§197 Resentencing On Remand After Appeal
Supreme Court to decide if First Step Act court must consider developments since original sentencing. (197) (250) Defendant pleaded guilty to a crack cocaine offense and was sentenced as a career offender to 228 months. After the passage of the First Step Act, he moved for a reduction in sentence. The district court denied the motion even though it found that defendant was eligible for a reduction. On appeal, the First Circuit ruled that in considering a First Step Act reduction, the district court is not required to recalculate defendant’s guidelines range. 991 F.3d. 279. The Supreme Court granted certiorari to decide whether the district court is required to consider developments since the original sentencing in ruling on a First Step Act motion. Concepcion v. U.S., __ U.S. __, 142 S.Ct. __ (Sept. 29, 2021) (granting certiorari).
6th Circuit says Covid-19 pandemic did not require a lower sentence on limited remand. (150)(197) At resentencing after remand, defendant sought a lower sentence because of the danger of getting Covid-19 in prison. The district court denied the request, commenting that only Congress and the Sentencing Commission could resolve that question. On appeal the Sixth Circuit found that the question was outside the scope of its limited remand. U.S. v. Hymes, __ F.4th __ (6th Cir. Dec. 3, 2021) No. 20-5905.
6th Circuit find no error in failing to address post-sentence rehabilitation on remand. (197)(770) The Sixth Circuit remanded for reconsideration of defendant’s sentence. On remand to reconsider defendant’s sentence, the district court declined to address defendant’s arguments that his post-sentence rehabilitation justified a shorter sentence. The Sixth Circuit affirmed, holding that defendant’s rehabilitation was outside the scope of the remand and that, in any event, a district court is not required to address every factor that the defendant raises. U.S. v. Hymes, __ F.4th __ (6th Cir. Dec. 3, 2021) No. 20-5905.
9th Circuit reverses for denying sentence reduction without considering developments since sentencing. (197)(240) After guideline amendment 782 reduced drug guidelines, defendant moved for a sentence reduction under 18 U.S.C. § 3582(c)(2). The district court found defendant eligible, but denied the motion, indicating that it could not consider the fact that defendant was no longer subject to a 20-year mandatory minimum after U.S. v. Valencia-Mendoza, 912 F.3d 1215 (9th Cir. 2019). The Ninth Circuit reversed, holding that in ruling on a motion for a reduced sentence, the court must consider intervening statutory and judicial developments after the sentence was imposed, including changes to mandatory minimum sentences. These changes are relevant to the 18 U.S.C. § 3553(a) factors. U.S. v. Lizarraras-Chacon, __ F.4th __ (9th Cir. Sept. 23, 2021) No. 20-30001.
5th Circuit upholds attributing cash to drug trafficking. (197)(254) At defendant’s sentencing for drug trafficking, the district court did not make findings before it attributed all the currency found in defendant’s home to drug trafficking. On appeal, the Fifth Circuit remanded for findings regarding the currency. On remand, the district court made three findings attributing the currency to defendant’s drug trafficking as relevant conduct. The Fifth Circuit found that the district court’s findings complied with its mandate. U.S. v. Johnson, __ F.4th __ (5th Cir. Sept. 16, 2021) No. 20-11046.
6th Circuit says remand was limited to single issue. (197) There is a presumption that a general remand after reversal on appeal permits complete resentencing. But in this case, Sixth Circuit noted that the remand was limited to the issue whether defendant was a career offender. Accordingly, the district court properly limited the resentencing to that issue. U.S. v. Johnson, __ F.4th __ (6th Cir. Aug. 27, 2021) No. 20-5980.
7th Circuit, on resentencing, counts conviction that became final after initial sentence. (197)(504) When defendant was initially sentenced, his burglary conviction in state court was not final. Thereafter, the Seventh Circuit reversed his federal conviction and remanded for recalculation of drug weight. By the time of resentencing, defendant’s state burglary conviction was final, and the district court counted it in defendant’s criminal history. In this second appeal, the Seventh Circuit affirmed, holding that defendant’s now-final burglary conviction was properly counted in criminal history. U.S. v. Hopper, __ F.4th __ (7th Cir. Aug. 25, 2021) No. 20-1162.
9th Circuit affirms refusal to reduce firearms sentence despite drug amendment. (197)(240) In 2005, defendant was sentenced for drug-trafficking and firearms. After Amendment 782 retroactively reduced the drug guidelines, the district court reduced defendant’s sentence by a few months, but added that even assuming that defendant’s firearm conviction was affected by Amendment 782, it would not reduce the sentence further. On appeal, the Ninth Circuit ruled that because the district court assumed that Amendment 782 affected defendant’s firearm conviction, any error was harmless. U.S. v. Wilson, __ F.4th __ (9th Cir. Aug. 11, 2021) No. 20-50015.
2d Circuit reverses order requiring government to file substantial assistance motion. (197)(710) Defendant pleaded guilty to conspiring to entice a minor to engage in sexual conduct, an offense that carries a 15-year mandatory minimum. The district court found that the government acted in bad faith in refusing to make “substantial assistance” motion under 18 U.S.C. § 3553(e), and sentenced defendant to five years—below the mandatory minimum. The government appealed, noting that the plea agreement gave it “sole discretion” to file a substantial assistance motion, and that indeed the government made a motion under § 5K1.1, which reduced defendant’s sentence. The Second Circuit found that the government’s refusal to make a § 3553(e) motion was not in bad faith and remanded to a different district judge for resentencing. U.S. v. Trimm, __ F.3d __ (2d Cir. June 2, 2021) No. 20-2264.
5th Circuit applies two-level reduction in drug guidelines despite concurrent marijuana sentence. (197) Defendant pleaded guilty to conspiracy to distribute cocaine and conspiracy to distribute marijuana. His cocaine guidelines range was 292 to 365 months, and the range for his marijuana offense was the statutory maximum 240 months. At sentencing, the district court departed down three levels for substantial assistance, to concurrent terms of 210 months. When the Sentencing Commission later lowered drug offense levels by two levels, defendant moved for sentence reduction. The district court denied the motion on the ground that the guidelines for the marijuana offense had not changed. The Fifth Circuit reversed, holding that the applicable guideline range was the higher range for the cocaine count, not the statutory maximum for the marijuana count, so defendant was eligible for a reduction. U.S. v. Lopez, __ F.3d __ (5th Cir. Feb. 26, 2021) No. 17-50806.
8th Circuit affirms upward variance in murder case for firing a gun into a van. (210)(741) Defendant participated in a murder on an Indian reservation. His guidelines range was 210 to 262 months, but the court varied upward to 300 months. Defendant argued that the district court gave too much weight to the fact that he fired a handgun into a van. The Eighth Circuit affirmed, holding that the district court properly concluded that firing a firearm into a van risked injury to people other than the victim. U.S. v. Shoulders, __ F.3d __ (8th Cir. Feb. 25, 2021) No. 19-2832.
10th Circuit affirms upward variance on remand for bomb maker. (197)(330)(741) Defendant built three bombs and pleaded guilty to arson and firearms offenses. He was sentenced to 20 years. Later, he filed a 28 U.S.C. § 2255 motion and successfully invalidated his firearms offenses. On remand, the district court varied upward from the guidelines range of 60 months and sentenced him to 144 months. On appeal, defendant argued that the court (1) gave substantial weight to his invalidated sentence, (2) refused to credit him for assisting the government, (3) sentenced him as if he had intended to maximize injury and death, and (4) failed to consider that no one was injured. The Tenth Circuit found no error, finding that the court addressed defendant’s arguments, and applied the appropriate factors. U.S. v. Lawless, __ F.3d __ (10th Cir. Nov. 2, 2020) No. 20-1173.
7th Circuit says when sentence is based on earlier Manual, court need not apply retroactive amendment. (197) Defendant was sentenced in 2019 using the 2005 Guidelines Manual for a crack cocaine offense. After the 2005 Manual was published, the Commission lowered the penalties for crack cocaine retroactively. Defendant argued that the court should have granted him a sentence reduction directly, rather that requiring him to file a separate motion under 18 U.S.C. § 3582(c)(2). The Seventh Circuit rejected the argument, holding that the district court was not required to grant a § 3582(c)(2) reduction on its own motion, and that defendant could later move for a reduction. U.S. v. Bethany, __ F.3d __ (7th Cir. Sept. 15, 2020) No. 19-1754.
6th Circuit, on second appeal, finds downward variance in child porn case still unreasonable. (197)(310) (742) Defendant pleaded guilty to possession of child pornography. His guidelines range was 97 to 120 months. The district court sentenced him to 12 months. The government appealed, and the Sixth Circuit found the sentence substantively unreasonable. On remand, the district court imposed the same sentence, criticizing the Sixth Circuit for “second-guessing” the sentence and stating that defendant’s conduct was “less exaggerated” than the Sixth Circuit realized. The Sixth Circuit again reversed, ruling that the sentence remained substantively unreasonable. The court ordered the case reassigned to a different judge on remand. U.S. v. Schrank, __ F.3d __ (6th Cir. Sept. 14, 2020) No. 19-5903.
8th Circuit remands again to allow district court to consider all sentencing issues. (197)(850) Defendant pleaded guilty to drug trafficking. At sentencing, the district court relied in part on a prior Illinois conviction under a statute that the Illinois Supreme Court found partially unconstitutional. In the first appeal, the Eighth Circuit remanded to allow the district court to consider whether to use the conviction. On remand, the district court believed that it was limited to the Illinois conviction. In this second appeal, the Eighth Circuit held that the remand was not limited, and the district court was free to consider any sentencing issue on remand. U.S. v. Hamilton, __ F.3d __ (8th Cir. Feb. 19, 2020) No. 18-2436.
6th Circuit finds no right to allocute on limited remand. (197)(760) The Sixth Circuit remanded defendant’s case to allow the district court to consider the effect of a Supreme Court opinion. The district court allowed defendant to speak, but defendant challenged his conviction, and the district court terminated his allocution. The Sixth Circuit ruled that although Fed. R. Crim. P. 32(i)(4)(A)(ii) gives a defendant the right to speak at sentencing, there is no right to allocute at resentencing under a limited remand. U.S. v. Richardson, __ F.3d __ (6th Cir. Jan. 27, 2020) No. 17-2157.
7th Circuit says remand for resentencing should include counts not affected by appeal. (197)(215) Defendants were convicted of kidnapping and using or carrying a firearm during the kidnapping, in violation of 18 U.S.C. § 924(c). The Seventh Circuit vacated the § 924(c) convictions, but remanded for resentencing on all counts, noting that under Dean v. U.S., 137 S.Ct. 1170 (2017), the district court may consider a statutory mandatory minimum sentence in sentencing on other counts. Without the § 924(c) count, the district court would have the power to enhance the sentence on the other counts under § 2A4.1(b)(2). for use of a dangerous weapon. U.S. v. Brazier, __ F.3d __ (7th Cir. Aug. 12, 2019) No. 16-4258.
9th Circuit remands even though district court said sentence would be same on remand. (197)(850) At defendant’s sentencing, the district court imposed a mandatory minimum sentence. The court then considered the factors under 18 U.S.C. § 3553(a) and said it would impose the same sentence even if the mandatory minimum did not apply. On appeal, the Ninth Circuit held that the mandatory minimum did not apply. Nevertheless, the panel remanded for resentencing because defendant had not submitted to a presentence interview and had not filed a sentencing memorandum because he was under the impression that the mandatory minimum would apply. The panel found that the district court should be permitted to consider defendant’s submissions before imposing sentence. U.S. v. Graves, __ F.3d __ (9th Cir. May 30, 2019) No. 16-50276.
10th Circuit allows government to supplement the record on remand for resentencing. (197)(850) The Tenth Circuit vacated a sentence and remanded. Defendant requested that the remand be based on the existing record and that the government should not be allowed to present additional evidence. The Tenth Circuit found that it would not exercise its discretion to deny the government the ability to supplement the record on remand. The court relied on the “particular circumstances” present in this case, including the fact that the district court conducted its own investigation of defendant’s relevant conduct. U.S. v. Aragon, __ F.3d __ (10th Cir. Apr. 29, 2019) No. 18-1121.
3d Circuit bars government from presenting additional evidence on remand. (197) The Third Circuit vacated a sentence because the government had not proved the quantity of drugs on which the district court based the sentence. The court held that on remand the government would not be able to present new evidence to carry its burden to show that defendant possessed with intent to distribute the quantity on which the district court-based defendant’s original sentence. The court found no “persuasive reason” to allow the government to present additional evidence of drug quantity. U.S. v. Rowe, __ F.3d __ (3d Cir. Apr. 2, 2019) No. 18-1192.
10th Circuit affirms despite little change in sentence after reversal and remand. (197) Defendant pleaded guilty to bank robbery and received a time-served sentence. The government appealed, and the Tenth Circuit reversed the sentence as substantively unreasonable. In its mandate, the panel said the sentence allowed defendant to “avoid any punishment” and that the sentence gave little or no weight to punishment, general deterrence, incapacitation, respect for the law, and the avoidance of unnecessary sentencing disparities. On remand, the district court sentenced defendant to 10 years’ probation, two years’ home confinement, and 500 hours of community service. The Tenth Circuit affirmed, holding that its mandate did not require the district court to impose a sentence of imprisonment and that the sentence did not violate the mandate in resentencing defendant. U.S. v. Walker, __ F.3d __ (10th Cir. Mar. 25, 2019) No. 17-4103.
1st Circuit limits government’s argument on remand to the argument made on appeal. (197)(850) Defendant was found to be a career offender at sentencing. On appeal, the government admitted that the district court erred in finding defendant was a career offender, but argued that defendant nevertheless qualified as a career offender on a different ground. The First Circuit found error and remanded. However, it held that the government was “limited in the arguments it may make on remand” to the argument it had made on appeal and could not argue that defendant was a career offender based on the original ground accepted by the district court. U.S. v. Reyes-Rivas, __ F.3d __ (1st Cir. Nov. 28, 2018) No. 16-2008.
9th Circuit says remedy for multiplicitous counts is resentencing. (197)(850) The Ninth Circuit found that an indictment was multiplicitous in charging four counts instead of one, in violation of the Double Jeopardy Clause. The panel rejected defendant’s argument that he was entitled to a new trial because of the multiplicity and instead remanded for resentencing on a single count. The court explained that the evidence would be the same at a retrial on a single count. U.S. v. Chilaca, __ F.3d __ (9th Cir. Nov. 26, 2018) No. 17-10296.
8th Circuit holds that issues cannot be raised for first time on appeal from resentencing. (197)(850) In his appeal from his resentencing, defendant sought to raise two issues concerning his original sentencing. Because both issues arose at his original sentencing and could have been raised in his initial appeal, the Eighth Circuit held that defendant could not raise them on his second appeal. U.S. v. Binkholder, __ F.3d __ (8th Cir. Nov. 20, 2018) No. 17-2688.
1st Circuit finds any error in failing to consider minor role amendment was harmless. (192)(197)(445) Defendant was convicted of Hobbs Act robbery and firearms charges. On three previous occasions, for various reasons, the case was reversed and remanded for resentencing. In his fourth appeal, defendant argued that the 2015 Minor Role Amendment 794, which modified the commentary to guideline § 3B1.2, after his third appeal, entitled him to a mitigating role reduction. He argued that the a was a significant change that permitted the district court to recalculate his offense level, even though this exceeded the scope of remand. The First Circuit found it unnecessary to address the issue because any error was harmless. The district court stated that even if it were to consider a minor role reduction, the case did not warrant it. There was no dispute that defendant participated in a crime that resulted in a death, and defendant sustained a bullet wound in his back. There were no co-defendants against which defendant’s culpability could be compared. U.S. v. García–Ortiz, __ F.3d __ (1st Cir. Sept. 17, 2018) No. 16-1405.
1st Circuit rejects claim that restitution was “punitive” response to successful appeal. (197)(610) Defendant was convicted of aiding and abetting a Hobbs Act robbery, and related firearms charges. For various reasons, the case was reversed, and remanded for resentencing. On remand following his second appeal, the district court imposed, for the first time, a restitution order. On defendant’s third appeal, the appellate court ordered a limited remand because the district court had mistakenly “continued” a restitution order that it had neglected to impose in the first instance. On remand, the district court formally ordered $30,000 restitution, a reduction from the initial order of $60,000. The First Circuit affirmed, rejecting defendant’s argument that the order was a “punitive” response to his successful appeal. Restitution is mandatory under 18 U.S.C. § 3663A(a)(1), which says the district court “shall order … restitution” for convictions for crimes of violence. Defendant he did not challenge the amount of restitution or any other aspect, other than its existence. U.S. v. García–Ortiz, __ F.3d __ (1st Cir. Sept. 17, 2018) No. 16-1405.
6th Circuit says amendment reducing crack guidelines did not apply to career offender. (120)(192) (197) In 1996, defendant was convicted of drug and weapons charges, and sentenced to 35 years. He successfully moved for a sentence reduction under § 3582(c)(2) based on amendments to the crack guidelines. On appeal, the Sixth Circuit reversed, holding that as a career offender, defendant was not eligible for the reduction. On remand, the court re-imposed defendant’s original 35-year sentence. On appeal, defendant argued that the district court misread the appellate court opinion, and that the decision gave the district court “the opening to correct an illegality” through a new sentencing. The Sixth Circuit found no error. U.S. v. Charles, __ F.3d __ (6th Cir. Aug. 23, 2018) No. 18-5318.
6th Circuit says remand required using guidelines in effect on date of prior sentencing. (192)(197)(520) In 2004, defendant was sentenced to 360 months under the Armed Career Criminal Act. In 2015, Johnson v. U.S., __ U.S. __, 135 S.Ct. 2551 (2015) held the “residual clause” of the ACCA was unconstitutionally vague. Based on Johnson, the district court vacated defendant’s ACCA sentence, and instead sentenced him as a career offender under the “residual clause” of §4B1.2, because the “vagueness doctrine” does not apply to advisory guidelines. See Beckles v. U.S., 137 S.Ct. 886 (2017). Thereafter, in 2016, the Sentencing Commission deleted the career offender guideline’s “residual clause.” When defendant’s cases was later remanded for a procedural error, the district court refused to apply the amended guideline, but relied on the pre-amendment guideline’s “residual clause” to sentence him again as a career offender. Defendant appealed, arguing that the court should have used the current §4B1.2. The Sixth Circuit disagreed. Courts should ordinarily use the version of the guidelines in effect on the date of sentencing. However, when a case is remanded because the sentence was imposed “in violation of law,” the district court must use the version of the guidelines in effect on the date of the prior sentence. 18 U.S.C. § 3742(f)(1), (g)(1). Here, the remand was because the district court failed to explain the basis for its sentence, i.e., it was imposed “in violation of law.” U.S. v. Jackson, __ F.3d __ (11th Cir. Aug. 24, 2018) No. 15-14354.
5th Circuit allows successive motion to reduce sentence and remands for reconsideration. (197) Defendant was convicted of crack conspiracy charges. When Amendment 782 reduced the guidelines for crack cocaine, she filed two sentence-reduction motions under 18 U.S.C. § 3582(c)(2). The district court denied both motions, but on appeal, the Fifth Circuit held (1) the district court had subject-jurisdiction to consider the successive § 3582(c)(2) motion; (2) the appellate court had jurisdiction to review the denial of the successive motion; (3) the motion was not barred by the doctrine of res judicata or law of the case; and finally, (4) the district court erred in ruling that defendant was sentenced under the career-offender provisions. Because her sentence was based on the drug-quantity guidelines, the panel remanded for reconsideration of defendant’s motion. U.S. v. Calton, __ F.3d __ (5th Cir. Aug. 20, 2018) No. 15-10874.
