Posted Sep 28, 2007 01:42 pm CDT
A federal appeals court has bounced a judge off a case for failing to state why he gave a lower-than-recommended sentence to two brothers convicted in a drug operation.
The latest decision marks the third time that U.S. District Judge John Elfvin of Buffalo was removed from cases in the last two years because he failed to explain his departures from the U.S. Sentencing Guidelines, the New York Law Journal reports.
“This pattern of behavior is disturbing evidence of willfulness,” the 2nd U.S. Circuit Court of Appeals concluded in the latest case. The court noted in its opinion (PDF) that it had ordered Elvin to reconsider the drug sentence, but on remand he once again failed to explain his decision. This time the court ordered the case reassigned for sentencing.
An attorney for one of the brothers tried to avoid the latest result by coming to court with a proposed notice offering explanations for the sentence that the judge could read into the record. The notice, “written by defense counsel before the resentence was known, was hardly the product of the judge’s own thinking,” the court said.