Appellate Law

CA1: strange case on double-counting of non-remorse

By S. COTUS

US v. Cruzado-Laureano, No. 06-1815.  This is the defendant?s third appeal.  The First two were successful.  See United States v. Cruzado-Laureano, 440 F.3d 44, 45 (1st Cir. 2006) (our coverage here); and United States v. Cruzado-Laureano, 404 F.3d 470, 473-79 (1st Cir. 2005)(our coverage here).

The most interesting issue is whether a failure to express remorse can sort-of be double-counted as the guidelines function ?to disqualify a defendant from receiving a reduction in offense level for acceptance of responsibility and as a factor in determining the defendant's particular sentence within the Guidelines range.?  He argues that he has a constitutional right to maintain his innocence.  The First cites a smattering of caselaw about this difficult issue but provides no real analysis.  Their own caselaw deals with the issue of ?acceptance of responsibility? which I see as different.

The First says that the District Court judge wasn?t biased enough to warrant recusal because he denied him bail.

The First says that limiting the number of witnesses he could call wasn?t a problem, and was actually quite generous (and wasn?t an allocation problem). 

The First says that it isn?t the default rule that a remand for re-sentencing is ?de novo.?  It acknowledges that in other circuits, this is the rule. 

The First says that a number of issues were waived because they were not developed at earlier hearings, and even though he prevailed in a later appeal that doesn?t give him another bite at the apple.

Full post as published by Appellate Law and Practice on June 04, 2008 (boomark / email).