August 8, 1994 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 94-1099
UNITED STATES OF AMERICA,
Appellee,
v.
BLAS CAMILO,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, Jr., U.S. District Judge]
Before
Torruella, Selya, and Cyr, Circuit Judges.
Daniel S. Tarlow, with whom Richard D. Glovsky and Glovsky
& Associates were on brief, for appellant.
Jean B. Weld, Assistant United States Attorney, with whom
Paul M. Gagnon, United States Attorney, was on brief, for the
United States.
Per Curiam. We have carefully reviewed the record on
Per Curiam.
appeal and discern no breach by the government of the plea
agreement between it and the defendant. We likewise find no hint
that the district court violated the representations it made to
the defendant at the change-of-plea hearing. Consequently, there
is no cognizable basis for defendant's request that he be
permitted to withdraw his guilty plea.
Defendant's remaining assignments of error pertain to
the imposition of sentence. The situation in this respect is
clouded by two recent developments. For one thing, the Probation
Office's policy in connection with a matter material to the
computation of drug quantity for purposes of imposing mandatory
minimum sentences has changed significantly. For another thing,
the Second Circuit decided United States v. Darmand, 3 F.3d 1578,
1581 (2d Cir. 1993) (holding that "[u]nlike the [Sentencing]
Guidelines, which require a sentencing court to consider similar
conduct in setting a sentence, the statutory mandatory minimum
sentences of 21 U.S.C. 841(b)(1) apply only to the conduct
which actually result[s] in a conviction under that statute").
If this case correctly states the law a matter on which we take
no view it may have substantial implications for the duration
of defendant's sentence. Under these unusual circumstances, the
parties agreed at oral argument that these developments merit
further consideration; and that, in the interests of justice, the
sentence previously imposed should be expunged, and a new
sentencing hearing convened. We agree. We, therefore, vacate
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the defendant's sentence and remand for resentencing.1
The defendant's conviction is affirmed. The
defendant's sentence is vacated. The case is remanded for
resentencing.
1We envision that a full new sentencing hearing will be held
at which the court can consider not only the applicability of any
mandatory minimum sentence, but also, inter alia, the reliability
of the evidence proffered by the parties and the proper
computation of defendant's criminal history score.
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