6th Circuit does not require new sentencing hearing upon limited remand. (197) Defendant pled guilty to drug charges, and was sentenced to 170 months. The district court found him responsible for 28,000 kilograms of marijuana equivalent, but the calculation was unclear. On appeal, the sentence was vacated and remanded to permit the district court to explain the quantity of drugs attributable to defendant. On remand, the district court, without further hearing, imposed the same sentence and explained its reasoning in a written amended judgment. Defendant again appealed, arguing that the court erred by not affording him a new sentencing hearing, and violated 18 U.S.C. § 3553(c) by failing to explain the sentence “in open court.” The Sixth Circuit found no error. The prior limited remand did not require a new sentencing hearing, and because there was none, the procedural guarantee of 18 U.S.C. § 3553(c) was not violated. U.S. v. Woodside, __ F.3d __ (6th Cir. July 18, 2018) No. 17-5125.
2nd Circuit reverses child porn resentencing for failure to depart down. (197)(310)(742) Defendant pled guilty to sexual exploitation of children and receipt of child pornography, and was sentenced to 30 years. On his first appeal, the Second Circuit, in an unpublished decision, concluded that the 30-year sentence was substantively unreasonable. The court found that defendant’s extraordinary history of childhood abuse and expert testimony that it contributed to the offense justified a “significant” departure from the guidelines. At resentencing, the district court reduced defendant’s sentence from 30 to 25 years, citing defendant’s good conduct in prison. The Second Circuit held that the district court failed to comply with its mandate. The precise magnitude of the downward departures were left to be determined by the district court. But the mandate required some downward departure on the basis of defendant’s history, and some downward departure based on a reassessment of the danger posed by defendant. The district court ordered no departure on either of these grounds. The reduction from 30 years to 25 years for a reason not available at the time of the original sentencing did not satisfy the mandate. U.S. v. Sawyer, __ F.3d __ (2d Cir. June 19, 2018) No. 17-1490.
9th Circuit upholds refusal to sentence below guidelines range based on amendment. (197) At defendant’s original sentencing, her guideline range was 210 to 262 months. Probation proposed a sentence of 172 months, and the government agreed, with the caveat that it was not moving for a reduction under guideline §5K1.1 based on defendant’s cooperation. Amendment 782 then became effective, lowering the sentencing range for defendant’s drug-trafficking offense. The district court reduced defendant’s sentence to the bottom of the guidelines range, but it declined to impose a lower sentence because the government had not made a §5K1.1 motion at defendant’s original sentencing. The Ninth Circuit affirmed, finding that the government’s assent to a lower sentence did not constitute a §5K1.1 motion. U.S. v. Finazzo, __ F.3d __ (9th Cir. Nov. 10, 2016) No. 15-10272.
7th Circuit requires complete resentencing where court did not justify supervised release conditions. (197)(580) While defendant’s appeal was pending, the Seventh Circuit decided U.S. v. Thompson, 777 F.3d 368 (7th Cir. 2015). The parties requested a remand for resentencing under Thompson because the district court had not justified the conditions of supervised release. The Seventh Circuit granted the motion, and at the second sentencing hearing, the district court imposed the same conditions of supervised release. On appeal, the Seventh Circuit clarified that a remand “in light of Thompson” required full resentencing, unless the mandate specified otherwise. A Thompson remand gives a district court the power to hear new evidence and arguments that were not made on appeal. The defendant must also be given an opportunity for allocution. However, the court is not required to rehear the evidence presented at the original sentencing hearing. The panel reversed because it appeared that the district court believed that the remand was limited to the conditions of supervised release. U.S. v. Mobley, __ F.3d __ (7th Cir. Aug. 15, 2016) No. 15-2255.
7th Circuit upholds higher sentence on remand based on revocation sentence. (197)(800) Two years after being placed on supervised release, defendant was convicted of drug trafficking, and sentenced to 276 months. Another judge then revoked his supervised release, and imposed a concurrent sentence of 51 months. He appealed his drug sentence, and the appeals court reversed several conditions of supervised release. At the second sentencing, the court found the same guideline range of 262-327 months, but this time imposed a sentence of 327 months, explaining that at the first sentencing it had wanted to impose a 327-month sentence, but defendant had persuaded it to impose a 276-month sentence because defendant expected to receive a 51-month consecutive sentence in his revocation case. However, defendant received a 51-month concurrent sentence in his revocation case. The Seventh Circuit upheld the increased sentence, observing that on remand after reversal, a resentencing court may consider, under §3553(a), post-sentencing information in increasing or decreasing the defendant’s sentence. U.S. v. Dorsey, __ F.3d __ (7th Cir. July 21, 2016) No. 15-3341.
9th Circuit remands for resentencing on existing record. (197) The district court erred in determining the length of defendant’s prior sentences. When this error became apparent on appeal, the Ninth Circuit remanded for resentencing. The panel held that resentencing should be held on the existing record, and not on an open record, because at the initial sentencing, the government failed to prove the length of defendant’s prior sentences during a full inquiry into the factual question. U.S. v. Pridgette, __ F.3d __ (9th Cir. Aug. 8, 2016) No. 14-30223.
3rd Circuit says presumption of vindictiveness did not apply where revised sentence was lower. (197)(520) Defendant was originally sentenced as a career offender to 37 months, which fell at the bottom of his 37-46 month guideline range. While his appeal was pending, the Supreme Court held in Johnson v. U.S., 135 S. Ct. 2551 (2015), that the residual clause in the Armed Career Criminal Act was void for vagueness. At resentencing, the district court determined that defendant’s revised guidelines range was 30-37 months, and sentenced him to 36 months. Defendant appealed, arguing that his revised sentence was presumptively vindictive under North Carolina v. Pearce, 395 U.S. 711 (1969), because it fell at the upper end of the non-career offender guideline range, while his original sentence was at the lower end of the career offender range. The Third Circuit disagreed. Because defendant’s revised sentence was lower than that originally imposed, Pearce’s presumption of judicial vindictiveness did not apply. There was no evidence of actual vindictiveness. U.S. v. Peterson, __ F.3d __ (7th Cir. May 25, 2016) No. 14-3716.
7th Circuit says remand to reconsider supervised release required full resentencing. (197) Defendant was originally sentenced to 40 years in prison and a life term of supervised release. After he appealed his supervised release, defendant and the government filed a joint motion seeking an order “summarily revers[ing] the judgment of the district court and to remand the case for resentencing, consistent with” U.S. v. Thompson, 777 F.3d 368 (7th Cir. 2015). The panel granted the joint motion, and remanded for resentencing in light of Thompson. At resentencing, the district court refused to revisit defendant’s term of imprisonment, finding that the remand was limited to the term and conditions of supervised release. The Seventh Circuit reversed, holding that the court should have conducted a full resentencing. In Thompson, the court found error in the procedures used in four cases to impose conditions of supervised release, and vacated the entire sentences because reconsideration of the supervised release conditions might have induced the judges to alter the prison sentence as well. Similarly, in this case, the court should have considered defendant’s term of imprisonment along with his supervised release conditions. U.S. v. Orlando, __ F.3d __ (7th Cir. May 25, 2016) No. 15-2092.
6th Circuit upholds vulnerable victim increase not added at original sentencing. (197)(410) Sixteen defendants, members of an Amish community, were convicted of crimes stemming from a spate of hair-cutting and beard-shearing attacks against other Amish individuals. They were convicted of multiple crimes, including hate crimes. However, the hate crime convictions were reversed on appeal. At resentencing, the district court applied a §3A1.1 vulnerable victim enhancement because some of the assault victims were elderly and in poor health. The Sixth Circuit upheld the enhancement, even though the court did not apply such an enhancement at the original sentencing. The district court heard significant testimony about the advanced age and serious illness of several victims. In view of the close personal and familial connections between the assailants and the victims, the district court did not clearly err in finding that the defendants knew or should have known as much. The fact that defendants did not receive this enhancement at their first sentencing did not establish a vindictive sentence. U.S. v. Mullet, __ F.3d __ (6th Cir. May 4, 2016) No. 15-3212.
8th Circuit upholds at resentencing same sentence imposed at original hearing. (197) Defendant pled guilty to possessing an unregistered sawed-off shotgun, and received statutory maximum sentence of 120 months. The Eighth Circuit remanded for resentencing, directing the court not to consider certain objected-to facts. On remand, the district court imposed the same sentence. Defendant argued for the first time on appeal that the new sentence was substantively unreasonable, noting that the appellate court had identified several mitigating factors that indicated defendant should have received a shorter sentence but for the sentencing error. The Eighth Circuit upheld the sentence as reasonable. The fact that the panel “might reasonably have concluded that a different sentence was appropriate [was] insufficient to justify reversal of the district court.” In re-imposing the 120-month sentence, the district court commented that the guidelines did not adequately take into account the seriousness of the offense: defendant had discharged a firearm into a fleeing vehicle, narrowly missing the driver. Judge Bright dissented. U.S. v. Webster, __ F.3d __ (8th Cir. Apr. 25, 2016) No. 15-3020.
9th Circuit declines to transfer case to a new judge for resentencing. (197)(320) At defendant’s sentencing for perjury in testimony before the grand jury, the district judge stated that he believed that defendant should receive an obstruction of justice enhancement and that defendant should not be given credit for acceptance of responsibility because he lied at trial. The court also denied defendant’s application for bail pending appeal before receiving a response from the government. The Ninth Circuit found that the case should be remanded, but declined to remand to a different district judge. The court held that the judge had not demonstrated personal bias or shown that he would have substantial difficulty in putting aside previously expressed views. U.S. v. Johnson, __ F.3d __ (9th Cir. Feb. 5, 2016) No. 14-10113.
D.C. Circuit upholds same sentence on remand despite vacating managerial increase. (197) Defendants were convicted of mail fraud charges that resulted in a 43-point offense level, and a guideline range of life imprisonment. However, they all received below-guidelines sentences of 120 months. On their first appeal, the D.C. Circuit held that the court improperly applied a three-level managerial role enhancement. With the managerial enhancement removed, defendants’ new guideline range was 292-365 months. On remand, the district court imposed the exact same 120-month sentences. The D.C. Circuit found no error. Although the judge did not expressly state that the vacated enhancement carried “no independent weight,” it was clear, given the circumstances, that it did not. The guidelines did not drive defendants’ sentences. The judge adequately addressed defendants’ post-sentencing rehabilitation argument, explaining that he had already credited rehabilitation during the original sentencing. Also, the judge noted that he previously did not sufficiently value the serious nature of the offense. U.S. v. Hunter, __ F.3d __ (D.C. Cir. Jan. 12, 2016) No. 14-3046.
1st Circuit upholds resentencing to same sentence after vacating one conviction. (197) Defendant was originally convicted of being a felon in possession of a firearm and one count of possession of a firearm in a school zone. His guideline range was 21-27 months, but the district court varied upward to 60 months. On appeal, the First Circuit reversed the school zone conviction. On remand, the district court reimposed the same 60-month sentence, reasoning, as it had before, that defendant’s criminal history was “substantially underrepresented,” and that at the time of the instant offense, he had the “obvious intention of committing an armed robbery.” The First Circuit rejected defendant’s claim that resentencing him to the same sentence after one conviction was vacated resulted in an unreasonable sentence. The reversal of the school zone charge did not change the applicable base offense level, the criminal history category, or the resulting guideline sentencing range. Nor did the school zone charge have any mandatory minimum sentence that was lifted. The district court took all the steps necessary to properly explain the sentence it imposed. U.S. v. Guzman-Montanez, __ F.3d __ (1st Cir. Dec. 22, 2015) No. 14-1944.
9th Circuit says error not harmless despite court’s statement that it would impose the same sentence. (197)(850) At defendant’s sentencing for illegal reentry after deportation, in violation of 8 U.S.C. § 1326, the court imposed a 46-month sentence based in part on its finding that defendant’s prior conviction was a “crime of violence. “ The court stated that even if the court of appeals disagreed with its finding, 46 months was a reasonable sentence, and it would impose that sentence on remand. On appeal, the Ninth Circuit found that defendant’s prior offense was not a “crime of violence” and the offense level was 10-16 months, not 46-57 months, as the district court found. The panel held that the error was not harmless because of the large deviation from the correct guidelines range. U.S. v. Garcia-Jimenez, __ U.S. __ (9th Cir. Nov. 19, 2015) No. 14-10484.
5th Circuit says new increase at resentencing did not violate double jeopardy. (125)(197)(218) Defendant participated in a conspiracy that defrauded various telecommunications companies and other service providers. He was sentenced to 480 months, but on appeal, the court reversed one of his convictions. At resentencing, the court added a two-level increase under § 2B1.1(b)(6), which applies when “(A) the defendant was convicted of an offense under 18 U.S.C. § 1037; and (B) the offense involved obtaining electronic mail addresses through improper means.” Defendant challenged the enhancement because at the time of resentencing, he had already served the 36-month sentence for his § 1037 conviction. The Fifth Circuit rejected defendant’s argument that the enhancement constituted double jeopardy. Defendant was entitled to credit for the time he served until resentencing against his sentence for the § 1037 conviction. But the district court was entitled to consider the § 1037 conviction in applying the enhancement under § 2B1.1(b)(6). Use of the § 1037 conviction did not violate the double jeopardy clause. U.S. v. Simpson, __ F.3d __ (5th Cir. Aug. 12, 2015) No. 14-10932.
7th Circuit allows recalculation of crack offense level on remand. (197) Defendant pled guilty to conspiring to distribute 280 grams or more of crack cocaine, and was sentenced to 360 months. On defendant’s first appeal, the appellate court ruled that the district court clearly erred in counting defendant’s 2008 drug transactions as relevant conduct. At resentencing, the court recalculated defendant’s offense level as 42, resulting in a new guideline range of 360 months to life. The court resentenced defendant to 324 months. Defendant argued that the district court ignored the “limited nature” of the remand order when it recalculated his offense level at sentencing, but the Seventh Circuit found no error. After ruling that it would not consider as relevant conduct the 1.8 kilograms of crack cocaine that it erroneously considered at the original sentencing, the district court needed to recalculate the drug-quantity amount to determine defendant’s base offense level under § 2D1.1(c). It chose the obvious number, 280 grams, which was the amount defendant pled guilty to conspiring to distribute. U.S. v. Purham, __ F.3d __ (7th Cir. Aug. 5, 2015) No. 14-3424.
9th Circuit assigns case to new judge after finding structural error. (197) The district court heard allocution from a victim of defendant’s fraud scheme outside the presence of counsel. The Ninth Circuit held that this was structural error, and remanded the case. Because the district court committed structural error and because the district court relied on the victim’s statements in sentencing defendant, the Ninth Circuit ordered the case to be reassigned to a different judge on remand. U.S. v. Yamashiro, __ F.3d __ (9th Cir. June 12, 2015) No. 12-50608.
Supreme Court rules that law-of-the-case does not restrict sentencing on remand. (197) On defendant’s appeal of his sentence, the court of appeals vacated the sentence and ordered that the case be reassigned to a different district judge on remand. On remand, the new judge held that she was not bound by the prior judge’s decision to reduce defendant’s sentence by 40 percent below the Guidelines range based on the defendant’s substantial assistance to the authorities. Instead, the judge found that defendant was entitled to only a 20-percent reduction. Defendant argued that the law-of-the-case doctrine barred the district court from reducing defendant’s sentence by less than 40 percent from the Guidelines range. The Supreme Court, in a decision by Justice Sotomayor, held that the law-of-the-case doctrine did not require the district court to apply the same percentage departure from the Guidelines range for substantial assistance that had been applied at defendant’s prior sentencing. Pepper v. U.S., 562 U.S. __, 131 S.Ct. 1229 (2011).
Supreme Court allows post-sentencing rehabilitation to be considered at resentencing. (197) Defendant appealed his sentence, and the Eighth Circuit vacated the sentence and remanded for resentencing. At the resentencing hearing, defendant argued that the district court should reduce his sentence because of his extensive efforts at post-sentencing rehabilitation. The court of appeals held that at resentencing, a court may not consider post-sentencing rehabilitation, but the Supreme Court, in a decision written by Justice Sotomayor, held that when a defendant’s sentence has been set aside on appeal, a district court at resentencing may consider evidence of the defendant’s post-sentencing rehabilitation, and that such evidence may support a downward variance from the Guidelines range. The Court invalidated 18 U.S.C. § 3742, which prohibits a court at resentencing from imposing a sentence outside the Guidelines range except on a ground on which it had relied at the prior sentencing. Pepper v. U.S., 562 U.S. __, 131 S.Ct. 1229 (2011).
Supreme Court to decide if substantial assistance departure is law of the case on remand. (197) At defendant’s sentencing for drug-trafficking crimes, the government sought a sentence 15 percent below defendant’s Guidelines range of 97 to 121 months based on defendant’s substantial assistance to the government. The district court granted 40 percent departure based on substantial assistance, and a further downward variance based on his post-offense rehabilitation. After a government appeal, the case was remanded for resentencing before a different judge. Defendant claimed that the law-of-the-case doctrine required the new judge to grant a 40 percent reduction. The judge rejected that contention and departed down only 20 percent for substantial assistance. The court also declined to reduce defendant’s sentence for post-offense rehabilitation. The Supreme Court granted certiorari to decide (1) whether at defendant’s resentencing, the district court was required to apply the same percentage departure for substantial assistance as at the initial sentencing; and (2) whether post-sentencing rehabilitation is a proper basis for a downward variance. In its response to the certiorari petition, the government agreed that post-sentence rehabilitation was a permissible basis for a variance. Pepper v. U.S., 561 U.S. __, 130 S.Ct. 3499 (2010) (granting certiorari).
Supreme Court to decide if court of appeals may order sentence increased on remand absent government appeal. (197) Defendant was convicted on two counts of using or carrying a firearm during and in relation to a drug-trafficking crime, in violation of 18 U.S.C. § 924(c). A second or successive conviction for violating § 924(c) requires imposition of a mandatory 25-year sentence. At defendant’s sentencing, the district court failed to impose the required 25-year sentence. Defendant appealed the sentence, but the government did not cross-appeal. After rejecting defendant’s challenges to his sentence, the Court of Appeals vacated and remanded with instructions for the district court to impose the required 25-year sentence for defendant’s second § 924(c) conviction. The Supreme Court granted certiorari to decide whether the Court of Appeals erred in vacating defendant’s sentence and remanding for imposition of the 25-year sentence when the government did not cross-appeal defendant’s sentence. Greenlaw v. U.S., __ U.S. __, 128 S.Ct. 829 (2008) (granting certiorari).
Supreme Court vacates 9th Circuit’s ruling that double jeopardy barred resentencing despite mistake. (197) Defendant entered two guilty pleas in Arizona to factually unrelated crimes. In the first case, the state agreed to a sentence of lifetime probation with no prison term. The second case contained no stipulation regarding punishment. The sentencing court confused the two cases and imposed ten years on the first case and probation on the second. Defendant appealed the first case and the sentence was reversed as contrary to Arizona law. On remand, the court consolidated both cases (even though the sentence in the second case had long since become final) and imposed probation in the first case and ten years in the second case. Defendant’s 28 U.S.C. § 2254 petition was denied by the district court, but on appeal, the Ninth Circuit reversed, holding that resentencing in the second case violated double jeopardy because, under Arizona law defendant had a legitimate expectation of finality in it. On June 26, 1998, the Supreme Court summarily vacated this ruling. Stewart v. Falcone, 524 U.S. 947, 118 S.Ct. 2364 (1998).
Supreme Court holds double jeopardy does not prevent retrial on enhancement in noncapital sentencing. (197) Defendant was sentenced under California’s “three strikes” law based on two prior felony convictions. The state Court of Appeals found the evidence insufficient to trigger the sentence enhancement, and held that a remand for retrial on the “three strikes” allegation would violate double jeopardy principles. The California Supreme Court reversed the Court of Appeals in People v. Monge, 16 Cal.4th 826, 941 P.2d 1121 (1997), and held that the double jeopardy clause did not bar retrial of the prior conviction allegations. The U.S. Supreme Court granted certiorari and in a 5-4 opinion written by Justice O’Connor, agreed with the California Supreme Court that the double jeopardy clause does not preclude retrial on a prior conviction allegation in the noncapital sentencing context. In Bullington v. Missouri, 451 U.S. 430 (1981), the Supreme Court held that a capital defendant who had received a life sentence during a penalty phase that bore “the hallmarks of [a] trial on guilt or innocence” could not be resentenced to death upon retrial following appeal. The majority in this case refused to apply Bullington outside the capital sentencing context. Justices Scalia, Souter and Ginsburg dissented, arguing that despite Almendarez-Torres v. U.S., 523 U.S. 224, 118 S.Ct. 1219 (1998)“recidivism” findings should be treated as elements of the offense. Justice Stevens dissented separately arguing that double jeopardy barred retrial on the enhancement. Monge v. California, 524 U.S. 721, 118 S.Ct. 2246 (1998).
