What is the test for a motion to vacate or remand a sentence that would have been vacated or vacated?
The following excerpt is from U.S. v. Lanese, 937 F.2d 54 (2nd Cir. 1991):
Finally, we reject Lanese's request that his sentence be vacated and the case remanded so that the district judge can explain the disparity between Lanese's sentence and the lesser sentences of his codefendants. Having concluded that the guidelines were properly applied as to Lanese, we fail to see the purpose of a remand. United States v. Joyner, 924 F.2d 454, 459-61 (2d Cir.1991), forecloses the possibility of departure on the basis of disparity among codefendants' sentences. Furthermore, "[i]t is settled law in this circuit that a defendant generally may not appeal from a district court's decision not to depart downwardly from the applicable Guidelines range...." United States v. Sharpsteen, 913 F.2d 59, 62 (2d Cir.1990).
The judgment of conviction is affirmed.
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