United States v. Camilo

• Court: Court of Appeals for the First Circuit
• Decided: August 8, 1994
• Docket: 94-1099
• Status: Published

Opinion

USCA1 Opinion

August 8, 1994        [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

_________________________

          No. 94-1099

                              UNITED STATES OF AMERICA,

                                      Appellee,

                                          v.

                                     BLAS CAMILO,

                                Defendant, Appellant.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF NEW HAMPSHIRE

                 [Hon. Joseph A. DiClerico, Jr., U.S. District Judge]
                                                 ___________________

                              _________________________

                                        Before

                      Torruella, Selya, and Cyr, Circuit Judges.
                                                 ______________

                              _________________________

               Daniel  S. Tarlow, with whom Richard D. Glovsky and  Glovsky
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          & Associates were on brief, for appellant.
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               Jean B.  Weld, Assistant  United States Attorney,  with whom
               _____________
          Paul M. Gagnon,  United States  Attorney, was on  brief, for  the
          ______________
          United States.

                              _________________________

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Per Curiam.   We have carefully reviewed  the record on
                    Per Curiam.
                    __________

          appeal  and discern  no  breach by  the  government of  the  plea

          agreement between it and the defendant.  We likewise find no hint

          that  the district court violated  the representations it made to

          the defendant at the change-of-plea hearing.  Consequently, there

          is  no cognizable  basis  for  defendant's  request  that  he  be

          permitted to withdraw his guilty plea.

                    Defendant's  remaining assignments of  error pertain to

          the imposition of  sentence.   The situation in  this respect  is

          clouded by two recent developments.  For one thing, the Probation

          Office's  policy in  connection  with a  matter  material to  the

          computation of  drug quantity for purposes  of imposing mandatory

          minimum sentences has changed  significantly.  For another thing,

          the Second Circuit decided United States v. Darmand, 3 F.3d 1578,
                                     ________________________

          1581  (2d Cir.  1993)  (holding that  "[u]nlike the  [Sentencing]

          Guidelines, which require a  sentencing court to consider similar

          conduct in  setting a  sentence, the statutory  mandatory minimum

          sentences  of 21  U.S.C.    841(b)(1) apply  only to  the conduct

          which actually  result[s] in  a conviction under  that statute").

          If this case correctly states the law   a matter on which we take

          no view   it  may have substantial implications for  the duration

          of defendant's sentence.   Under these unusual circumstances, the

          parties  agreed at  oral argument  that these  developments merit

          further consideration; and that, in the interests of justice, the

          sentence  previously  imposed  should  be  expunged,  and  a  new

          sentencing  hearing convened.   We agree.   We, therefore, vacate

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the defendant's sentence and remand for resentencing.1

                    The   defendant's   conviction   is   affirmed.     The
                    _______________________________________________     ___

          defendant's sentence  is  vacated.    The case  is  remanded  for
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          resentencing.
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               1We envision that a full new sentencing hearing will be held
          at which the court can consider not only the applicability of any
          mandatory minimum sentence, but also, inter alia, the reliability
                                                _____ ____
          of   the  evidence  proffered  by  the  parties  and  the  proper
          computation of defendant's criminal history score.

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