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In Summary Order, Court Vacates Above-Guidelines Sentence for Lack of Justification, But Denies Request to Remand to Different Judge

Franco Lupoi was sentenced to 156 months on money laundering conspiracy and heroin trafficking conspiracy charges, in excess of the applicable Guidelines range and the 135 month sentence requested by the government. In its written statement of reasons, the district court cited several of the § 3553(a) factors without applying them and adopted the presentence report’s findings of fact, but did not adopt the report’s Guidelines-recommended range or check the boxes in the written judgment acknowledging that it had varied from that range. Reviewing for plain error, the Second Circuit (Katzmann, Kearse, Livingston) vacated the sentence in a summary order, reasoning that the court was required to state with specificity the reasons for the above-Guidelines sentence, and explain why the degree of variation was justified. United States v. Lupoi, No. 15-3766. The district court’s failure to explain why it had imposed a sentence “that exceeded the applicable Guidelines sentence by 36 months and exceeded the sentence requested by the government by 21 months” amounted to plain error because it precluded meaningful appellate review and undermined public confidence in the proceedings. The Court denied Lupoi’s request that the case be remanded for resentencing before a different judge, choosing to allow the district court to explain its reasons “for whatever sentence it decides to impose.” 

Reading between the lines, the panel seems to have had a concern that this above-the-range sentence should not have been imposed.  The finding of procedural error will require the district court to provide a do-over—but before the same judge that upwardly varied from the Guidelines in the initial sentencing.