United States v. Shand, No. 13-227-cr (2d Cir. Jan. 13, 2014) (Pooler, Parker, and Wesley), available here
This summary has been provided by noted criminal defense attorney Francisco Celedonio, who also serves on the Board of Directors of Federal Defenders of New York, Inc.:
In this illegal reentry case under 8 U.S.C. § 1326(a) and (b)(2), the Circuit affirmed a 77-month sentence imposed following the district court's (Judge Irizarry's) denial of a "fast-track" downward departure motion pursuant to U.S.S.G.§ 5K3.1.
Shand was arrested in 2011 after he produced false identification at a traffic stop. ICE determined that he had been previously deported and had reentered without authorization. Shand was thus indicted for being "found in the United States," in violation of 8 U.S.C. § 1326(a). Shand signed a plea agreement under the EDNY's "fast-track" program, which yielded an estimate offense level 16 in CHC III, including a four-level reduction under U.S.S.G. § 5K3.1. At the time the agreement was reached, the government believed that Shand had entered the U.S. in 2011. But during the presentence investigation, Probation discovered that Shand had reentered in 2004, not 2011, and that he had a substantially greater criminal history than anticipated: the PSR concluded that Shand was in CHC VI, with a guidelines range of 77-96 months. Regardless, the government moved for the fast-track reduction, but the motion was denied by Judge Irizarry. She sentenced Shand to 77 months of imprisonment.
On appeal, Shand argued that the district court was required to grant the government's departure motion. But the Circuit affirmed the sentence, holding that, under U.S.S.G. § 5K3.1, a district court is permitted, but not required, to grant a "fast-track" departure on the government's motion.