The court then sentenced Roman to 132 months, a three-month downward departure from the Guideline range. So the net effect is he has one more year to do after his sentence in New Jersey expires. It also attempted to give Roman credit for the time spent in custody on the New Jersey charges. A 76 month sentence, however, would still represent a downward departure of only three months from the Guideline range. And Roman also challenges the size of this downward departure, arguing that the court reduced the downward departure it would otherwise have granted to offset the effect of the backdating.
Roman points out that all the other defendants received much larger downward departures.
As discussed above, where a district court's failure to grant a downward departure is premised on a mistaken view of the law, it is reviewable. The sentencing transcript is unclear as to whether the district court believed that only a three-month departure was warranted for the defendant's cooperation or whether it improperly believed that it had separately to punish the defendant's two arrests and convictions, even though 5G1.3 and Application Note 2 set out the manner in which the punishment for the defendant's total conduct for the two convictions was to be adjusted. Because it is unclear whether the court's mistake of law affected its decision to grant only a three-month downward departure, we remand to the district court for reconsideration of its downward departure decision and for resentencing in light of that reconsideration and of the applicable Guideline principles discussed above. It appears that the government does not object to this result. We do not doubt that, on remand, Judge Platt will resentence the defendant consistently with the principles expressed in the Guidelines and in this order, and we therefore do not direct that the case be reassigned.