discretion. The 9th stressed that it was remanding for resentencing. It appears, therefore, that Booker will come into play now (although the defendant is getting close to the end of his 57 mos. sentence).
This is a Fernandez opinion. As such, the "unusual or extraordinary" words outside the "heartland" of the usual opinion are "expatiate" and "recrudescent".