Thursday, August 08, 2013

US v. Lee, 11-10460 (8-7-13)(Per curiam with Reinhardt, Thomas and Paez).

A 72 year old woman got involved with meth smuggling in Guam. It did not end well. At sentencing, the court seemed to select the sentence it wanted, configured the guidelines to reach the sentence, gave a departure for substantial assistance but without reference to the mandatory minimum, and then gave a 96 month sentence, which is tantamount to life, with nary a thought. (The opinion pointed out that when the govt argued for 96 months as a life sentence, she said "Okay" without any reflection). In vacating and remanding, the 9th stressed that the court must first correctly calculate the guidelines and use them as a starting point; it cannot pick a sentence and conform the guidelines to fit it. Second, the court erred in finding a high purity. Finally, the court failed to correctly calculate the new revised mandatory minimum, and thus the 9th cannot determine the legality or appropriateness of the sentence. The 9th concludes by instructing the court at resentencing to consider the defendant's age, and the extent of her cooperation.


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