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US vs. Liu

In U.S. v. Liu, the court determined that the failure of the government to grant a treaty transfer can be grounds for a reduction in sentence.

Liu, a Chinese National and Canadian Citizen, was sentenced to 72 months imprisonment for attempting to acquire a chemical weapon in violation of 18 USC 229(a)(1) and (2).

At Liu’s sentencing the prosecutor indicated that they would not oppose Liu’s Treaty Transfer to Canada (a Treaty Transfer is when the BOP transfers an inmate from a foreign country “pursuant to the conditions of the treaty agreement which allows for such transfers.”  And Liu’s plea agreement indicated that “The United States agrees that if the Defendant, following sentencing, seeks a prison transfer to Canadian custody, the United States will not oppose that request.”  Liu also voiced that understanding at her sentencing and indicated that Liu had a Canadian lawyer who also was involved in the plea negotiations.

On the paperwork that is associated with Liu’s request for a treaty transfer the United States indicated that “T[ook] No Position” on the Request. Liu’s compassionate release request was ultimately denied.  Liu retained the office and we fi

The District of North Dakota determined that this was extraordinary and compelling:

“The Court recognizes that the United States Attorney’s Office for the District of North Dakota does not, in isolation, make the final decisions with respect to treaty transfers and international custody transfers. That said, it was evident at sentencing that all the parties, including the undersigned, knew Liu would be applying for a treaty transfer to Canadian custody and the United States would not oppose that request. It was also evident, by Liu’s own words but also the record in this case, that the transfer issue was an essential part of the global resolution.

Liu’s case and plea agreement was, in a word, extraordinary and presents extraordinary and compelling circumstances “other than” those specifically articulated in USSG § 1B1.13. On the unique and specific facts of this case, the Court agrees with Liu and finds that the inconsistent recommendation concerning the treaty transfer and subsequent denial of the transfer presents extraordinary and compelling reasons for a sentence reduction § 3582(c)(1)(A).”

The Court also found that Liu otherwise met the 3553(a) factors for release and granted the reduction. See U.S.v. Liu, 3:19-cr-00042-PDW (District of North Dakota, 11/22/22)

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