U.S. v. Pico, 1414
| Decision Date | 08 June 1992 |
| Docket Number | D,No. 1414,1414 |
| Citation | 966 F.2d 91 |
| Parties | UNITED STATES of America, Appellee, v. William PICO, Defendant-Appellant. ocket 91-1756. |
| Court | U.S. Court of Appeals — Second Circuit |
Alan Bleiman, Fairfield, Conn., for defendant-appellant.
Theodore B. Heinrich, Asst. U.S. Atty., D. Conn., Bridgeport, Conn. (Albert S. Dabrowski, U.S. Atty., D. Conn., New Haven, Conn., on the brief), for appellee.
Before: TIMBERS, MESKILL and NEWMAN, Circuit Judges.
This is an appeal from a judgment of conviction entered in the United States District Court for the District of Connecticut, Cabranes, J. Appellant William Pico pleaded guilty to conspiring to import cocaine in violation of 21 U.S.C. §§ 960(a), 963. The district court sentenced Pico to 121 months incarceration at a federal work camp followed by a life term of supervised release.
Pico directed his appointed counsel to appeal the judgment of conviction. Counsel apparently attempted to communicate with Pico concerning the appeal, but, owing in part to Pico's transfer from Connecticut to Texas, and to Pico's inability to speak English, counsel was unable to discover a reason for Pico's requested appeal. After purporting to review the entire proceedings before the district court, counsel filed a brief in this Court, pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), requesting to be relieved as appellate counsel. In light of his inability to speak with his client concerning the appeal, however, counsel requested that the appeal not be dismissed and that successor counsel be appointed to pursue any issues Pico wished to address. The government moved for summary affirmance of the conviction.
Pico was convicted of conspiring to violate 21 U.S.C. § 960(a). 21 U.S.C. § 960(b)(1)(B) provides that for violations of section 960(a) that, like this one, involve five kilograms or more of cocaine, "[a]ny sentence under this paragraph shall ... impose a term of supervised release of at least 5 years in addition to such term of imprisonment." United States Sentencing Guidelines (Guidelines) § 5D1.2(a) provides:
If a defendant is convicted under a statute that requires a term of supervised release, the term shall be at least three years but not more than five years, or the minimum period required by the statute, whichever is greater.
The only supervised release term that was consistent with both the statute and the Guidelines was five years. Thus, the life term of supervised release imposed by the district court was outside the Guidelines range.
A district court may, of course, depart from a properly calculated Guidelines range if it finds "that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that...
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U.S. v. Gordon
...the error on appeal did not have prior notice of the possible application of the sentence imposed. Id. at 755 (citing United States v. Pico, 966 F.2d 91 (2d Cir.1992) (finding "clear error" where a sentence outside the Guidelines range was imposed without explanation and against the recomme......
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U.S. v Gordon, 00-1122
...error on appeal did not have prior notice of the possible application of the sentence imposed. Id. at *5 (citing United States v. Pico, 966 F.2d 91 (2d Cir. 1992) (finding "clear error" where a sentence outside the Guidelines range was imposed without explanation and against the recommendat......
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U.S. v. Sash, Docket No. 04-0499-CR.
...term of supervised release imposed by the District Court constituted plain error. See Fed.R.Crim.P. 52(b); United States v. Pico, 966 F.2d 91, 92 (2d Cir.1992) (per curiam) (citing United States v. Rodriguez, 943 F.2d 215, 216-17 (2d Cir.1991)). Accordingly, the District Court's judgment im......