In United States v. Spitsyn, No. 09-4698-cr (2d Cir. December 16, 2010), the court agreed with the parties that the district court relied on clearly erroneous findings of fact in a bank fraud case to support ts finding that all of the checks the defendants cashed were relevant conduct. However, the court rejected the defendant's request that the court order that the resentencing occur on the existing record. Instead, the district court will have the discretion to reopen the record if it sees fit.
In United States v. Roseboro, No. 09-5002-cr (2d Cir. December 8, 2010), although the court agreed that the district court erred in attributing criminal history points to a conviction that fell outside the applicable time periods set out in U.S.S.G. § 4A1.2(e) and (k)(2), it found that the error was harmless. The sentence the district court selected was a within-Guideline sentence even in the lower criminal history category, and the district judge made clear that he would have imposed the same sentence regardless of the defendant's criminal history category.
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