Tuesday, April 4, 2006

"Non 5K Cooperation"

The Second Circuit Sentencing Blog (Harlan J. Protass) reports here on an important sentencing decision from the Second Circuit. In the case of United States v. Fernandez, Docket No. 05-1596-cr (2d Cir. April 3, 2006), the Second Circuit held that a judge has the "power to reduce ... [a] sentence in light of 'non 5K cooperation' under 18 U.S.C. ยง 3553(a), as long as the sentence imposed was reasonable..."  This reduction was not mandatory and not required in the drug case the court was deciding.  But it is significant that the court is allowing "non 5K cooperation" to be considered as part of the reasonableness review.

In the white collar case this may prove significant in sentencing decisions, especially for those who want to reduce a sentence but are not privileged enough to receive a 5K1.1 substantial assistance motion from the government. This language in the decision removes some of the prosecutorial power in being the exclusive body that could authorize a departure outside the guidelines.  It places some of this power in the hands of the judiciary.  This case is a step in the right direction of having the three branches properly balanced.



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