Reasonable minds will disagree on what the answer should be, but in our circuit the answer is no.
What interests me is the rationale, which goes like this: "There is no actual prejudice . . . because there are . . . [sentencing] departures which the district court could make to avoid any prejudice, if it determined that there was unfair prejudice because of the timing of the indictments." [2]
In other words: there is no actual prejudice because the sentencing court can later lower the sentence if it finds that there was actual prejudice.
This is the first argument I'm aware of seeing that assumes what it is trying to disprove.
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NOTES (below the fold)
- On January 1, 2006, defendant D commits offense x.
- On January 1st, 2007, he commits offense y.
- On January 1st, 2008, D is charged by the government for offense y. No charges have been brought for x. The recommended sentence for y is five years. D pleads guilty to y. On February 1st, 2009, the judge sentences D to five years.
- On February 2, 2009 - the very next day after the sentencing for y - the government charges D for offense x (i.e., the offense that had been committed a year before y). The recommended sentence for x is also five years.
- But had x and y been charged together, the total recommended sentence would have been seven years.
- Sentencing judges are permitted to depart (upward or downward) from recommended sentences in the interests of fairness.
2. To wit, does the delay substantially, negatively and non-speculatively affect the defendant's rights? To wit, is the delay unfair?
3. United States v. Gregory, 322 F.3d 1157, 1164 (9th Cir. 2003) (emphasis added) (quoting U.S. v. Martinez, 77 F.3d 332, 336 (9th Cir. 1996).
