This month, we discuss United States v. Johnson,1 in which the U.S. Court of Appeals for the Second Circuit vacated a District Court sentencing order and remanded for resentencing with recommendations. In its decision, written by Circuit Judge Roger J. Miner and joined by Circuit Judges Reena Raggi and Debra Ann Livingston, the court ruled that in sentencing a criminal defendant who had entered into a cooperation agreement with the government, the district court erred in effectively refusing to consider the extent of the defendant’s cooperation following the defendant’s breach of one provision of the agreement, notwithstanding that the government chose to honor the agreement by submitting a letter pursuant to Section 5K1.1 of the United States Sentencing Guidelines. The Second Circuit held that the district court was required to conduct a resentencing under the procedures established by United States v. Crosby2 and consider the effect of the defendant’s cooperation during that resentencing.
Background and History
Gregory Timewell, the defendant-appellant, was a native of New Zealand who smuggled and distributed illegal drugs for a number of years. By the mid-1990s, Mr. Timewell had expanded his operations worldwide, as part of a conspiracy with numerous other individuals (including his co-defendants), ultimately smuggling tons of marijuana and hashish. Mr. Timewell personally accumulated millions of dollars of assets in connection with his activities. The conspiracy was eventually infiltrated by the Drug Enforcement Administration (DEA), and Mr. Timewell was arrested in Canada in 1995 and was subsequently indicted in the Eastern District of New York.
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