Supreme Court vacates Sixth Circuit’s ruling on departure for community service. (197) In U.S. v. Crouse, 78 F.3d 1097 (6th Cir. 1996), the Sixth Circuit held that the district court’s failure to reconsider a community service departure was not reversible. At the original sentencing, the court departed downward based on defendant’s community service, the court’s desire to achieve proportionality in sentencing, and defendant’s extensive business losses as a result of his conviction. The Sixth Circuit reversed the downward departure but affirmed the district court’s loss calculation. At resentencing, the court refused to allow additional argument concerning the reduction for community service, the loss calculation, or the effect of Amendment 508 on § 5H1.11. The Sixth Circuit held that although the district court could have revisited the issue of departure for community service, its failure to do so was not reversible because of the previous holding. On October 7, 1996, the Supreme Court vacated this decision in a per curiam order. Crouse v. U.S., 419 U.S. 801, 117 S. Ct. 39 (1996).
1st Circuit bars empaneling sentencing jury on remand to remedy Alleyne error. (197) Under Alleyne v. U.S., 133 S.Ct. 2151 (2013), if the distribution of drugs is proven beyond a reasonable doubt to a jury to have resulted in a death, a defendant will face a 20-year mandatory minimum sentence. See 21 U.S.C. § 841(b). However, if the government does not meet that burden before conviction, a defendant will face a different mandatory minimum – either 10 years, 5 years, or no minimum, depending on drug type and quantity. When, as here, there is Alleyne error resulting in a mandatory minimum sentence based on judicial findings on a lesser standard of proof, the circuit courts usually have remanded for resentencing. Here, the prosecutor asked the court to permit the prosecution on remand to empanel a sentencing jury to allow the government to prove beyond a reasonable doubt that a death resulted from the defendant’s drug dealing. The First Circuit held that the government’s proposed course of action was foreclosed on the facts of the case, was unfair, and would raise troubling double jeopardy questions that could be avoided by denying the request. U.S. v. Pena, 742 F.3d 508 (1st Cir. 2014).
1st Circuit outlines additional matters court may consider on remand. (197) Defendant was convicted of distributing crack. After determining that the evidence did not support the district court’s drug quantity calculation, the First Circuit remanded. The panel ruled that on remand, the district court could consider defendant’s admission to a murder for which he was previously acquitted. But even without considering the decade-old murder, the panel indicated that defendant’s long career of crime and his putative gang affiliations, together with his present drug dealing, could justify more than the 84-105 month range calculated without the rejected drug calculation. The district judge did not directly discuss these issues at the original sentencing, but might find it necessary to do so now. The panel rejected defendant’s argument that his gang membership and other indicia of future danger were irrelevant because they were not directly linked to the five charged drug transactions. U.S. v. Marquez, 699 F.3d 556 (1st Cir. 2012).
1st Circuit requires defendant to be present at resentencing hearing. (197) Defendant was initially sentenced as a career offender to 90 months. The First Circuit remanded, holding that the government had not properly proven the fact of a prior conviction. Due to problem with transportation from prison, defendant did not appear at his resentencing hearing. The district court ruled that defendant was not required to be present since it was not considering a higher sentence. At the resentencing hearing, defense counsel argued that the government still had not proven the prior conviction. In addition, counsel argued for a lower sentence based on defendant’s post-sentencing rehabilitation. The district court reimposed the original 90-month sentence. The First Circuit vacated the sentence again, holding that defendant’s presence, and an opportunity to allocute, was required at the resentencing hearing. the appellate opinion directed the district court to reexamine the reliability of the evidence offered to establish the prior conviction, it did not limit resentencing to this issue. Moreover, if a plausible argument for post-sentencing rehabilitation can be made, this would also require defendant’s presence at the resentencing hearing. U.S. v. Bryant, 643 F.3d 28 (1st Cir. 2011).
1st Circuit rules defendant need not renew rejected claim to preserve it for appeal. (197) Because of a problem with transportation from defendant’s prison, defendant did not appear at his resentencing hearing. At the hearing, defendant’s counsel stated that he was not in a position to waive any rights defendant might have involving his presence at the hearing. The district court reimposed the same sentence it originally imposed and defendant appealed, arguing that the court erred by holding the resentencing hearing in his absence. The government contended that defendant had forfeited the objection even though defendant’s counsel made clear at the hearing that he was not waiving defendant’s rights. The government’s theory was that after the hearing, when the district court reserved decision, defendant should in the interval have made a motion for a new hearing. The First Circuit disagreed, ruling that defendant did not forfeit his objection to the court’s resentencing him in his absence. When a party has asserted a position and the district judge has unambiguously rejected it, the party is not required to renew the request to preserve the claim for appeal. U.S. v. Bryant, 643 F.3d 28 (1st Cir. 2011).
1st Circuit relies on law of the case to bar claims that were not raised in first appeal. (197) Defendant was convicted of various crimes related to a 2000-armed robbery of a firearms store. He was initially sentenced to 300 months, but the First Circuit remanded for resentencing, finding that the court had relied on improper grounds in departing upward. At resentencing, the court imposed a 294-month sentence, departing again based on four different grounds. Defendant appealed. The First Circuit ruled that several of defendant’s challenges to the new sentence were barred by the law of the case doctrine. Two of the grounds for departure that he challenged – use of dangerous weapon and disruption of a government function – were upheld in defendant’s first appeal, and the panel refused to “reconsider” those claims. Two other enhancements – for obstruction of justice and use of stolen weapons – were not challenged in the first appeal and were reimposed on remand. Defendant’s failure to challenge these enhancements the first time around made them the law of the case. The panel added that no serious injustice would result from relying on the law of the case. U.S. v. Wallace, 573 F.3d 82 (1st Cir. 2009).
1st Circuit upholds resentencing judge’s reliance on PSR and appellate court opinion to make drug quantity findings. (197) Defendant was originally sentenced to 48 months’ imprisonment. The sentence was based on a series of sentencing errors, and on remand, the case was reassigned to another judge who resentenced defendant to 235 months’ imprisonment. Defendant argued that the resentencing judge was required to go back and reread the transcripts of relevant testimony as well as the PSR in order to make key Guidelines findings, such as drug quantity. The resentencing court did not do that, and defendant argued that it could not rely on the PSR and the appellate court opinion alone. The First Circuit found no hard and fast doctrines about what documents a judge who was not the trial judge must consult, other than the normal documents required by the Federal rules of Criminal Procedure. Here, the information in the PSR and the appellate court opinion provided a sufficient basis for the court’s finding that defendant was responsible for at least 260 kilograms of cocaine. The PSR contained wiretap transcripts of two conversations that showed that defendant played a significant role in a 260-kilogram transaction. U.S. v. Olivero, 552 F.3d 34 (1st Cir. 2009).
1st Circuit reverses court’s refusal to resentence after two of three counts were vacated. (197) Defendant was originally convicted of a drug conspiracy count, a firearms count, and an aiding and abetting count. On appeal, the First Circuit vacated the latter two counts due to errors in the admission of evidence, and affirmed the drug conspiracy conviction. Following remand, the government declined to retry either count. Rather than holding a new sentencing hearing on the one remaining conviction, the district court entered an amended judgment reimposing the life sentence it had previously imposed on this count The First Circuit reversed, holding that the district court erred in refusing to hold a new sentencing hearing. The appellate court mandate called for resentencing. The district court was instructed to “vacate [defendant’s] convictions on counts two and three.” It was told that it would reacquire the case “for a new trial on those charges if the government wishes to so proceed, and for resentencing.” This language clearly conveys two distinct commands. First, it instructs the district court to wipe out the judgments on counts two and three and to retry those counts if the government elects to press forward. Second, it independently instructed the district court to “resentenc[e]” defendant. Since the only conviction left standing in the wake of the earlier opinion was the conviction on count one, the directive to resentence necessarily referred to that count. Although the district court could still sentence defendant to life imprisonment at resentencing if it finds that a murder had been committed during and in furtherance of the drug conspiracy, the district court had never made such a finding, and defendant was entitled to contest that point at a resentencing hearing. U.S. v. Genoa-Sanchez, 525 F.3d 67 (1st Cir. 2008).
1st Circuit approves sentence of imprisonment after government’s successful appeal of probation. (197) The government appealed several of the court’s sentencing decisions that resulted in defendant receiving a sentence of three years’ probation. At the time of appeal, defendant had served 15 months of probation, including a six-month portion in home detention. The First Circuit held that imposing a term of imprisonment after the government’s appeal from a sentence of probation did not exceed the court’s sentencing authority. The sentencing statutes explicitly provide for the appeal and modification of probation sentences that fall outside the guideline range. See 18 U.S.C. § 3563. The similarities between probation and imprisonment were sufficient to allow crediting of probation against imprisonment. The proper means for crediting probation against imprisonment is a downward departure by the court upon remand. However, “fully crediting” probation does not require a day-to-day offset against time to be served in prison, since time served in both home detention and on probation is less restrictive than imprisonment. U.S. v. Martin, 363 F.3d 25 (1st Cir. 2004).
1st Circuit holds that government did not breach plea agreement by pointing out court’s authority to depart. (197) Defendant’s plea agreement provided that neither defendant nor the government would seek a departure from the guidelines. Defendant appealed his sentence, arguing that the court erred in its career offender determination. In response, the government filed a motion for remand, conceding that the district court had erred in its career offender determination. Its brief stated, in part, that “On resentencing, moreover, the district court should be free to consider the applicability of U.S.S.G. § 4A1.3, which provides for upward departures when a sentencing court determines that the defendant’s CHC under-represents the seriousness of the defendant’s criminal history.” This statement appeared in boldface and was italicized. The First Circuit held that the government did not violate the terms of the plea agreement. Neither at sentencing or at the resentencing after remand did the government ever recommend or argue for an upward departure. The government was properly concerned about the phrasing of defendant’s remand request, and its goal was to seek “an accurate remand order.” Although the phrasing of the alert was clumsy, it did not constitute a breach of the plea agreement. U.S. v. Frazier, 340 F.3d 5 (1st Cir. 2003).
1st Circuit refuses to consider “law of the case” claim not raised by government at resentencing. (197) Defendant was originally convicted of three charges related to a kidnapping. On appeal, the First Circuit vacated one firearms count and remanded for resentencing. On remand, the district court reimposed the same sentence on the two remaining kidnapping charges. Defendant appealed his sentence, arguing that he improperly received a § 2A4.1(b) (4)(b) enhancement. The government argued that defendant’s appeal was barred by the law of the case doctrine. However, the government did not present this argument to the district court and therefore, the First Circuit refused to consider it here. If the government wishes to assert at resentencing before the district court after remand that certain issues resolved earlier should not be revisited, it must say so then. U.S. v. Lorenzo-Hernandez, 279 F.3d 19 (1st Cir. 2002).
1st Circuit says court had authority at resentencing to impose fine not previously imposed. (197) Defendant was originally was sentenced to 33 months in prison. Neither restitution nor a fine was imposed. On his first appeal, one count of conviction was reversed. At resentencing, defendant was sentenced to 18 months in prison, 24 months’ supervised release, and a fine of $10,000. Defendant appealed on a number of sentencing grounds, including a claim that the fine was vindictive. The appellate court agreed on some of the sentencing issues. The court did not address the fine, noting that defendant would have to be resentenced, and urged the district court to consider defendant’s arguments about the fine at that time. At resentencing, the district court sentenced defendant to five years of probation and a fine of $10,000. Defendant did not object to any part of the sentence. On his third appeal, the First Circuit held that the $10,000 fine was not plain error. A presumption exists that a fine will be imposed as part of a sentence, and the defendant bears the burden of showing that an exception should be made in his case. The court here considered defendant’s financial condition, and in fact waived interest on the fine because of his financial condition. The first judge’s failure to impose a fine as part of defendant’s sentence was not tantamount to a finding of indigence. At the second sentencing, the judge stated that the record did not show that defendant was incapable of paying a fine. The second judge did not err in imposing a fine, despite the first judge’s initial decision not to do so. U.S. v. Rowe, 268 F.3d 34 (1st Cir. 2001).
1st Circuit says court may depart at resentencing, but deportability and expense are not sufficient grounds. (197) Defendant filed this § 2255 motion alleging ineffectiveness of counsel in allowing his appeal to lapse. The district court granted the petition and ordered resentencing to permit defendant to take a direct appeal. However, the court did not mechanically impose the same sentence. Instead, the court departed downward to save the taxpayers money because defendant was to be deported anyway upon release. The government argued that the district court had no right after granting the § 2255 motion to do anything more than reimpose the original sentence. The First Circuit held that the court was free to consider a downward departure for any legitimate reason at the resentencing hearing. Although the reimposing the original sentence would have remedied the constitutional defect, the court was not forbidden from sentencing defendant afresh and imposing a different sentence. However, while the court was free to consider a downward departure for any legitimate reason, it erred in granting a departure on the grounds given. The court said that it was “a waste of taxpayer money” to impose a lengthy prison term on “someone who’s going to be deported.” A deportable alien who commits a crime is still within the “heartland” of the guidelines absent something more. If deportability, expense, or some combination of the two justified a departure, it would have to be based on case-specific findings that made the case unusual. The common facts of a long sentence and likely deportation are not by themselves unusual. U.S. v. Maldonado, 242 F.3d 1 (1st Cir. 2001).
1st Circuit says defendant not entitled to allocution at resentencing where court reimposed same sentence. (197) Defendant contended that the district court violated Rule 32 at his resentencing by not providing him an opportunity for allocution before reimposing his sentence. The First Circuit found no error, since Rule 32 does not require that opportunity where the court merely reimposes a sentence identical to one imposed before, as long as the rationale for the sentence is the same. Here, the district court’s rationale was identical to that of the original sentence: that defendant was ineligible for the safety valve provision due to a juvenile disposition that increased his criminal history points above one. Defendant also asserted that the court erred in failing to verify that defendant and his counsel read and discussed the PSR and in failing to determine whether they had any objections to it. However, nothing in the record indicated that a new PSR was issued prior to resentencing. Hence, the court was under no obligation to revisit the issue. U.S. v. DiPina, 230 F.3d 477 (1st Cir. 2000).
1st Circuit says total sentencing package must be considered in determining vindictiveness. (197) Defendant shot his girlfriend in the back of the head, leaving her permanently disabled. He pled guilty to being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1), and using a firearm during a drug trafficking crime, 18 U.S.C. § 924(c). The court sentenced defendant to 360 months: 262 months for the § 922(g)(1) charge, a mandatory 60-month consecutive sentence under § 924(c), and a 38-month upward departure. The district court later vacated the § 924(c) conviction. At resentencing, the district court departed upward by 144 months from the 180 month sentence applicable to the remaining felon charge, and imposed a 324-month sentence. The First Circuit rejected defendant’s claim that a presumption of vindictiveness arose from the resentencing. See North Carolina v. Pearce, 395 U.S. 711 (1969). Defendant’s original sentence was a package. Thus, defendant would only have had an argument if his second sentence exceeded the total 360-month sentence he originally received. Moreover, at the second sentencing, there was new information about the extent of the victim’s conscious suffering that would satisfy the Pearce presumption. U.S. v. Sanders, 197 F.3d 568 (1st Cir. 1999).
1st Circuit says on remand court not obligated to consider issue unrelated to issues on appeal. (197) Defendant and a co-conspirator smuggled drugs into the U.S. from Jamaica. On their first appeal, they challenged the district court’s characterization of the drugs as hashish oil. Defendant did not challenge a § 3B1.1(c) increase for his role in the offense. The appellate court ruled the definition of hashish oil was ambiguous and remanded. At resentencing, the district court refused to reopen the earlier managerial role finding, noting that there had been no appeal from that decision at the first sentencing, and that, under the law of the case doctrine, the district court was not required to reopen the issue. The First Circuit agreed that findings and conclusions that are not appealed and are not related to the issues on appeal are treated as settled, unless they fall within an exception to the law of the case doctrine. One exception is where a blatant error would cause “serious injustice.” This case did not fall within this exception because the record provided more than adequate factual support for the court’s conclusion. U.S. v. Ticchiarelli, 171 F.3d 24 (1st Cir. 1999).
1st Circuit says no waiver where defendant did not have reason to raise issue at original sentencing. (197) The district court originally attributed marijuana and hashish oil to defendant. On his first appeal, the First Circuit held that the guidelines’ definition of hashish oil was ambiguous and that the district court should have considered the substance to be marijuana. At resentencing, defendant questioned for the first time the calculated weight of the drugs. The district court held that defendant had waived this argument by failing to raise it at his initial sentencing. Defendant claimed that he lacked the incentive to question the weight earlier — the district court’s calculation would have had to have been in error by over 9,698 kilograms to have reduced his offense level. The First Circuit, agreeing with the D.C. Circuit’s opinion in U.S. v. Whren, 111 F.3d 956 (D.C. Cir. 1997), held that upon a resentencing after remand, unless the court of appeals has expressly directed otherwise, the district court may only consider such new arguments as are made relevant by the court of appeals’ decision. A defendant has not waived an issue if he did not have a reason to raise it at his original sentencing. The record here provided ample explanation for defendant’s silence — by the time defendant was sentenced, the district court had already issued a final ruling that the contraband was hashish oil. U.S. v. Ticchiarelli, 171 F.3d 24 (1st Cir. 1999).
1st Circuit holds that intervening conviction was not prior conviction. (197) After defendant was sentenced in Maine district court for the current case, he was convicted in a Florida district court of drug charges. The Florida court sentenced defendant several weeks after the Maine sentence was vacated by the First Circuit. The Florida court considered the Maine conviction to be a “prior sentence” under § 4A1.2(a)(4). Defendant admitted that this was proper at the time. On resentencing in the Maine, the Maine district court considered the Florida sentence, imposed a few months earlier, as a prior sentence under § 4A1.2(a)(1), and added three criminal history points to defendant’s total. The First Circuit held that the intervening conviction was not a “prior sentence” under § 4A1.2(a)(1). The most sensible reading of the guidelines’ reference to “prior sentence” means a sentence which is prior to the original sentence which was vacated and remanded only for resentencing. Thus, the district court erred in considering the Florida sentence. This view is contrary to the Ninth Circuit’s decision in U.S. v. Klump, 57 F.3d 801 (9th Cir. 1995). However, Klump is based on the Ninth Circuit’s view that the scope of resentencing even on a limited remand is de novo. U.S. v. Ticchiarelli, 171 F.3d 24 (1st Cir. 1999).
1st Circuit has no jurisdiction to consider new departure at resentencing. (197) Defendant pled guilty to methamphetamine charges and was assigned a base offense level of 40. A year after defendant was sentenced, Congress enacted Amendment 505, which reduced the top offense level from 40 to 38. Because § 1B1.10(c) provides for retroactive application of Amendment 505, the district court granted defendant’s § 3582(c)(2) petition to modify his sentence. Defendant also sought for the first time a departure under § 5K2.0 based on a recent clarification of § 3B1.1 The First Circuit held that the district court did not have jurisdiction under § 3582(c)(2) to consider defendant’s new request for a § 5K2.0 departure. Section 1B1.10 requires the court to consider the term of imprisonment that it would have imposed had the amendment been in effect at the time the defendant was sentenced. The commentary further states that “the court shall substitute only the amendments listed in subsection (c) for the corresponding guideline provisions that were applied when the defendant was sentenced. All other guideline application decisions remain unaffected.” U.S. v. Jordan, 162 F.3d 1 (1st Cir. 1998).
1st Circuit permits resentencing on drug counts after vacating § 924(c) in § 2255 case. (197) Defendant successfully moved under § 2255 to vacate his § 924(c) firearm conviction based on Bailey v. U.S., 116 S.Ct. 501 (1995). However, the district court then imposed a § 2D1.1(b)(1) enhancement on the remaining drug counts. The First Circuit affirmed, holding that 28 U.S.C. § 2255 allows a court to correct the sentence where the guidelines contemplate an interdependent relationship between the sentence for the vacated conviction and the sentence for the remaining convictions. The court declined to determine whether this was true where the guidelines do not contemplate such an interdependent sentencing package. The court’s consideration of the conduct underlying the vacated conviction did not violate the Constitution. Given the language of § 2255 and the fact that defendant was still in custody, he could have no settled expectation of finality as to the drug sentence. U.S. v. Rodriguez, 112 F.3d 26 (1st Cir. 1997).
1st Circuit upholds same sentence at re-sentencing after successful appeal. (197) Defendant was caught illegally selling firearms. The district court originally imposed a 97‑month sentence, but the appellate court held that the court should have applied an earlier version of the guideline manual. The earlier guidelines were less severe, but at resentencing, the district court departed upward to impose the same 97-month sentence. On appeal, the First Circuit affirmed. Defendant cited no authority for the proposition that it is improper to impose a greater sentence after appeal, obtained here by an upward departure. The departure was properly based on the large number of guns and the endangerment of public safety. There was no “double dipping.” The guidelines did not account for putting at least 225 handguns with obliterated serial numbers on the street. U.S. v. Twitty, 104 F.3d 1 (1st Cir. 1997).
1st Circuit rejects presumption of vindictiveness on resentencing by new judge. (197) Defendant successfully appealed a 188‑month sentence on the grounds that the government had breached his plea agreement. A new judge resentenced defendant to 223 months. Defendant argued that he was being punished for exercising his right to appeal. The First Circuit affirmed, finding no evidence of vindictiveness. A presumption of vindictiveness does not arise when a defendant’s second sentence was imposed by a different judge. Absent such a presumption, a defendant must demonstrate actual vindictiveness. Defendant could not do so here. The fact that the district court was a small court with only four judges was insufficient to prove vindictiveness. The length of a sentence vacated on appeal does not serve as a cap on the term of imprisonment that can be imposed on resentencing. One of the risks of appealing a sentence is that a different judge may view the facts differently. U.S. v. Clark, 84 F.3d 506 (1st Cir. 1996).
1st Circuit finds no error in lack of allocution at resentencing under limited mandate. (197) At defendant’s initial sentencing, the district court granted defendant the right of allocution. The appellate court then remanded for resentencing in light of its recent decision in U.S. v. Rockman, 993 F.2d 811 (11th Cir. 1993) to determine if defendant’s state nolo contendere plea, where adjudication was withheld, was a diversionary disposition qualifying for one point under § 4A1.2(f). At resentencing, the district court refused to allow defense counsel to raise additional issues. Defendant contended he was denied his right of allocution at the resentencing. The First Circuit held that the lack of allocution at resentencing did not constitute reversible error where, as here, the defendant had the opportunity to rebut the presentence report and to allocute at the original sentencing hearing, and the remand was limited to a single issue. The appellate opinion foreclosed the court from addressing any other issues. U.S. v. Tamayo, 80 F.3d 1514 (11th Cir. 1996).
1st Circuit says court not required to hold evidentiary hearing before resentencing. (197) The district court sentenced defendant based on multiple extortions. The First Circuit remanded because it was unclear whether the judge had independently determined that there were multiple extortions. On remand, the district court invited both sides to provide written submissions to support their positions. Defendant submitted an affidavit from one witness. The district court denied defendant’s request for an evidentiary hearing, stating that it had independently determined that there were multiple bribes and nothing in the submitted affidavit altered that decision. The First Circuit held that the district court was not required to hold an evidentiary hearing prior to resentencing. Defendant did not have the right to present live testimony at sentencing. District courts may consider affidavits, proffers and far less formal sources of information at sentencing. The court satisfied the appellate court’s mandate when it found that it had independently determined that there were multiple extortions. U.S. v. Garafano, 61 F.3d 113 (1st Cir. 1995).
2nd Circuit says ambiguity in mandate required limited resentencing. (197) Defendant, a civilian translator, was convicted of retaining classified military documents without authorization. On his first appeal, an appellate panel concluded that, because defendant had not been charged with “gathering” classified information, his guidelines range should have been calculated under § 2M3.3, which applies to retaining classified information. The panel upheld other sentencing decisions. On remand, a new judge concluded that defendant was responsible for “gathering” the four classified documents. Further, the judge reopened the issue of an abuse of trust increase. On defendant’s second appeal, the Second Circuit found that the district court improperly engaged in de novo resentencing. The case had been remanded for limited, not de novo, resentencing. Although the mandate did not unequivocally say whether the panel contemplated a limited or de novo resentencing, it identified only a specific error to be corrected, the use of the incorrect guideline. Although the prior mandate should have been more explicit, any ambiguity should have been resolved in defendant’s favor. U.S. v. Malki, 718 F.3d 178 (2d Cir. 2013).
2nd Circuit reverses for refusal to reconsider organizer enhancement at resentencing. (197) Defendant was convicted by a jury of Clean Air Act violations arising from his malfeasance as an air monitor for asbestos removal projects. The district court vacated one conviction, but on the government’s initial appeal, the Second Circuit reinstated the jury verdict, and remanded. At defendant’s original sentencing, the district court had refused to apply a § 3B1.1(a) organizer increase because defendants had been “convinced to take part in this criminal endeavor by more criminally predisposed individuals.” At re-sentencing, however, the district court never mentioned the organizer enhancement, notwithstanding the reinstatement of a count of conviction that involved eight additional projects. The Second Circuit ruled that in refusing to consider the organizer enhancement at resentencing, the district court erred. It failed to consider that the reinstatement of the conspiracy count had changed the “factual mosaic related to th[e] offenses [of conviction]” such that it was required to analyze the organizer enhancement anew. U.S. v. Desnoyers, 708 F.3d 378 (2d Cir. 2013).
2nd Circuit requires consideration of clean-up costs submitted by victim after original sentencing. (197) Defendant was convicted by a jury of Clean Air Act violations arising from his malfeasance as an air monitor for asbestos removal projects. The district court vacated one conviction, but on the government’s appeal, the Second Circuit reinstated the jury verdict, and remanded. On remand, the court imposed the same five-year term of probation. The Second Circuit ruled that the new sentence was procedurally unreasonable because the court failed to include the clean-up costs to one victim, Nancy Page. Page had submitted her estimate after a co-defendant was sentenced, so the court did not consider it when it previously calculated loss. The district court’s loss estimate was not reasonable because no explanation was given for omitting Page’s estimate. However, the court properly refused to consider new clean-up cost estimates for a hospice project that had not been submitted at the original sentencing. Where the government knew of its obligation to present evidence at the original sentencing and failed to do so, it may not offer new evidence on remand absent some justification for failing to present the evidence in the first place. The government offered no such justification. U.S. v. Desnoyers, 708 F.3d 378 (2d Cir. 2013).
2nd Circuit upholds terrorism enhancement at resentencing. (197) Defendant was convicted of attacking a correctional officer while in prison awaiting trial on terrorism charges. He was initially sentenced to 384 months, but at a later resentencing, the court applied the terrorism enhancement, and sentenced him to life imprisonment. He argued that his new sentence was procedurally unreasonable because the district court imposed a longer sentence at resentencing than it had imposed originally. The Second Circuit disagreed, because the sentencing factors were different at the time of resentencing. The guidelines recommendation, which was a factor that 18 U.S.C. § 3553(a) required a judge to consider, had changed. The panel also rejected defendant’s challenge to the terrorism enhancement. There was no indication that the district court disagreed with the terrorism enhancement, or thought it was compelled to impose a sentence that was greater than necessary to accomplish the purposes of sentencing in § 3553(a). U.S. v. Salim, 690 F.3d 115 (2d Cir. 2012).
2nd Circuit reverses for failure to consider intervening developments during 15-year sentencing delay. (197) In 1991, defendant was convicted of drug and firearms charges, and the district court sentenced him to 405 months. On appeal, the court rejected all of his arguments except for a challenge to a four-level leadership role enhancement. The case was remanded for fact-finding. Defendant’s case remained dormant until 2008. At a sentencing hearing in 2009, the district court reimposed the same 405-month sentence, without responding to evidence about defendant’s rehabilitation or other proposed mitigating factors. The Second Circuit held that the district court procedurally erred in failing to consider how intervening developments, in particular, defendant’s rehabilitation, affected the § 3553(a) analysis. Defendant offered evidence that during the 15-year interval, he succeeded at numerous vocational and educational efforts, including earning honors degrees in business and finance. Defendant also tutored other inmates and received positive performance evaluations. If credited, this evidence could affect the weight given to considerations that were discounted in 1991. U.S. v. Hernandez, 604 F.3d 48 (2d Cir. 2010).
2nd Circuit remands for resentencing by different judge where judge held resentencing without defendant present. (197) Defendant pled guilty to drug charges and received a 180-month sentence. The appellate court vacated and remanded because the district court erroneously believed that the two minimum sentences must run consecutively. On remand, without notice to defendant or the presence of defendant or his counsel, the district court filed a memo and resentenced defendant to 180 months. The parties agreed that the judgment should be vacated and the case remanded for resentencing because the district court violated defendant’s right to be present at resentencing, and his right to notice that the court intended to impose an adverse non-Guidelines sentence. In addition, the district court failed to comply with 18 U.S.C. § 3553(c), which requires a sentencing judge to state “in open court” the reasons for imposing a particular sentence. The Second Circuit remanded for resentencing by a different judge, finding the judge might have substantial difficulty ignoring his previous views during a third sentencing proceeding. In addition, resentencing without the defendant or the prosecutor presents “bespeaks a lack of receptivity to their views and arguments.” U.S. v. DeMott, 513 F.3d 55 (2d Cir. 2008).
2nd Circuit holds that during Crosby remand court properly refused to consider post-sentencing rehabilitation. (197) On remand from the Supreme Court, the district court affirmed its original sentence, and defendant appealed. Defendant argued that the court’s failure to consider evidence of his post-sentencing rehabilitation when deciding whether to resentence violated his due process rights. The Second Circuit disagreed. It has repeatedly held that a district court is not to consider such evidence on a remand under U.S. v. Crosby, 397 U.S. 103 (2d Cir. 2005), abrogation recognized by U.S. v. Lake, 419 F.3d 111 (3d Cir. 2005). Rather, on a Crosby remand, a court must first make a “threshold determination” of whether “based on the circumstances at the time of the original sentence,” it would have imposed a different sentence had it known the guidelines were advisory. If the court find that it would not have imposed a materially different sentence, that is the end of the matter. Only if the court answers the threshold determination in the affirmative does a resentencing occur. Such a procedure does not violate a defendant’s due process rights. U.S. v. Ferrell, 485 F.3d 687 (2d Cir. 2007).
2nd Circuit holds that any error in stating duty to impose “reasonable” sentence was not reversible. (197) After a Crosby remand, the district court declined to resentence defendant, stating that it would have imposed the same sentence under an advisory guideline regime. Defendant argued that the district court improperly stated that it was obligated to impose a “reasonable sentence” after considering the § 3553(a) factors, when in fact, the court’s duty under § 3553(a) is to impose a sentence “sufficient, but not greater than necessary, to comply with the purposes set forth in” § 3553 (a)(2) (the so-called parsimony clause). Reasonableness is the appellate standard of review in judging whether a district court has accomplished its task. The Second Circuit ruled that any error by the district court in stating it was obligated to impose a reasonable sentence was not reversible. There was no indication that the court actually failed to consider the requirements of the parsimony clause when deciding whether to resentence defendant. The court actually stated that it was considering all of the § 3553(a) factors. There was no evidence in the record that the court’s reference to its duty to impose a sentence that was “reasonable” affected in any way its assessment of whether resentencing was warranted. U.S. v. Williams, 475 F.3d 468 (2d Cir. 2007).
2nd Circuit will review for reasonableness after court declines to resentence under Crosby. (197) The appellate court remanded defendants’ case pursuant to U.S. v. Crosby, 397 F.3d 103 (2d Cir. 2005), abrogation recognized by U.S. v. Lake, 419 F.3d 111 (3d Cir. 2005) for a determination of whether to resentence them in light of Booker. On remand, the district court declined to resentence either defendant, stating that it would make the same findings as to the guidelines and impose the same sentence. The Second Circuit held that it reviews a sentence for reasonableness even after a district court declines to resentence pursuant to Crosby. It was obliged to apply Booker/Fanfan to this case because it was pending on direct review. By the time a court’s decision not to resentence under Crosby reaches the appellate court, at least two claims of error related to sentencing will normally be foreclosed by the prior proceedings. First, any error in selecting a sentence under the mandatory guideline regime would be harmless if the judge decides on remand, in full compliance with now applicable requirements, that under Booker/Fanfan it would have imposed the same sentence. Second, the law of the case doctrine ordinarily will bar a defendant from reviewing challenges to rulings made by the sentencing court that were adjudicated by the appellate court, or that could have been adjudicated had the defendant made them during the initial appeal. U.S. v. Williams, 475 F.3d 468 (2d Cir. 2007).
2nd Circuit remands to new judge where judge misunderstood appellate opinion and admitted personal relationship with defendant influenced sentence. (197) Defendant pled guilty to making a false statement on a tax return. Although his guideline range was 15-21 months, the judge initially sentenced defendant to two years’ probation. The appellate court vacated on the ground that the departure lacked a sufficient explanation. On remand, the district judge imposed the same probationary sentence, supporting its decision by citing another sentencing proceeding. The appellate court ruled that the court erred in granting a departure on the basis of an unwarranted sentencing disparity, since the court only compared discrete defendants rather than similarly-situated defendants nationwide. On the third sentencing the court, on the basis of the appellate court opinion, imposed a 15-month sentence of imprisonment. The judge noted that the prior sentences of probation had been the product of “personal sympathy” towards defendant, and the relationship he had had with defendant when the judge was practicing law. On the third appeal, the Second Circuit once again remanded for resentencing. First, the judge did not consider, either explicitly or implicitly, the factors listed in § 3553(a). Rather, he appeared to believe that the prior appellate opinion required a term of imprisonment, which it did not. It only mandated that the court consider all of the § 3553(a) factors in deciding whether to impose a guideline or non-guideline sentence. In addition, the case should be sent to a different district judge, since the original judge candidly admitted that a past professional relationship and friendship with defendant had directly influenced both of his earlier decisions. U.S. v. Toohey, 448 F.3d 542 (2d Cir. 2006).
2nd Circuit holds that court had authority on remand to order mandatory restitution required by MVRA. (197) Defendants argued that the district court exceeded the scope of its mandate by ordering, for the first time at resentencing following remand, the payment of restitution. The appellate court’s opinion did not direct the district court to order restitution. However, a district court may resentence beyond the scope of the mandate, or may resentence on a limited remand using fresh considerations, if it has “cogent” or “compelling” reasons, including the need to correct a clear error. Here, it was indisputable that the MVRA required the district court at the initial sentencing to order restitution, and that the court failed to do so. Because it was error for the district court to have failed during the initial sentencing to order the mandatory restitution, the district court did not err by ordering restitution on remand. Restitution is mandatory under the MVRA even if the victim declined to receive restitution. The district court did not err in directing that, if the victim renounced its interest in the restitution payments, those funds would be assigned to the Crime Victims Fund. U.S. v. Johnson, 378 F.3d 230 (2d Cir. 2004).
2nd Circuit approves de novo resentencing where prior reversal undid “knot of calculation.” (197) Defendant argued that the district court exceeded the scope of its mandate when it applied, on remand, two sentencing enhancements not imposed at the initial sentencing proceeding. The Second Circuit held that the prior reversal effectively undid an entire “knot of calculation,” see U.S. v. Quintieri, 306 F.3d 1217 (2d Cir. 2002), and thus merited de novo resentencing. The prior appeal rejected an enhancement based on the district court’s finding that a murder committed by a co-conspirator constituted relevant conduct. The government had submitted a letter to the district court two days before sentencing, addressing the possibility of several other enhancements that might apply should the murder enhancement not apply. At the very least, this letter supported the view that the murder enhancement was part of the knot of calculation of the court’s initial sentence. It also showed that the issue of other enhancements was put aside because of the murder enhancement, and became newly relevant only upon remand. Accordingly, the district court was permitted to resentence defendant de novo on remand. U.S. v. Johnson, 378 F.3d 230 (2d Cir. 2004).
2nd Circuit says remand for reassessment of magnitude of departure did not mandate lesser departure or preclude change of supervised release term. (197) Defendant had a guideline range of zero to six months, but the court departed upward to 21 months. On appeal of the extent of the departure, the First Circuit found that the court erred in relying on improper factors in determining the extent of the departure. There was insufficient evidence to support the court’s finding of lack of remorse and defendant’s past record was already taken into account in his criminal history category. Prior to resentencing, defendant completed his 21-month sentence and was released. The government contended that the appellate decision did not permit the court to modify any part of defendant’s sentence other than his term of imprisonment, and since he completed his term, the matter was moot. Defendant contended that the court could compensate for the excess time he served by reducing the length of his supervised release term. The Second Circuit held that the appellate opinion did not foreclose modification of the supervised release term imposed on defendant. Because the court’s refusal to determine where it would have sentenced defendant without consideration of the impermissible factors and its refusal to consider reducing defendant’s supervised release term were influenced by its mistaken view that such reduction would contravene the appellate court mandate, the panel once again remanded. U.S. v. Barresi, 361 F.3d 666 (2d Cir. 2004).
2nd Circuit says departure could account for part of time spent in home detention. (197) On the first appeal, the Second Circuit held that defendant was not entitled to a minor role adjustment and remanded with instructions to resentence defendant at a base offense level of 15. The court left open the possibility that defendant was entitled to an additional one-level acceptance of responsibility reduction. On remand, instead of sentencing defendant in accordance with that mandate, the district court granted him a three-level downward departure based on the additional level for acceptance of responsibility, and (1) extraordinary rehabilitation, (2) aberrant behavior, (3) the detrimental effect of defendant’s imprisonment on his employer, and (4) credit for time served in home detention pursuant to defendant’s original sentence. The Second Circuit held that the departure was unwarranted in part because of the mandate in the original appeal and in part on the merits. The original mandate precluded litigation of defendant’s claim that his behavior was aberrant and that his further imprisonment was detrimental to his employer. Defendant’s post-sentencing rehabilitation, even if a proper ground for departure (which was doubtful in light of a November 2000 amendment), was not extraordinary. However, the court was permitted to depart to account for the time defendant spent in home detention. Because home detention is a lighter punishment than prison, the departure should be less than the time served under home detention. U.S. v. Carpenter, 320 F.3d 334 (2d Cir. 2003).
2nd Circuit holds that prior remand order was limited and did not allow de novo resentencing. (197) On defendant’s first appeal, the appellate court remanded because of a possible double counting error. The remand order neither explicitly stated that the sole issue on remand was double-counting, nor indicated that the court intended a de novo resentencing or was leaving any issues open for the district court’s further consideration other than the double counting question. The Second Circuit, relying on U.S. v. Stanley, 54 F.3d 103 (2d Cir. 1995), held that this mandate was limited, and did not allow for de novo resentencing. The opinion identified a specific sentencing error, remanded because of that error, and decided that all other claims were without merit. Defendant could not now raise arguments that he waived by not making them on his previous appeal. Only four of defendant’s arguments were not barred by the law of the case. Two of them – whether the court should have held a hearing to determine defendant’s mental competency at the resentencing and whether the court should have ordered a new PSR before resentencing – arose from events that occurred after the last appeal. Defendant’s argument that he should receive a departure for rehabilitation that occurred after his initial sentencing was not barred because it was based on intervening circumstances. Finally, defendant’s challenge to the amount of fine was not barred because, under USSG § 5E1.2, his fine was based on his offense level. U.S. v. Quintieri, 306 F.3d 1217 (2d Cir. 2002).
2nd Circuit upholds use of original PSR at resentencing. (197) Defendant argued that the district court violated Rule 32(b) by resentencing him after remand without an update PSR. Defendant did not object to the use of the original PSR at the time of resentencing. The Second Circuit held that the use of the original PSR at resentencing did not constitute plain error. Rule 32 does not require an updated PSR in the event of resentencing if “the parties are given a full opportunity to be heard and to supplement the PSR as needed.” Defendant was provided a full opportunity to supplement the original PSR, and the need for an updated PSR was not readily apparent. The parties all agreed on the resolution of the dispute issue. Defendant submitted a detailed letter updating the court on his conduct while incarcerated. The court provided the defendant, as well as his counsel, an opportunity to speak at the resentencing hearing. U.S. v. Quintieri, 306 F.3d 1217 (2d Cir. 2002).
2nd Circuit holds that ten-day period for filing notice of appeal applies to an order denying § 3582(c) motion. (197) Defendant filed a motion under 18 U.S.C. § 3582(c)(2) to modify his sentence in light of a November 2000 amendment to the guidelines. On July 13, 2001, the district court denied the motion as meritless. On August 20, 2001, 38 days later, defendant filed a notice of appeal and requested leave to appeal. The district court construed the request as a Fed. R. Civ. P. 4(b)(4) motion for an extension of time to file a notice of appeal and denied the motion because there had been no showing of excusable neglect or good cause. The Second Circuit held that the applicable period to file a notice of appeal from the denial of a § 3582(c) motion is the ten-day period applicable to criminal proceedings, not the 60-day period applicable to civil proceedings when the United States is a party. A § 3582(c)(2) motion is a continuation of the prior criminal proceeding. Thus, defendant’s notice of appeal was not timely. U.S. v. Arrango, 291 F.3d 170 (2d Cir. 2002).
2nd Circuit holds that increased sentence at resentencing was supported by new evidence. (197) After defendant was indicted on drug charges, a confidential informant who had assisted in the investigation of the case was murdered. Defendant’s trial went forward and he was convicted. However, his conviction on one count was reversed on appeal. While this appeal was pending, defendant was indicted for murdering the informant to prevent him from testifying at the drug trial. The jury acquitted him on the murder charges. At resentencing on the remaining drug count, the court sentenced defendant de novo, and increased his offense level based on its finding that defendant had murdered the informant. The Second Circuit held that district court properly resentenced defendant de novo. The appellate court mandate was open. The district court assessed new evidence upon which it rested its decision to resentence defendant de novo. At the time of the initial sentencing, the government had intimated without alleging that defendant had killed the informant. However, the government did not have the means of proving that because the key witness to the murder did not come forward until after the first sentencing. New evidence that clearly implicates a defendant in a crime can be an intervening circumstance that a judge must consider during resentencing, notwithstanding that the suspicion existed earlier. U.S. v. Bryce, 287 F.3d 249 (2d Cir. 2002).
2nd Circuit holds that remand did not bar departure based on intervening circumstances. (197) The district court originally departed downward based on defendant’s rehabilitation. On defendant’s first appeal, the Second Circuit reversed, finding no evidence of extraordinary rehabilitation. The panel ordered the district court to “resentence [defendant] according to his original offense level of 31.” On remand, the district court held that it could not consider a departure based on defendant’s post-sentencing rehabilitation, and that it was required to sentence defendant with an offense level of 31. The Second Circuit held that the terms of the remand did not preclude a departure based on intervening circumstances. Thus, it did not foreclose the possibility of a rehabilitation that might occur between the last appeal and the resentencing. A court’s duty is always to sentence the defendant as he stands before the court on the day of sentencing. U.S. v. Bryson, 229 F.3d 425 (2d Cir. 2000).
2nd Circuit holds that mandate rule did not bar court from considering request for downward departure. (197) The district court dismissed a tax evasion information filed against defendant, ruling that his offer in compromise, submitted pursuant to the voluntary disclosure policy of the IRS, had been improperly turned down. In U.S. v. Tenzer, 127 F.3d 222 (2d Cir. 1997) (Tenzer I), the Second Circuit reversed, holding that defendant’s offer did not meet the requirements of that policy. Defendant then pled guilty, but requested a downward departure in part because of his voluntary disclosure to the IRS. The district court concluded that it could not depart because of the mandate in Tenzer I. The Second Circuit held that the mandate rule did not bar the court from departing. Tenzer I merely decided that defendant did not qualify for the voluntary disclosure policy; it did not decide any issues concerning sentencing. The district court could properly consider aspects of defendant’s case that, although irrelevant for purposes of conviction, might be relevant for sentencing. For example, although a defendant’s good intentions were not an appropriate basis for dismissal, they could be considered by the judge at sentencing. Judge Miner dissented. U.S. v. Tenzer, 213 F.3d 34 (2d Cir. 2000).
2nd Circuit says that resentencing as result of failure to advise defendant of right to appeal should be de novo. (197) The district court granted defendant’s § 2255 petition, ruling that the sentencing court’s failure to inform defendant of his right to appeal was a per se error under Fed. R. Crim. Proc. 35(a)(2). The court vacated his sentence “in all respects” and ordered the case scheduled for resentencing. The court denied defendant’s request for de novo sentencing, reasoning that since the sentence was vacated on grounds unrelated to the sentence itself, and since the purpose of the resentencing was only to permit defendant to be advised of his right to appeal, it was unnecessary for the court to consider new issues that were not raised at the original sentencing. The Second Circuit ruled that under Soto v. U.S., 185 F.3d 48 (2d Cir. 1999) and Krevsky v. U.S., 186 F.3d 237 (2d Cir. 1999), resentencing as a result of a sentencing court’s failure to advise defendant of his right to appeal should be de novo. Soto held that a court’s failure to comply with Rule 32(c)(5) required remand to determine by clear and convincing evidence whether Soto was aware of his right to appeal. The court further held that if Soto was not so aware, then “he shall be resentenced de novo—and advised of his appellate right—so that he may exercise his right to appeal.” U.S. v. Harris, 209 F.3d 156 (2d Cir. 2000).
2nd Circuit rejects need for updated PSR at resentencing. (197) Defendant successfully challenged his § 924(c) conviction based on Bailey v. United States, 516 U.S. 137 (1995). He then argued that the district court violated Rule 32(b) by resentencing him for the underlying drug conviction without an updated PSR. His original PSR was more than five years old at the time of his resentencing. The Second Circuit found no plain error in the district court’s use of defendant’s original PSR, since defendant had the adequate opportunity to be heard and to supplement his PSR as needed before resentencing. Although Rule 32(b) requires an initial PSR before sentencing, this rule does not mandate an updated PSR in the event of resentencing. When a court holds a resentencing hearing at which the parties are given a full opportunity to be heard and to supplement the PSR, courts need not order or rely on an updated PSR. At the resentencing hearing, defense counsel indicated that defendant had not been involved in any difficulties or infractions during his incarceration and that he had been given “out custody” status, which permitted him to work outside the prison unsupervised. Based on this and evidence of defendant’s other prison activities, the district court found that defendant had “been a good prisoner with a couple minor infractions.” U.S. v. Triestman, 178 F.3d 624 (2d Cir. 1999).
2nd Circuit resentences on drug count after firearm count vacated in § 2255 motion. (197) Defendant was originally convicted of drug and firearms charges. He successfully petitioned the court under § 2255 to vacate the § 924(c) firearm conviction in light of the Supreme Court’s decision in Bailey v. U.S., 116 S.Ct. 501 (1995). The district court then resentenced defendant on the drug count, imposing a § 2D1.1(b)(1) enhancement. The Second Circuit held that a court has jurisdiction to resentence an unchallenged drug conviction after a successful § 2255 challenge of a § 924(c) conviction. Every circuit to consider the issue has agreed with this view. The term “sentence” in § 2255 is not as narrow as defendant contended. Since the mandatory five year sentence imposed under § 924(c) runs consecutively to the drug sentence, defendant was currently serving the “sentence” for the drug crime. Defendant was only able to challenge the § 924(c) conviction by accepting some form of an aggregate sentence theory. This outcome makes good sense, given the interdependence of the two sentences. U.S. v. Gordils, 117 F.3d 99 (2d Cir. 1997).
2nd Circuit finds drug and firearms sentences interdependent despite judge’s statement. (197) Defendant was convicted of drug and firearms charges. After he successfully challenged his firearm conviction under § 2255, the district court concluded that it lacked jurisdiction to resentence him on the remaining drug count. The Second Circuit reversed, ruling that the court did have jurisdiction to resentence defendant under U.S. v. Gordils, 117 F.3d 99 (2d Cir. 1997), decided the same day as this opinion. In stating that she lacked jurisdiction, the judge said she had originally sentenced defendant to individual sentences for each count rather than a single sentencing package. Defendant argued that the judge explicitly took into account his possession of a weapon in determining his original drug sentence, and therefore she could not now enhance his sentence under § 2D1.1 (b)(1). This argument was meritless. The guidelines establish a truly interdependent relationship between the mandatory consecutive firearm sentence and the sentence for the underlying drug count. At the original sentencing, because of the § 924(c) conviction, the government could not seek, nor could the court impose, the two level enhancement called for by § 2D1.1(b)(1). Given that legal relationship, the district judge’s subjective belief that the sentences were separate was not sufficient to defeat jurisdiction under § 2255 to resentence defendant on the drug count. Rodriguez v. U.S., 116 F.3d 1002 (2d Cir. 1997).
2nd Circuit holds court lacked authority under Rule 35(c) to “correct” sentence. (197) The district court originally imposed a 57‑month sentence. Months later, the court purported to “correct” the original sentence under Rule 35(c). It made a downward criminal history departure, and several other downward departures, and imposed a 24-month sentence. In U.S. v. Abreu‑Cabrera, 64 F.3d 67 (2d Cir. 1995), the Second Circuit held that Rule 35(c) did not permit the court to change a sentence more than 7 days after sentence was imposed, and that the “error” perceived by the court was not the sort of arithmetical, technical, or other clear error that can be corrected under Rule 35(c). On remand, the district court did not re‑impose the original sentence. Instead, it used the original adjusted offense level but the lower criminal history category to impose a sentence of 46 months. The Second Circuit again remanded with directions to impose the original 57‑month sentence. Although in the original appeal the court did not expressly invalidate the criminal history departure, the ruling rejected such a departure because the district court lacked authority, after sentencing, to make any changes beyond the limited scope of Rule 35(c). U.S. v. Abreu‑Cabrera, 94 F.3d 47 (2d Cir. 1996).
2nd Circuit says upward departure on remand not the result of vindictiveness. (197) Defendant was involved in a kidnapping conspiracy to recover unpaid drug debts. He was originally convicted of a drug conspiracy, impeding federal agents, and using a firearm during a drug trafficking crime. The Second Circuit reversed all but Count 2, impeding federal agents. At resentencing, the district court departed upward to the statutory maximum of 120 months based on defendant’s involvement in the armed kidnapping. Defendant argued that the departure was vindictive. The Second Circuit affirmed, because the 120-month sentence was the same as the original sentence. At the original sentencing, § 5G1.2(b) required the statutory maximum 120 months for Count 2 because that count had been grouped with an offense carrying a 235 month sentence. The resentencing was based on a different set of circumstances, and the district court was free to consider grounds for departure not considered at the first sentencing proceeding. The evidence showed that defendant knowingly participated in the kidnapping, even though he may not have known the kidnapping was drug-related,. On this basis alone the departure was justified. U.S. v. Atehortva, 69 F.3d 679 (2d Cir. 1995).
2nd Circuit holds mandate rule barred reopening enhancement issue on remand. (197) In defendant’s first appeal, a Second Circuit panel vacated defendant’s sentence because the district court’s loss finding was not adequately supported. On remand, the district court recalculated the loss. In his second appeal, defendant for the first time challenged a § 2F1.1(b)(2) enhancement for more than minimal planning. The Second Circuit held that the mandate rule barred the district court from reopening the enhancement issue, since the initial opinion did not call for de novo sentencing. The mandate rule bars a district court from reconsidering or modifying any of its prior decisions that have been ruled on by the court of appeals. Defendant in his first appeal failed to raise the issue he now sought to litigate. Where the sentence is vacated and remanded for reconsideration of a specific issue, the mandate rule prevents hearing an issue not raised in the initial appeal. Since the appellate opinion did not call for de novo resentencing, the new issue could not be raised on remand. U.S. v. Stanley, 54 F.3d 103 (2d Cir. 1995).
2nd Circuit permits court to revisit extent of downward departure on remand. (197) Defendant had a guideline range of 51 to 63 months. The district court granted the government’s § 5K1.1 motion and reduced defendant’s offense level by one, which resulted in a guideline range of 46 to 57 months. The district court imposed a 51-month sentence. Defendant and the government questioned whether the district court intended to sentence defendant to a sentence that could have been given without the departure. Since the case was being remanded on other grounds, the Second Circuit authorized the district court to revisit this issue as it felt appropriate. U.S. v. Amato, 46 F.3d 1255 (2d Cir. 1995).
2nd Circuit remands to new judge where judge said he would impose same sentence even absent mistake. (197) In sentencing defendant to the maximum 6-month prison term, the district court incorrectly said defendant was on probation when he committed the instant offense. When defendant tried to address the error, the judge silenced him. At a hearing on whether to stay the execution of sentence pending appeal, the judge acknowledged his error, but said he would have imposed the maximum 6-month sentence anyway. The Second Circuit found that the judge’s mistaken belief as to defendant’s probationary status was plainly material, and given this due process violation, remand was necessary. However, since the judge made it clear that remand to him would be “an empty gesture,” the appellate court remanded to a new judge. U.S. v. McDavid, 41 F.3d 841 (2d Cir. 1994).
3rd Circuit says court exceeded scope of mandate when it addressed restitution at resentencing. (197)Defendant was convicted of bank fraud, and was ordered to pay restitution of $68,452 for losses incurred by two banks. Although his PSR identified a $9,000 loss to a third bank, the court did not hold him responsible for that loss, and neither defendant nor the government appealed that ruling. The Third Circuit remanded for resentencing based on an error in the number of victims under § 2B1.1. At resentencing, the district court, at the parties’ urging, revisited the matter of his restitution. The government argued that defendant should also be ordered to repay the $9,000 to the third bank, and defendant maintained the restitution should be reduced to zero. The district court agreed with the government, and increased the amount of defendant’s restitution by $9,000. The Third Circuit held that the district court exceeded the scope of the remand by reconsidering the restitution issue. The mandate identified only two sentence-related issues for the court to consider on remand, the number of victims and the calculation of defendant’s criminal history. Moreover, the parties waived any argument that the amount of restitution should be different. U.S. v. Smith, __ F.3d __ (3d Cir. May 9, 2014) No. 13-1390.
3rd Circuit says increased fine on remand was not vindictive. (197) In 2008, defendant pled guilty to five child pornography charges, and was sentenced to 300 months. The court did not specify a particular sentence for each count of conviction, so the case was remanded for resentencing. The district court resentenced defendant to the same prison term of 300 months, but increased the fine from $100,000 to $250,000. The Third Circuit rejected defendant’s argument that the district court vindictively increased his fine at resentencing, in violation of the Fifth Amendment. Even if the presumption of vindictiveness applied, the particular facts of the case overcame the presumption. First, the district court never actually considered the appropriate factors when assessing a fine during the first sentencing, but it did so at the second sentencing. Second, there was evidence that defendant’s sentence was partially based on the government’s new information presented at his second sentencing. U.S. v. Ward, 732 F.3d 175 (3d Cir. 2013).
3rd Circuit allows court on remand to consider post-sentencing rehabilitation. (197) In defendant’s initial appeal, the Third Circuit vacated his sentence because the district court did not address his request for a minor role reduction. At resentencing, defendant asked the district court also to consider his post-sentencing rehabilitative efforts. The district court refused, believing that its authority on remand was limited to the request for a minor role adjustment. One week later, the Supreme Court decided Pepper v. U.S., 131 S. Ct. 1229 (2011), which held that once the original sentence is set aside on appeal, a district court can consider post-sentencing rehabilitation on remand, unless the court ordering the remand expressly precludes consideration of such evidence. The Third Circuit ruled that its “rather generic language” in remanding the case was not sufficient to limit the district court’s ability on remand to consider evidence of defendant’s post-sentencing rehabilitation. U.S. v. Salinas-Cortez, 660 F.3d 695 (3rd Cir. 2011).
3rd Circuit remands where unclear if court knew it could consider post-incarceration rehabilitation. (197) Defendant was convicted of drug charges, and two counts of possessing a firearm in furtherance of drug trafficking. One of the firearm charges was vacated on appeal, and defendant was resentenced. After resentencing, the Supreme Court decided Pepper v. U.S., 131 S.Ct. 1229 (2011), which held that at resentencing, a district court may consider a defendant’s post-incarceration rehabilitation. Here, the district court permitted defendant to offer evidence at resentencing of his positive record since he had been incarcerated. Nonetheless, the court said that defendant’s rehabilitation was “fine as far as it goes, but doesn’t really figure much in my calculus at this point.” The Third Circuit found this comment ambiguous, and remanded so that the court could, if it chose, consider defendant’s post-incarceration rehabilitation as permitted by Pepper. The district court might conclude that no alteration of defendant’s sentence was necessary. U.S. v. Diaz, 639 F.3d 616 (3rd Cir. 2011).
3rd Circuit permits de novo resentencing where sentence for vacated count was interdependent with remaining counts. (197) Defendant was convicted of drug charges and two counts of violating 18 U.S.C. § 924(c). The district court originally sentenced him to 480 months—a 240-month sentence for the drug count, and two 120-month sentences for each of the § 924(c) counts. On appeal, the appellate court vacated one of the § 924(c) convictions. On remand, the district court resentenced defendant to 400 months – 240 months for the drug offense, and 160 months for the remaining § 924(c) offense. The Third Circuit held that the district court properly resentenced defendant de novo, since the convictions resulted in interdependent sentences. When a conviction for one or more interdependent counts is vacated on appeal, the resentencing proceeding conducted on remand is de novo unless the appellate court specifically limits the district court’s authority. Here, although the Guideline range that actually applied to defendant both originally and on remand was 360 months to life, in settling upon that range the district court had to compare it to a composite range that considered each of the offenses and builds one on top of the other. U.S. v. Diaz, 639 F.3d 616 (3rd Cir. 2011).
3rd Circuit holds that reduction at resentencing was inconsistent with proper sentencing procedure. (197) Defendant’s guideline range was 41-51 months. The government did not move for a downward departure, and the district court sentenced him to 48 months. On appeal, the Third Circuit agreed with defendant that the government breached the plea agreement by failing to move for a substantial assistance departure, and remanded for resentencing. On remand, the district court incorporated its prior rulings that established a guideline range of 41-51 months, and then reduced defendant’s original sentence of 48 months by six months, imposing a sentence of 42 months. The Third Circuit reversed, finding that the manner in which the district court reduced defendant’s prior sentence was inconsistent with proper sentencing procedure. When a defendant is promised the possibility of a departure from the guidelines under § 5K1.1, he may reasonably expect to be given the possibility of a sentence below the guideline range. By departing from a previously imposed sentence, rather than from the calculated guideline range, the court inverted the proper sentencing procedure. U.S. v. Floyd, 499 F.3d 308 (3d Cir. 2007).
3rd Circuit says government cannot raise new issue on resentencing. (197) In U.S. v. Dickler, 64 F.3d 818, 832 (3d Cir. 1995), the Third Circuit held that the government should not be allowed to take a “second bite at the apple,” by raising new issues at resentencing that it did not raise the first time around. See also U.S. v. Leonzo, 50 F.3d 1086, 1088 (D.C. Cir. 1995) (remanding for resentencing on the existing record where the government failed to sustain its burden of proving loss under § 2F1.1); U.S. v. Parker, 30 F.3d 542, 553-54 (4th Cir. 1994) (no new evidence permitted on resentencing where prosecution had failed to introduce sufficient evidence that offense took place within 1000 feet of a “playground”). In this case, the court found it unnecessary to reach this issue because the government’s new argument regarding “bargained for interest” did not affect the sentence on resentencing. U.S. v. Napier, 273 F.3d 276 (3d Cir. 2001).
3rd Circuit holds that defendant waived error when he failed to pursue direct appeal from initial judgment. (197) After sentencing, defendant filed a notice of appeal. The government filed a notice of cross-appeal contending that the district court committed clear error in failing to sentence defendant to the ten-year minimum term required by 21 U.S.C. § 841(b)(1)(B). Defendant voluntarily withdrew his appeal. The appellate court agreed that the district court should have imposed the mandatory minimum sentence, and directed the district court “for further proceedings consistent with this opinion.” After resentencing, defendant argued that the district court used the wrong standard to determine the quantity of drugs involved in his offense. The Third Circuit held that defendant waived any alleged error by failing to pursue his initial appeal. Each allegation of error should have been raised in the direct appeal. By voluntarily withdrawing the appeal, defendant failed to preserve these issues. U.S. v. Pultrone, 241 F.3d 306 (3d Cir. 2001).
3rd Circuit holds that defendant must be resentenced in person. (197) On defendant’s first appeal, the Third Circuit remanded and directed the district court to consider defendant’s request for a downward departure for extraordinary acceptance of responsibility. The district court held a full hearing and rejected the request in a written opinion, rather than before defendant. After this appeal was filed, the district court announced its ruling in defendant’s presence. The Third Circuit again reversed, holding that defendant was entitled to be resentenced in person. Rule 43’s requirement that the defendant be present at the imposition of sentence is not a meaningless formality, but “a fundamental procedural guarantee.” Although the first sentencing order conformed with Rule 43, remand was still required because the previous panel “reversed,” effectively vacating the sentence without directing a particular result. The error was not harmless, because the appellate court could not be sure that there was no “reasonable possibility” that the judge’s failure to impose sentence in defendant’s presence had no effect on the sentence. The district court’s announcing its decision in defendant’s presence after it lost jurisdiction over the matter was not an adequate remedy. U.S. v. Faulks, 201 F.3d 208 (3d Cir. 2000).
3rd Circuit approves upward departure where court ordered “resentencing, if appropriate.” (197) Defendant was originally convicted of an intentional killing in furtherance of a continuing criminal enterprise, and various related drug charges. On appeal, a Third Circuit panel reversed the murder conviction on the ground of trial error, and then said “We affirm the judgment of conviction as to the drug charges and remand for resentencing, if appropriate, on those counts.” On remand, the district court vacated the 10-year terms imposed on the two drug counts, and then departed upward to resentence defendant to life imprisonment. The court found that the murder was relevant conduct that justified an upward departure under § 5K2.1 (Death) and § 5K2.8 (Extreme Conduct). In this second appeal, the Third Circuit held that the district court had authority to resentence defendant on the drug counts. The appellate court mandate clearly gave the district court authority to “resentence, if appropriate on those counts.” Because defendant challenged his drug convictions on appeal, the panel’s authority to remand for resentencing on those counts came directly from 28 U.S.C. § 2106. The upward departure was reasonable. The district court followed U.S. v. Kikumura, 918 F.2d 1084 (3d Cir. 1990) and found that the government established by clear and convincing evidence that defendant intentionally killed the victim. U.S. v. Murray, 144 F.3d 270 (3d Cir. 1998).
3rd Circuit permits resentencing on drug count after vacating firearm conviction. (197) In U.S. v. Davis, 112 F.3d 118 (3d Cir. 1997), the Third Circuit held that a district court has jurisdiction to resentence a § 2255 petitioner on unchallenged counts where the petitioner successfully attack a § 924(c)(1) conviction under Bailey v. U.S., 116 S.Ct. 501 (1995). In a case pending when Davis was decided, the Third Circuit found that it was bound by internal operating rules to follow Davis. However, Judge Sloviter filed a concurring opinion in which she disagreed with the holding in Davis. U.S. v. Martin, 116 F.3d 702 (3d Cir. 1997).
3rd Circuit allows gun increase on drug counts after § 924(c) count is vacated. (197) Defendant successfully moved under 28 U.S.C. § 2255 to vacate his § 924(c) conviction. However, In resentencing defendant, the district court imposed a § 2D1.1(b)(1) enhancement for possessing a firearm during a drug crime. The Third Circuit held that after vacating the § 924(c) conviction, the district court had jurisdiction under § 2255 to resentence on the remaining drug counts. The language “correct the sentence” in § 2255 is not limited to the portion of the sentence directly associated with the vacated conviction. The § 924(c) offense and the underlying offense are interdependent and result in an aggregate sentence, not sentences that may be treated discretely. Resentencing did not violate defendant’s due process rights because defendant had no legitimate expectation of finality in his sentence. U.S. v. Davis, 112 F.3d 118 (3d Cir. 1997).
3rd Circuit allows § 2D1.1(b)(1) gun increase after § 924 sentence is vacated. (197) Defendant was found in lying on a bed with a loaded firearm in a room in which there was also a substantial quantity of cocaine base. He was convicted of drug and § 924(c) firearms charges. The government did not urge the court to apply a § 2D1.1(b)(1) enhancement. Defendant appealed, and while his appeal was pending the Supreme Court decided Bailey v. U.S., 116 S.Ct. 501 (1995), which required “active employment” of a firearm for a § 924(c)(1) conviction. Defendant and the government stipulated that the appeal would be dismissed so defendant could move to vacate his § 924(c) conviction. The district court vacated his sentence, but then imposed a § 2D1.1(b)(1) enhancement to the drug sentence. On appeal, the Third Circuit affirmed. The government did not waive its rights because no enhancement was previously possible because of the § 924(c) conviction. Defendant’s acquittal on § 924(c) charges did not bar the § 2D1.1(b)(1) enhancement. The district court did not lose jurisdiction over the drug count not challenged in defendant’s motion to vacate. U.S. v. Goggins, 99 F.3d 116 (3d Cir. 1996).
4th Circuit says court did not violate mandate by departing upward on remand. (197) At the initial sentencing, the court rejected the government’s motion for an upward criminal history departure, sentencing defendant to 150 months, at the top of his 120-150 month guideline range. That sentence was vacated on appeal. On remand, based on a change in law, defendant’s new guideline range was 70-87 months. The government again moved for a criminal history departure, which the district court granted, sentencing defendant to 120 months. The Fourth Circuit held that this did not violate the mandate in its previous opinion. The prior panel remanded for a complete resentencing. Nothing in the mandate altered the district court’s duty to “make an individualized assessment [of defendant] based on the facts presented.” The district court denied the government’s upward departure motion at defendant’s original sentencing hearing only because defendant’s original guideline sentencing range of up to 150 months “accomplished the purposes of the sentencing.” The court faced a much different guideline range at resentencing. U.S. v. Alston, 722 F.3d 603 (4th Cir. 2013).
4th Circuit holds that mandate rule barred court from revisiting restitution on remand. (197) Defendant was convicted of numerous counts of fraud, and was sentenced to 600 months’ imprisonment and ordered to pay $3,952,985 in restitution. In his first appeal, the Fourth Circuit held that the court erred in sentencing defendant to 600 months, and remanded. At resentencing, the district court imposed a sentence of 300 months, and ordered defendant to pay restitution of $4,274,078. At a second hearing, the court increased the restitution to $20,726,005. The Fourth Circuit agreed with defendant that the mandate rule barred the district court from revisiting the restitution order on remand. The opinion vacated only defendant’s 600-month sentence, and limited the district court to correcting only the incarceration portion of defendant’s sentence. U.S. v. Pileggi, 703 F.3d 675 (4th Cir. 2013).
4th Circuit holds that court properly limited resentencing. (197) Defendant worked at one of 16 call centers operating as part of a telemarketing sweepstakes scheme. The loss attributable to defendant’s call center was about $760,000, but the total loss from all 16 call centers was $4.2 million. On defendant’s first appeal, the Fourth Circuit held that the district court erred in basing defendant’s sentence on $4.2 million in losses. On remand, defendant argued that he was entitled to a de novo hearing, but the district court ruled that it could not recalculate the guidelines range because the Fourth Circuit’s opinion stated that the guidelines range was proper, and resentencing was based on an error in the § 3553(a) and restitution analyses. The Fourth Circuit upheld the district court’s interpretation. The sentencing error identified in the previous appeal dealt with the district court’s consideration of factors outside the scope of the record during the § 3553(a) analysis, and in calculating the amount of restitution ordered. This error in no way impacted the calculation of defendant’s guidelines range. The guidelines calculation was not an issue in the original appeal and review of that calculation was not expressly governed by the court’s holding or mandate. U.S. v. Susi, 674 F.3d 278 (4th Cir. 2012).
4th Circuit upholds lower sentence imposed on remand. (197) Defendant was originally sentenced to concurrent sentences of 180 months for multiple fraud counts. He appealed, and on remand, the district court resentenced defendant to 160 months. He contended that his new sentence was substantively unreasonable because district court’s comments at sentencing showed that the length of his sentence was in part to punish him for exercising his right to trial and successfully appealing his first sentence. The Fourth Circuit held that defendant’s sentence was reasonable. The presumption of vindictiveness did not apply to defendant’s sentence because his sentence after remand (160 months) was less than his original sentence (180 months). Moreover, the district court’s references to defendant’s decision to go to trial were made in response to defendant’s request for a downward variance. It reflected the principle that defendants who plead guilty and cooperate can be given the benefit of that cooperation as part of their guidelines calculation, while those who go to trial have no entitlement to the same benefit. U.S. v. Susi, 674 F.3d 278 (4th Cir. 2012).
4th Circuit says inadvertent failure to reimpose fine at resentencing was not correctable under Rule 35(a). (197) At defendant’s original sentencing, the district court sentenced defendant to 12 months of imprisonment and a $2,000 fine. The case was remanded for resentencing for reasons unrelated to the fine. On remand, the district court sentenced defendant to 12 months, but declined to impose a fine. Four days later, the court did impose the fine, stating that it had failed to do so at resentencing because of an oversight. Rule 35(a) allows a court to amend a sentence within seven days after sentencing, to “correct a sentence that resulted from arithmetical, technical, or other clear error.” The Fourth Circuit held that the court’s failure to re-impose the fine at the first resentencing did not constitute “clear error” within the meaning of Rule 35(a), and reversed. The scope of “clear error” correctable under Rule 35(a) is extremely narrow, and generally requires some reversible error. The court’s failure to order a find was not reversible error. Had the judge expressly stated that it intended to impose the fine and then failed to do so, then this might constitute an “acknowledged and obvious mistake” that could be corrected. U.S. v. Fields, 552 F.3d 401 (4th Cir. 2009).
4th Circuit holds that denial of allocution at resentencing hearing was plain error. (197) At the original sentencing hearing, defendant personally addressed the court, and presented several grounds for leniency. However, the district court found that a sentence at the top of the 97-121 month guideline range was appropriate and imposed a 121-month sentence. While his appeal was pending, the Supreme Court decided Booker, and the case was remanded for resentencing. On remand, the court found the same guideline range, and defense counsel argued that various factors relating to § 3553(a) warranted a variance. Nevertheless, the court again imposed a 121-month sentence. At no time during the resentencing hearing did the court give defendant an opportunity to allocute. The Fourth Circuit held that the district court plainly erred in denying defendant the right of allocution at the resentencing hearing. The district court was directed to conduct a new sentencing determination on remand. Thus, even though defendant had addressed the court at the original sentencing hearing, he had a renewed right to allocate at resentencing. Although the court’s prior decision to impose a sentence at the top of the guideline range cast some doubt on whether defendant could have persuaded the court to impose a lesser sentence on remand, it was possible that he could have done so. U.S. v. Muhammad, 478 F.3d 247 (4th Cir. 2007).
4th Circuit remands to a new judge where original judge said he had difficulty imposing a guideline sentence. (197) Defendant obstructed justice by becoming a fugitive and living under an alias supported by false identification documents. Nevertheless the sentencing judge refused to increase the sentence for obstruction of justice, and gave defendant credit for acceptance of responsibility. The Fourth Circuit reversed the sentence and directed that the case be assigned to a different judge for resentencing on remand because the original sentencing judge stated that he had “great difficulty in ordering [defendant] incarcerated for the amount of time that results” from application of the sentencing guidelines. U.S. v. Hudson, 272 F.3d 260 (4th Cir. 2001).
4th Circuit says law of the case precluded challenge to relevant conduct finding. (197) Defendants, officers of the United Way of America, were originally convicted of fraud, money laundering, and tax evasion stemming from their improper use of UWA money. The money laundering convictions were reversed on appeal. At resentencing, defendants argued that losses to PUI, a support organization related to UWA, were not relevant conduct since defendants successfully moved for judgments of acquittal on the PUI counts at the close of the government’s case-in-chief. The Fourth Circuit held that the law of the case precluded defendants’ challenge to the relevant conduct finding. At their initial sentencing, the district court held defendants accountable for the exact same losses as it did at resentencing. In their joint brief in the first appeal, one defendant challenged this action on the same basis now raised by both defendants. Although the Fourth Circuit did not separately address this argument in the first appeal, the court explicitly acknowledged that it had reviewed all of the other contentions and found no reversible error. Under law of the case principles, the rejection of one defendant’s argument became the law of the case for both defendants. Absent exceptional circumstances not present here, the appellate court would not address these arguments a second time. U.S. v. Aramony, 166 F.3d 655 (4th Cir. 1999).
4th Circuit rules that new enhancement at resentencing did not violate mandate rule. (197) Defendants, officers of the United Way of America, were originally convicted of fraud, money laundering, and tax evasion stemming from their improper use of UWA money. The money laundering convictions were reversed on appeal. At resentencing, the district court applied a two-level increase under § 2F1.1(b)(2)(B) for a fraud scheme involving more than one victim. The Fourth Circuit held that the application of the new enhancement at resentencing did not violate the mandate rule. The mandate rule forecloses litigation on remand of issues decided by the district court but foregone on appeal or otherwise waived. At the initial sentencing, the court discussed the applicability of a § 2F1.1(b) (2)(A) increase for more than minimal planning. However, it did not address the applicability of a § 2F1.1(b)(2)(B) increase. This was understandable since defendants’ money laundering convictions drove their respective offense levels at their initial sentencing. U.S. v. Aramony, 166 F.3d 655 (4th Cir. 1999).
4th Circuit finds no double jeopardy in resentencing after completing drug sentence. (197) Defendant was sentenced to 168 months on drug counts, and a consecutive 60-month sentence for using a firearm, under 18 U.S.C. § 924(c). Thereafter, the district court granted the government’s Rule 35(b) motion and reduced the drug sentence to 37 months, leaving in place the 60-month § 924(c) sentence. Defendant then successfully challenged the § 924(c) conviction on the ground that he did not actively employ the firearm, as required by Bailey v. U.S., 116 S.Ct. 501 (1995). Nevertheless, at resentencing on the drug counts, the court granted the government’s request for a two-level enhancement under guideline section 2D1.1(b)(1) for possessing the firearm, and imposed an overall 89-month sentence. The Fourth Circuit affirmed, relying on U.S. v. Hillary, 106 F.3d 1170 (4th Cir. 1997). Resentencing did not violate double jeopardy, even though defendant had already served 37 months on his drug sentence. The double jeopardy clause only bars resentencing where the sentence has been fully discharged. Under the sentencing package theory, defendant was serving one “unified term of imprisonment” of 97 months when he was resentenced. U.S. v. Smith, 115 F.3d 241 (4th Cir. 1997).
4th Circuit prohibits government from presenting additional evidence to support protected location enhancement. (197) Defendant was convicted of distributing crack within 1000 feet of a playground, as defined under 21 U.S.C. § 860. The 4th Circuit found insufficient evidence that the nearby park qualified as a “playground,” and reduced the conviction to a § 841 conviction. The appellate court also barred the district court from enhancing the sentence under § 2D1.2(a)(1) for a drug offense occurring near a “protected location,” and prohibited the government from introducing additional evidence on remand to prove that the park contained a playground. The prosecution already had a full and fair opportunity to offer whatever proof about the park it could assemble. U.S. v. Parker, 30 F.3d 542 (4th Cir. 1994).
4th Circuit upholds resentencing even though defendant was not represented by counsel. (197) Defendant alleged he was not represented by counsel at a resentencing hearing ordered by the appellate court. The 4th Circuit held that any error was harmless, since the resentencing simply conformed to the mandate of the appellate court, leaving no discretion to the district court. In a previous unpublished opinion, the 4th Circuit had remanded the case to the district court with instructions to vacate one of the two convictions under 21 U.S.C. § 841 and to decrease by $50 the amount assessed under 18 U.S.C. § 3013. There was no function for counsel to perform at resentencing; the district court had no choice but to follow the specific mandate of the appellate court. Judge Hall dissented, believing the appellate court’s mandate gave the district court discretion to reduce defendant’s sentence within the guideline range. U.S. v. Nolley, 27 F.3d 80 (4th Cir. 1994).
5th Circuit finds government’s breach of plea agreement warranted resentencing before different judge. (197) Pursuant to a plea agreement, defendant was debriefed by the government and gave immunized statements about his drug conspiracy. The PSR assigned defendant a guideline range based on 18 kilograms of cocaine base. Defendant objected, asserting it was not based on reliable evidence independent of his immunized statements. To support the calculation, the government told both the district court and the probation officer that defendant had admitted dealing 18 kilograms during the immunized debriefing. It further noted that the DEA agents who debriefed defendant would testify that defendant himself admitted the quantities involved in his drug trafficking. It argued that defendant should not be permitted to “perpetrate a fraud upon the Court by denying what he himself admitted.” The Fifth Circuit held that the government’s use of defendant’s immunized statements breached the plea agreement, and remanded the case to a different judge. The government’s direct and repeated use of defendant’s immunized statements to advocate a higher guideline sentencing range was not consistent with any reasonable understanding of defendant’s use immunity agreement. Defendant was not perpetrating a fraud upon the court – he simply objected to the sufficiency, reliability, and independence of the evidence presented in the PSR. U.S. v. Harper, 643 F.3d 135 (5th Cir. 2011).
5th Circuit allows consideration of judicial confession on remand despite mandate rule. (197) Defendant pled guilty to illegal reentry, in violation of 8 U.S.C. § 1326. In his initial appeal, defendant argued that his Texas conviction for delivery of a controlled substance was not an aggravated felony under § 2L2.1(b)(1)(C) because there was no proof that he actually possessed a controlled substance. The government conceded that the proof was insufficient, and the Fifth Circuit vacated and remanded. At resentencing, the district court reapplied the eight-level aggravated felony enhancement, relying on defendant’s judicial confession about the offense. The Fifth Circuit held that the court’s consideration, on remand, of defendant’s judicial confession, did not violate the mandate rule. The government did not concede in the earlier proceeding that only a four-level enhancement was appropriate. The appellate opinion did not limit the ability of either party to present or the district court to consider other evidence. Additionally, the district court found the judicial confession to be reliable, and defendant did not demonstrate that the court’s finding was clearly erroneous. U.S. v. Carales-Villalta, 617 F.3d 342 (5th Cir. 2010).
5th Circuit refuses to apply presumption of vindictiveness to defendant resentenced by different judge. (197) Based on the government’s breach of his plea agreement, defendant successfully appealed his first sentence. On remand, defendant was sentenced by a different judge to a greater sentence than the one he originally received. The higher sentence was based upon the second judge’s independent analysis that defendant was responsible for 27 firearms, instead of the 23 found by the first judge. The Fifth Circuit examined prior caselaw and Supreme Court precedent and concluded that a presumption of vindictiveness did not apply where a different judge of the same court imposed the new sentence. Moreover, there was no evidence that the second judge was reasonably likely to impose a vindictive sentence. Defendant also could not show actual vindictiveness. The record reflected that the second judge carefully considered defendant’s objection to the PSR, and defendant offered no authority requiring the second judge to state his reasons for denying them. U.S. v. Rodriguez, 602 F.3d 346 (5th Cir. 2010).
5th Circuit holds mandate rule did not preclude raising minor role issue at resentencing. (197) Defendants were convicted of engaging in a continuing criminal enterprise (CCE) involving more than 15,000 grams of methamphetamine, and related drug conspiracy charges. The appellate court reversed the convictions of defendants Lewis and Wren on the CCE charge and the leadership enhancements of defendants Griffith and Martin. At resentencing, the district court refused to entertain defendants’ requests for minimal or minor role reductions, finding that the mandate rule precluded them from raising their objections at resentencing. The Fifth Circuit agreed that Griffith’s and Martin’s claim for a minor role reduction were waived by failing to raise it in their initial appeal. The reversal of the leadership enhancement did not “breathe life” into the role reduction questions, because the issues are not mutually exclusive. However, district court erroneously concluded that the mandate rule precluded Lewis and Wren from requesting minor role reductions for their alleged limited participation in the conspiracy. The sentencing court originally ordered no sentence for Lewis and Wren’s conspiracy conviction, because conspiracy is a lesser included offense of CCE. Thus, Lewis and Wren had no reason to argue for a minor role reduction because at the time of their conviction they were not facing a sentence on the conspiracy count. U.S. v. Griffith, 522 F.3d 607 (5th Cir. 2008).
5th Circuit allows upward variance based on factors previously ruled improper for departure. (197) Defendant was convicted of fraud and the district court departed upward to 172 months based on the number of victims and the complexity of the scheme. The appeals court reversed, holding that these factors did not justify an upward departure. On remand, after Booker was decided, the district court relied on 18 U.S.C. 3553(a) factors to “vary” upward to 172 months. Defendant argued that this violated the “law of the case” because the factors the district court relied on were many of the same factors that the appeals court held did not justify an upward departure. The Fifth Circuit held that Booker was an intervening change in the law, justifying an exception to the “law of the case” doctrine. Booker made the Guidelines advisory. This dramatic shift in sentencing law permitted the district court to consider complexity and number of victims in selecting a sentence, even though it had previously ruled that those factors were improper in departing upward. U.S. v. Williams, 517 F.3d 801 (5th Cir. 2008).
5th Circuit holds mandate rule did not preclude raising minor role issue at resentencing. (197) Defendants were convicted of engaging in a continuing criminal enterprise (CCE) involving more than 15,000 grams of methamphetamine, and related drug conspiracy charges. The appellate court reversed the convictions of defendants Lewis and Wren on the CCE charge and the leadership enhancements of defendants Griffith and Martin. At resentencing, the district court refused to entertain defendants’ requests for minimal or minor role reductions, finding that the mandate rule precluded them from raising their objections at resentencing. The Fifth Circuit agreed that Griffith’s and Martin’s claim for a minor role reduction were waived by failing to raise it in their initial appeal. The reversal of the leadership enhancement did not “breathe life” into the role reduction questions, because the issues are not mutually exclusive. However, district court erroneously concluded that the mandate rule precluded Lewis and Wren from requesting minor role reductions for their alleged limited participation in the conspiracy. The sentencing court originally ordered no sentence for Lewis and Wren’s conspiracy conviction, because conspiracy is a lesser included offense of CCE. Thus, Lewis and Wren had no reason to argue for a minor role reduction because at the time of their conviction they were not facing a sentence on the conspiracy count. U.S. v. Griffith, 522 F.3d 607 (5th Cir. 2008).
5th Circuit holds that court could consider all relevant evidence on remand and was not barred by law of the case doctrine. (197) A jury convicted defendant for his participation in a scheme to defraud undocumented aliens. The appellate court remanded for resentencing in accordance with Booker, and the district court imposed the same sentence on remand. The Fifth Circuit held that the district court erred by considering itself bound by the appellate court’s determination of the facts. The prior opinion determined whether a reasonable jury could have found defendant guilty – it did not determine what actually happened. For sentencing, however, a court does not draw every reasonable inference in favor of the government, so the appellate court’s conclusion about the facts being sufficient were not binding at resentencing. The mandate instructed the court to resentence in accordance with Booker. A consideration of defendant’s relevant conduct fell within this mandate, because sentencing under the guidelines requires a consideration of the defendant’s relevant conduct. However, the resentencing did not require the district court to reevaluated its restitution order. Booker did not implicate the restitution statute. U.S. v. Elizondo, 475 F.3d 692 (5th Cir. 2007).
5th Circuit finds no vindictiveness in post-Booker resentencing that exceeded original pre-Booker sentence. (197) Defendant pled guilty to the sexual exploitation of children through the production of child pornography. The district court initially held him accountable for four victims, and imposed a 235-month sentence. After a successful appeal resulted in the elimination of one victim, the district court recalculated his guideline range at 168-210 months, and sentenced defendant to 210 months’. Defendant successfully appealed again, resulting in the elimination of two more victims. However, before defendant was resentenced, the Supreme Court decided U.S. v. Booker, 543 U.S. 220 (2005). The new guideline range, once two more victims were removed, was 121-151 months’. However, the district court sentenced defendant to 235 months’, stressing the “heinous” nature of the crime, defendant’s repeated attempts to contact the victims while incarcerated, and the court’s new discretion under Booker. The Fifth Circuit held that the new sentence was not presumptively vindictive. There is no reason to find vindictiveness in a longer sentence that has its basis in the trial court’s newly expanded sentencing authority. Here, the court believed the longer sentence was the proper one from the start, but its hands were tied by the mandatory nature of the guidelines. The sentence was reasonable. U.S. v. Reinhart, 442 F.3d 857 (8th Cir. 2006).
5th Circuit agrees that mandate rule foreclosed reconsideration of amount of loss. (197) Defendants were convicted of a Medicare fraud scheme. In their first appeal, a Fifth Circuit panel reversed in part the convictions and remanded for resentencing. The panel stated “On all other grounds, we affirm the rulings of the district court, the jury verdict, and the other bases for the sentences imposed by the district court.” At resentencing, the district court reduced the restitution order by the amount attributable to the reversed conviction. Defendants argued that the court erred by relying on the mandate rule in declining to revisit the method of loss calculation. The Fifth Circuit held that the mandate rule foreclosed the court’s reconsideration of the amount of loss, other than the loss attributable to the reversed convictions. The intervening change in law from U.S. v. Booker, 543 U.S. 220 (2005) did not preclude application of the mandate rule. U.S. v. Hamilton, 440 F.3d 693 (5th Cir. 2006).
5th Circuit holds that due process did not bar court on resentencing from imposing sentence greater than authorized by jury verdict. (197) The Supreme Court remanded defendant’s case for further consideration in light of U.S. v. Booker, 543 U.S. 220 (2005). Defendant argued that if the district court, on remand, denied his motion for a new trial, the due process clause barred the district court, on resentencing, from imposing a sentence greater than that authorized by the jury verdict. The Fifth Circuit disagreed. If the district court does not grant a new trial, resentencing should be pursuant to Justice Breyer’s opinion in U.S. v. Booker, 543 U.S. 220 (2005). Defendant and his counsel will be present and have an opportunity to speak under Rule 32(4)(A). the district court may, should it deem it appropriate, reconsider its determinations that defendant was a leader and/or obstructed justice, as well as its drug quantity determinations, and it shall evaluate the ultimate sentencing effect of any and all such determinations under an advisory, non-mandatory guidelines system. U.S. v. Scroggins, 411 F.3d 572 (5th Cir. 2005).
5th Circuit holds that upward criminal history was not foreclosed by mandate. (197) The district court sentenced defendant as a career offender, based on its finding that his prior conviction for Unauthorized Use of a Motor Vehicle (UUMV) constituted a crime of violence. On appeal, the Fifth Circuit vacated his sentence in light of U.S. v. Charles, 301 F.3d 309 (5th Cir. 2002), a recent case which held that simple vehicle theft is not a crime of violence under § 4B1.2(a). The panel directed the district court to resentence defendant “in light of this [court’s] opinion … and our decision in Charles.” On remand, the court concluded that defendant’s UUMV conviction was not a crime of violence. The court departed upward, deciding that defendant’s Criminal History Category of VI (based on his 21 criminal history points) did not adequately reflect the seriousness of his criminal record. The Fifth Circuit held that the upward departure was not foreclosed by the scope of the appellate mandate. Nothing in the mandate required or precluded the court’s consideration on remand of a discretionary upward departure pursuant to § 4A1.3. The upward departure was not an abuse of discretion. Defendant had been afforded considerable leniency over the past 14 years, yet continued to re-offend despite several opportunities to undergo treatment for his drug abuse. U.S. v. Lee, 358 F.3d 315 (5th Cir. 2004).
5th Circuit rules court did not give adequate reason to overcome Pearce presumption of vindictiveness. (197) Defendant successfully appealed his 57-month sentence based on the district court’s failure to afford him an opportunity for allocution. At resentencing, after listening to defendant speak, the same judge found that defendant was inadequately remorseful and resentenced him to 71 months in prison. The Fifth Circuit ruled that the district court did not give an adequate objective reason for the higher sentence to rebut the presumption of vindictiveness that arises when a defendant receives a harsher sentence on resentencing by the same judge who imposed the previous sentence. See North Carolina v. Pearce, 395 U.S. 711(1969), overruled in part on other grounds, Alabama v. Smith, 490 U.S. 794 (1989). The sentencing court’s subjective discrediting of defendant’s somewhat ambiguous statements at allocution was inadequate to rebut the presumption of vindictiveness. Those statements did not constitute either objective information newly acquired by the court or sentence enhancing occurrences post-dating the original sentencing. U.S. v. Resendez-Mendez, 251 F.3d 514 (5th Cir. 2001).
5th Circuit bars defendant from raising issue not raised on initial appeal. (197) The district court overruled defendant’s objections to the PSR, including challenges to drug quantity, and imposed a life sentence under the federal “three strikes” law, 21 U.S.C. § 841(b)(1)(a). On appeal, defendant successfully challenged the application of the three strikes law. At resentencing, the district court refused to revisit drug quantity, ruling that the only issue on remand was to resentence defendant without application of the three strikes law. Defendant argued that because his first appeal was from a life sentence under the three strikes law, the issue of drug quantity was irrelevant and thus he had no incentive to raise it. The Fifth Circuit, relying on U.S. v. Marmolejo, 139 F.3d 528 (5th Cir. 1998), held that defendant was precluded from raising the drug quantity issue on remand because he had the opportunity to raise the issue in his initial appeal, but declined to do so. A district court should only address “issues arising out of the correction of the sentence ordered by [the appellate] court.” Moreover, since defendant raised the issue of drug quantity at his original sentencing, and simply failed to pursue the issue on appeal, he could not claim that the drug quantity issue was irrelevant. A defendant cannot know which appellate argument might be successful; therefore each contested issue must be appealed. U.S. v. Hass, 199 F.3d 749 (5th Cir. 1999).
5th Circuit refuses to reassign case to different judge despite reversing two downward departures. (197) Defendant, a state corrections officer, struck a prisoner several times on the head with his service revolver, knocking the prisoner unconscious. At his first sentencing, the district court departed downward, finding defendant committed a single act of aberrant behavior. A Fifth Circuit panel reversed because the departure was not supported by the record. At resentencing, the district court again departed downward based on defendant’s high susceptibility to abuse in prison and a mandatory consecutive 60-month prison term for a gun charge. The Fifth Circuit again reversed, but rejected the government’s request to reassign the case to a different judge on remand. There was no showing of bias or antagonism toward one party in the case. Although the court twice chose to depart downward, the court did not indicate that it would refuse to impartially weigh evidence or refuse to decide the matters before it objectively. The fact that the appellate court reversed the district court twice did not require reassignment. U.S. v. Winters, 174 F.3d 478 (5th Cir. 1999).
5th Circuit says failure to limit issues on remand did not allow de novo sentencing. (197) Defendant was convicted of drug charges and he appealed. The appellate court affirmed a firearm enhancement, reversed an acceptance of responsibility reduction because defendant denied his guilt and obstructed justice, and found that he was not a minor participant. At resentencing, the district court refused to permit evidence on the question of defendant’s obstruction of justice. The Fifth Circuit held that only those discrete, particular issues identified by the appeals court for remand are properly before the resentencing court. The court rejected the view of a majority of circuits that resentencing hearings following a remand are to be conducted de novo unless expressly limited by the court in its remand order. Such an approach merely gives a defendant a “second bite at the apple.” Here, the district court did not refuse to hear additional evidence on acceptance of responsibility. Rather, it made a finding based on the evidence already in the record and after the benefit of proffered evidence, that an acceptance of responsibility reduction was not appropriate. The obstruction of justice issue was not so intertwined with the acceptance of responsibility issue that the district court could hear evidence on both issues. U.S. v. Marmolejo, 139 F.3d 528 (5th Cir. 1998).
5th Circuit upholds authority under § 2255 to resentence drug count after vacating § 924(c) count. (197) Defendant was originally convicted of drug and firearms counts. He later filed a successful § 2255 petition to vacate the § 924(c)(1) conviction. Following U.S. v. Rodriguez, 114 F.3d 46 (5th Cir. 1997) the Fifth Circuit held that after a § 2255 vacatur of a § 924(c) conviction, the court may impose a § 2D1.1(b)(1) enhancement on the remaining drug count. This does not violate double jeopardy because of the defendant’s lack of a legitimate expectation of finality in the original sentence. Nor does this conflict with the circuit’s en banc decision in U.S. v. Henry, 709 F.3d 298 (5th Cir. 1983). The sentences involved in Henry were separable and did not present a case of intertwined illegality in sentencing. U.S. v. Hernandez, 116 F.3d 725 (5th Cir. 1997).
5th Circuit adopts aggregate approach in deciding whether sentence was increased on remand. (197) Defendant was originally convicted of three counts. The district court sentenced him to five years’ probation on Count I, and 51 months’ concurrent on Counts II and III. The convictions for counts II and III were reversed on appeal. On remand, the district court gave him 40 months on Count I. Defendant claimed he was the victim of vindictive sentencing in violation of North Carolina v. Pearce, 395 U.S. 711 (1969), overruled on other grounds, Alabama v. Smith, 490 U.S. 794 (1989). Pearce provides for a presumption of vindictiveness whenever a judge imposes a more severe sentence after a new trial or on remand. The presumption may be overcome only by objective information in the record justifying the increased sentence. The Fifth Circuit held that in evaluating whether a new sentence is more severe, a court should compare the total original sentence to the total sentence after resentencing. This aggregate package approach reflects the realities faced by district court judges who sentence a defendant on related counts of an indictment. Since defendant’s 40-month sentence on remand was less than his original 51-month sentence, the Pearce presumption did not apply. U.S. v. Campbell, 106 F.3d 64 (5th Cir. 1997).
5th Circuit says increase in sentence after remand does not violate due process. (197) Defendant originally pled guilty to one count of receiving child pornography and was sentenced to 39 months. On appeal, the 5th Circuit vacated the sentence for being inconsistent with the statutory minimum of 60-months. After a superseding indictment, defendant pled guilty to four different charges, and received a 60-month concurrent sentence on each count. Defendant argued that the increase in his sentence after remand chilled his due process right to appeal. The 5th Circuit upheld the increased sentence. Even if a presumption of vindictiveness applied, objective information justifying the increase rebutted the presumption. Consideration of the new convictions was “manifestly legitimate.” In addition, before the second sentencing, the probation officer brought to the court’s attention a four level enhancement applicable to defendant under §2G2.2(b)(3) for material portraying sadism, masochism, or violence. U.S. v. Schmeltzer, 20 F.3d 610 (5th Cir. 1994).
6th Circuit reverses one day in jail plus ten years of supervised release for child porn offense. (197) Defendant pled guilty to possessing 305 images and 56 videos of child pornography on his computer. His recommended guideline range was 63-78 months, but the district court sentenced him to a single night’s confinement, plus ten years of supervised release. On the government’s first appeal, the 6th Circuit reversed the sentence as substantively unreasonable. On remand, the district court imposed the same sentence, and the government appealed again. The Sixth Circuit again reversed the sentence as substantively unreasonable. The district court criticized the computer enhancement, but even without it, defendant’s guideline range would have been about three years. The district court also diminished the seriousness of defendant’s offense, gave little weight to the need to deter others, and gave too much weight to defendant’s age and poor health, neither of which were extraordinary. The case was remanded for resentencing by a different judge. U.S. v. Bistline, 720 F.3d 631 (6th Cir. 2013).
6th Circuit holds higher sentence at resentencing was product of remand order, not vindictiveness. (197) Defendant pled guilty to child pornography charges. At his first sentencing, the parties disputed the applicability of a five-level increase under § 2G2.2(b)(5) for a pattern of activity. Rather than making an explicit ruling on this issue, the court compromised, and then sentenced defendant to 320 months. The Sixth Circuit vacated the 320-month sentence because it was unclear whether it was the result of a downward variance from level 41, or an upward variance from level 36. On remand, the district court applied the § 2G2.2(b)(5) increase, and sentenced defendant to 360 months. The Sixth Circuit rejected defendant’s claim that the district court resentenced him vindictively. The higher sentence on resentencing was a product of the remand order and objective information about defendant’s conduct. The court reexamined its decision and determined that the § 2G2.2(b)(5) increase did apply because defendant’s two child pornography convictions constituted a pattern. It described the other factors that necessitated application of the enhancement – namely, the seriousness of defendant’s conduct and the strong likelihood of recidivism. U.S. v. Johnson, 715 F.3d 179 (6th Cir. 2013).
6th Circuit says remand was general, not limited, so court had authority to impose consecutive sentence. (197) Defendant pled guilty in federal court to robbery and firearms charges, and was sentenced as a career offender to 188 months on the robbery charge, to run concurrently to a 25-year state sentence. The Sixth Circuit reversed, and on remand, the government abandoned its contention that defendant was a career offender. At resentencing, the court sentenced defendant to 77 months, but ordered the sentence to run consecutively to defendant’s 25-year state sentence. The Sixth Circuit held that the remand was general, not limited, and thus on remand the district court could impose a consecutive sentence. Although the appellate court’s prior opinion addressed a single sentencing issue (defendant’s classification as a career offender), this did not automatically mean that the remand was limited. The original judge’s decision to run the robbery count concurrently was not the law of the case, binding on the second judge. A general remand wipes the slate clean. The presumption of vindictiveness did not apply, since the resentencing judge was different from the original sentencing judge. U.S. v. McFalls, 675 F.3d 599 ((6th Cir. 2012).
6th Circuit remands for resentencing in light of Pepper. (197) After the district court sentenced defendant to 120 months, the Sixth Circuit remanded for resentencing under the Armed Career Criminal Act. Defendant then persuaded a Michigan court to amend a 2002 judgment against him to indicate that the maximum sentence was five years, which meant that the Michigan offense no longer qualified as a serious drug offense. At resentencing, the district court resentenced defendant to the same 120-month sentence. Defendant argued that the district court erred by not considering amendments to the Guidelines adopted after his original sentencing. The Sixth Circuit ruled that the district court properly applied the May 2007 Guidelines in effect at the time of defendant’s original sentencing. However, the panel vacated defendant’s sentence and remanded for resentencing in light of the Supreme Court’s recent decision in Pepper v. U.S., 131 S.Ct. 1229 (2011). Although Pepper did not affect which version of the Guidelines to apply at resentencing, it was relevant to whether the district court had discretion under § 3553(a) to consider post-sentencing amendments to the guidelines. U.S. v. Taylor, 648 F.3d 417 (6th Cir. 2011).
6th Circuit says plenary resentencing not required where there was no sentencing to be done. (197) Defendant was convicted of drug and firearms charges. On appeal, the Sixth Circuit reversed defendant’s conviction and sentence for violating 18 U.S.C. § 924(c)(1). However, it affirmed defendant’s other convictions and the 30-year sentence he received for those counts. On remand, the government agreed not to pursue the § 924(c) charge. The district court vacated the sentence for that count by written order without allowing defendant to personally appear or re-allocute. The Sixth Circuit rejected defendant’s argument that the district court erred by not conducting a plenary resentencing hearing. Its initial opinion limited the district court to considering only defendant’s § 924(c) charge, which the government declined to pursue. Therefore, there was no sentencing to be done. The remand order did not permit the district court to resentence defendant on his underlying drug convictions. A de novo resentencing was not required, and defendant was not required to be present and have the opportunity to allocute. U.S. v. Hunter, 646 F.3d 372 (6th Cir. 2011).
6th Circuit holds that defendant had right to be present and allocute at resentencing. (197) In a previous opinion, the Sixth Circuit vacated defendant’s sentence as procedurally unreasonable and remanded for resentencing in a general remand order. On remand, over defendant’s objections, the district court resentenced defendant to the same sentence without holding a resentencing hearing. Defendant claimed that his sentencing was procedurally unreasonable because he was denied his right to be present and allocute. The Sixth Circuit agreed, holding that upon a general remand, when a sentence has been vacated on direct appeal, the defendant is entitled to a resentencing hearing at which he may present and allocute. Further, when a plenary resentencing hearing is held, the district court is required to state its reasons for the sentence “in open court.” Every circuit court to address the issue has agreed with this holding. U.S. v. Garcia-Robles, 640 F.3d 159 (6th Cir. 2011).
6th Circuit holds that court gave inadequate explanation for re-imposing same term of supervised release. (197) Defendant was convicted of tax fraud, and originally sentenced to 21 months of imprisonment plus one year of supervised release. The Supreme Court remanded the case for resentencing in light of Booker. The district court reimposed the same sentence. However, defendant had completed his 21-month sentence long before he was resentenced. The term of supervised release was still pending, however, because defendant was serving another sentence on a separate conviction. Defendant argued that the court should reconsider the term of supervised release because the district court allegedly treated that portion of the sentence as mandatory. The Sixth Circuit agreed with defendant that the supervised-release term was summarily imposed without an adequate explanation. The problem was not the court’s failure to repeat its §3553(a) analysis with respect to the supervised-release term. Rather, the procedural error stemmed from the court’s failure to recognize that defendant’s completion of his custodial sentence rendered that portion moot at resentencing. U.S. v. O’Georgia, 569 F.3d 281 (6th Cir. 2009).
6th Circuit says general remand permitted de novo sentencing. (197) The district court sentenced defendant to 300 months based in part on an obstruction of justice enhancement for defendant’s false statement to police. The appellate court reversed and remanded, holding that the record did not support the obstruction increase. On remand, the sentencing judge reimposed the 300-month sentence, again finding that defendant obstructed the investigation. The Sixth Circuit held that the appellate court had issued a general remand, not a limited remand, and therefore the sentencing court acted within its authority to correct the evidentiary record and revisit the issue of obstruction. The appellate court stated that because the district court considered an improperly calculated guideline range, “the defendant’s sentence is vacated and the case remanded to district court for resentencing.” This language did not outline the procedure that the district court was to follow nor did it articulate the chain of events with particularity. It did not confine the district court to sentence within the lower range of 210-262 months. U.S. v. Obi, 542 F.3d 148 (6th Cir. 2008).
6th Circuit holds that after Booker remand, court properly calculated loss at time of original sentencing. (197) Defendant pled guilty to bank fraud charges and was sentenced to 360 months, but the case was remanded for resentencing in light of Booker. On remand, the sentencing judge froze the record as to the loss incurred by the lenders as of the time of defendant’s original sentencing. The Sixth Circuit held that the district court did not err in relying on original record. In U.S. v. Worley, 453 F.3d 706 (6th Cir. 2006), abrogation recognized by U.S. v. Gapinski, 422 Fed. Appx. 513 (6th Cir. 2011) (unpublished), No. 09-2267, the court made clear that facts that occur after the original sentencing are irrelevant to a resentencing court. U.S. v. Erpenbeck, 532 F.3d 423 (6th Cir. 2008).
6th Circuit holds that court erred at resentencing in considering post-sentencing conduct. (197) Following the Supreme Court’s decision in Booker, defendant’s sentence was vacated and his case remanded for resentencing. On remand, the court varied downward substantially from the guidelines’ minimum, citing defendant’s youth and impressionability at the time of the offense, his deep remorse, and his activities since his original sentencing. The Sixth Circuit held that the district court erred in considering defendant’s post-sentencing conduct as a ground for a downward variance. Because the purpose of the Booker remand is to ensure that the defendant’s sentence is consistent with the Sixth Amendment, a district court may consider only those facts that existed at the time the defendant was first sentenced. See U.S. v. Worley, 453 F.3d 706 (6th Cir. 2006), abrogation recognized by U.S. v. Gapinski, 422 Fed. Appx. 513 (6th Cir. 2011) (unpublished), No. 09-2267. Moreover, even if there were cases in which consideration of post-sentencing factors is justified, this was not one of them. Defendant’s clean post-conviction record, includeing his good behavior while incarcerated, and his stewardship of a family business were commendable, but they were not the kind of unusual circumstances that were deserving of consideration on a Booker remand. U.S. v. Keller, 498 F.3d 316 (6th Cir. 2007).
6th Circuit says court lacked authority on limited remand to review sentence under new amendment. (197) On defendant’s first appeal, the court remanded for resentencing to determine the amount of laundered funds for which defendant should be held accountable. The Sixth Circuit held that the district court was correct in applying the guidelines in effect at the time of defendant’s original sentencing, rather than the version in effect at resentencing. The remand was limited to determining the amount of laundered money for which defendant was accountable. Thus, the court lacked the authority to review defendant’s sentence de novo under the amended version of § 2S1.1. No ex post facto issues were raised by this approach. Moreover, the recent enactment of 18 U.S.C. § 3742(g), in 2003, has clarified that the correct approach for a court to take on remand is to apply the guidelines in effect at the time of a defendant’s original sentencing. U.S. v. Orlando, 363 F.3d 596 (6th Cir. 2004).
6th Circuit holds that court had authority on resentencing to reach challenge to previously affirmed cross-reference. (197) Defendant was convicted of drug and firearms charges. At sentencing, the district court found that he had used the firearm in connection with an attempt to commit another offense, murder, and following § 2K2.1(c)(1)(A) and § 2X1.1(c), used the offense level for attempted murder under § 2A2.1(a)(1). On appeal, the Sixth Circuit upheld the use of the cross-reference but remanded because of an error in determining the extent of the victim’s injuries for enhancement purposes. The court remanded “for resentencing consistent with this opinion.” On remand, defendant raised an Apprendi challenge to the use of the cross-reference, which the court rejected. On appeal, the government argued that the limited remand on defendant’s first appeal did not authorize the court to do anything but apply the corrected enhancement based on the victim’s injuries. The Sixth Circuit found that based on the general language of the remand, the district court had authority to review defendant’s Apprendi claim. Therefore, the appellate court had the authority to review the argument as well. U.S. v. Helton, 349 F.3d 295 (6th Cir. 2003).
6th Circuit holds that mandate was limited and barred defendant from raising new claims at resentencing. (197) In defendant’s previous appeal, the Sixth Circuit held that application of the safety valve was improper and that the mandatory minimum provisions of 21 U.S.C. § 841(b)(1)(b) applied to defendant. U.S. v. O’Dell, 247 F.3d 655 (6th Cir. 2001). The court remanded for resentencing without application of the safety valve. On the day of sentencing, defendant filed a new motion arguing that a mandatory minimum sentence would violate his 5th and 8th Amendment rights. The Sixth Circuit held that the previous remand was limited, and therefore defendant was precluded from making his previously unasserted 5th and 8th Amendment arguments on remand. The appellate court here specifically instructed the court to “resentenc[e] without application of the safety valve.” In addition, a key circumstantial factor indicated that the mandate was limited. The government had not only argued that the court should have imposed a five-year sentence, it also argued alternatively that a sentence below 24-months was error. The appellate court found it unnecessary to address this latter contention. If the court had intended a general remand and de novo sentencing, it would have made sense to address the government’s alternative argument. U.S. v. O’Dell, 320 F.3d 674 (6th Cir. 2003).
6th Circuit says limited remand did not require same departure or bar court from determining acts underlying RICO conspiracy. (197) Defendant argued that the Sixth Circuit’s limited remand barred the government from arguing at resentencing that various criminal acts constituted acts underlying his RICO conspiracy. He also contended that the district court should have departed downward, as it did at the first sentencing hearing, based on his and his wife’s health. The Sixth Circuit held that the remand did not limit the court’s ability to hear the government arguments regarding the acts underlying defendant’s RICO conspiracy, or bar it from refusing to depart downward. The limitations imposed in the prior opinion did not involve either the court’s assessment of underlying racketeering activity or the court’s assessment of appropriate bases for downward departure. In regard to the RICO conspiracy, the court stated that “[w]e instruct the district court to determine which underlying offenses may properly be attributable to [defendant] for purposes of sentencing.” U.S. v. Tocco, 200 F.3d 401, 430-431 (6th Cir. 2000). In addition, the panel instructed the court “to reconsider its decision to depart from the guideline range once that range has been redetermined.” Id. at 432. Thus, the court’s refusal to depart at resentencing was not outside the scope of the limited remand. U.S. v. Tocco, 306 F.3d 279 (6th Cir. 2002).
6th Circuit says law of the case from prior forfeiture bound court to find activities were relevant conduct. (197) Defendant was convicted of two counts of conspiring to engage in racketeering activity. The district court did not include as relevant conduct various activities related to the operation of the Edgewater Hotel and Casino. The Sixth Circuit held that under the law of the case doctrine, the district court was bound to consider the Edgewater Hotel activities. The government’s forfeiture actions was based on defendant’s and his co-conspirator’s RICO convictions, and this court previously held that “the criminal forfeitures sought in this case constitute a part of the defendants’ sentences.” The court was bound in this appeal by the holdings it made both in defendant’s previous direct appeal and in the appeal involving defendant’s and his co-defendants’ forfeiture. Because the appellate court previously held that the district court clearly erred in denying forfeiture against defendant for the Edgewater Hotel activities, the district court also clearly erred in concluding that the Edgewater Hotel activities were not reasonably foreseeable acts in furtherance of the RICO conspiracy. U.S. v. Tocco, 306 F.3d 279 (6th Cir. 2002).
6th Circuit finds no vindictiveness in reimposition of same sentence on remand. (197) The district court originally denied defendant an acceptance of responsibility reduction based on his continued criminal conduct, relying primarily on a July 1998 arrest. The Sixth Circuit remanded based on U.S. v. Jeter, 191 F.3d 637 (6th Cir. 1999), which held that the relevant time period for acceptance of responsibility does not begin until federal authorities indict the defendant and he becomes aware that he is subject to federal investigation and prosecution. At resentencing, the court reimposed the original sentence, again denying an acceptance of responsibility reduction. The court recognized that under Jeter, the denial could not be based on defendant’s July 1998 arrest because defendant had not yet been indicted on the federal charge. However, it found that defendant’s positive drug test during his pre-trial release was sufficient to deny the reduction. The Sixth Circuit held that the district court did not err in denying the acceptance reduction based on the positive drug test, a fact known to the court at the time of the original sentencing, but upon which the court did not originally rely. The reimposition of the original sentence after remand is not an increased sentence triggering the Pearce presumption of vindictiveness. Defendant did not allege any facts showing actual vindictiveness. U.S. v. Rodgers, 278 F.3d 599 (6th Cir. 2002).
6th Circuit says failure to obtain updated PSR prior to resentencing was not plain error. (197) Defendant argued that the district court erred by failing to obtain an updated PSR prior to his resentencing. Because defendant failed to raise this objection at the resentencing hearing, the standard of review was plain error. Defendant did not demonstrate how he was prejudiced by the use of the old PSR at the resentencing. He did not offer any material evidence that would show that an updated report would have any effect on the resentencing. Thus, the Sixth Circuit held that the court’s failure to obtain an updated PSR was not plain error. U.S. v. Schulte, 264 F.3d 656 (6th Cir. 2001).
6th Circuit holds that court properly limited scope of resentencing. (197) Defendant was initially sentenced to a 200-month prison term. He appealed, and the case was remanded for resentencing because of a drug quantity issue. After an evidentiary hearing, the district court imposed an identical sentence, and the second appeal was unsuccessful. Defendant then petitioned the court under 28 U.S.C. § 2255, and the petition was denied. Finally, defendant moved to alter or amend the judgment. The motion was partially granted, and the term of imprisonment was reduced to 180 months. In granting the reduction, the district court rejected defendant’s request for a downward departure based on his post-offense rehabilitation, and to recalculate his range under the edition of the guidelines in effect at the time of resentencing. Defendant appealed these decisions. The Sixth Circuit found it unnecessary to address the merits of his contentions, since the court granted resentencing on narrow grounds, and only on those grounds. When a district court orders a resentencing, the court has the power to determine the appropriate scope of the resentencing. See U.S. v. Rudolph, 190 F.3d 720 (6th Cir. 1999). Here, the district court’s decision to limit the scope of the resentencing was within its discretion. Thus, the court’s refusal to consider further relief did not warrant reversal. U.S. v. Bryant, 246 F.3d 650 (6th Cir. 2001).
6th Circuit says mandate was limited to acceptance of responsibility at time of original sentencing. (197) On defendant’s initial appeal, the 6th Circuit remanded for specific factual findings to support the district court’s denial of an acceptance of responsibility reduction, as required by Rule 32(c). Upon remand, the court again denied the reduction, noting that while defendant may have accepted responsibility at the time of the resentencing, he had not accepted responsibility at the time of his original sentencing. The court cited his evasiveness, improbable explanations for his conduct and his general state of denial about the offenses at the time of his original sentencing. Defendant argued that the district court improperly refused to grant a reduction based on his post-sentencing acceptance of responsibility. The Sixth Circuit found that the district court reasonably interpreted its mandate as requiring a new sentence only if it had previously based its denial of the acceptance reduction on impermissible grounds. Because the scope of the mandate was limited to the determination of defendant’s acceptance of responsibility at the time of initial sentencing, the district court did not err in denying the acceptance reduction at resentencing. U.S. v. Cook, 238 F.3d 786 (6th Cir. 2001).
6th Circuit holds that resentencing court should address objections to new PSR. (197) Defendant did not object when his first PSR held him responsible for between 5 and 15 kilograms of cocaine. The court later vacated one of his convictions and his sentence on unrelated grounds. The court ordered resentencing and directed the probation department to create a new PSR. The second PSR attributed between 5 and 15 kilograms of cocaine to defendant, but also listed the drugs involved in the overt acts charged in the indictment. Defendant objected. At resentencing, the district court refused to address the drug quantity issue. The Sixth Circuit held that the district court erred in failing to consider defendant’s drug quantity challenge. On remand following a direct appeal, a district court can consider de novo any argument regarding sentencing if the remand order does not limit its review. Although the resentencing here arose from a successful § 2255 motion, the same concerns applied. In the present case, the district court ordered the preparation of a new PSR without limitation, and the new report set forth a statement regarding the amount of drugs that differed from the original PSR. District courts should address any objections that a defendant might have to a “new” report that contains materially different information than the first PSR, even if those objections come during resentencing. U.S. v. Saikaly, 207 F.3d 363 (6th Cir. 2000).
6th Circuit approves post-sentence rehabilitation as ground for downward departure. (197) Agreeing with the Second, Third, Ninth and D.C. Circuits, and disagreeing with the Eighth Circuit, the Sixth Circuit held that a district court has the discretion to depart based on a defendant’s rehabilitation occurring after the imposition of sentence. The rehabilitation must far exceed that required for a § 3E1.1 acceptance reduction, and must seem extraordinary or exceptional when compared to the rehabilitation of other defendants. A court may not depart for a defendant’s efforts at rehabilitation. If the district court resentences the defendant on remand from the appellate court, the remand order determines the scope of the proceedings. Thus, a limited remand order will preclude consideration of requests for downward departure. If the district court resentences the defendant after granting a § 2255 motion, the district court must exercise its discretion and decide whether it will consider a motion for downward departure based on post-sentence rehabilitation. In the present case, defendant did not proffer evidence that would justify a departure. Defendant’s receipt of several poetry awards was insufficient, since his literary prowess had no bearing on rehabilitation. His work record and GED were also insufficient, since the BOP requires able inmates to labor and requires unschooled inmates to take classes. U.S. v. Rudolph, 190 F.3d 720 (6th Cir. 1999).
6th Circuit says higher sentence on remand gave rise to Pearce presumption of vindictiveness. (197) The district court originally sentenced defendant to 262 months, the low end of his 262-327 month guideline range. After a successful appeal by defendant, the district court found that it had failed to consider a particular conviction in defendant’s criminal history. At the same time, the court held defendant responsible for a significantly lesser quantity of drugs. This resulted in a guideline range of 235-293 months. The district court resentenced defendant to 292 months, at the high end of the new range. The Sixth Circuit held that since the same judge was involved, these facts gave rise to a presumption of vindictiveness under North Carolina v. Pearce, 395 U.S. 711 (1969). Due process required the court to give “objective reasons” for imposing a higher sentence on remand than the one it originally imposed. While the factors cited by the court here were objective (long involvement in drug trafficking, large quantity of drugs involved, wide range of conspiracy, refusal to accept responsibility, and scofflaw attitude), they did not adequately explain the need to increase defendant’s sentence. All of the information cited by the court was before it at the first sentencing. U.S. v. Jackson, 181 F.3d 740 (6th Cir. 1999).
6th Circuit says court was free to make criminal history departure on remand. (197) A jury convicted defendant of conspiracy and armed bank robbery. In U.S. v. Bond, 22 F.3d 662 (6th Cir. 1994), the Sixth Circuit vacated his sentence. At resentencing, the district court departed upward from criminal history category III to V. The Sixth Circuit held that because the remand order did not restrict the district court from reassessing its determination of defendant’s criminal history, the court was free to depart based on any legitimate factors, provided its motivation was not vindictive. The departure here was not an abuse of discretion. The district court’s opinion closely adhered to the parameters of the appellate court’s remand order. The district court properly considered, and then rejected, the next higher criminal history category before sentencing defendant as a category V offender. The court took pains to provide detailed reasons for its decision that closely tracked the policy underlying § 4A1.3. Judge Merritt dissented, because he did not believe it was fair to increase defendant’s criminal history at resentencing when there had been no intervening conduct since the initial sentencing to warrant a change in his category. U.S. v. Bond, 171 F.3d 1047 (6th Cir. 1999).
6th Circuit says limited remand prevented judge from considering guideline amendment. (197) Two years after defendant’s conviction and sentence were affirmed on appeal, the district court, at the suggestion of the warden of defendant’s prison and the probation office, declared defendant’s $100,000 fine due and payable immediately. Because the fine was calculated with erroneous information that defendant possessed certain valuable assets, the 6th Circuit remanded for a hearing on defendant’s available assets. On remand, defendant sought to expand the scope of resentencing under an amendment to § 1B1.3 that allegedly altered the calculation of drug quantity. The Sixth Circuit ruled that the scope of the remand prevented the district court from considering any issues other than the proper assessment of the fine. The appellate panel based its remand decision on a discrete issue that had produced an unjust result. The court outlined in detail the intended scope of the district court’s inquiry, limiting its scope to the “forfeiture of real estate and the validity of the district court’s determination of [defendant’s] financial ability at the original sentencing hearing.” The remand articulated with particularity the scope of the district court’s task. U.S. v. Campbell, 168 F.3d 263 (6th Cir. 1999).
6th Circuit holds that 1992 “reasonably foreseeable” amendment not a change in the law. (197) The appellate court remanded defendant’s case to the district court for the limited purpose of reassessing defendant’s fine. Defendant argued that a change in the law authorized and obligated the district judge to consider the new law at resentencing. Amendment 439 revised § 1B1.3 in 1992 to provide that a defendant will only be held accountable for the conduct of others when the conduct was reasonably foreseeable to the defendant. The Sixth Circuit held that Amendment 439 was merely a clarification of existing law rather than a change in any underlying principles. Although not originally part of the guidelines itself, this standard was set forth in the application notes as early as 1989, in note 1 to § 1B1.3. Thus, the “reasonably foreseeable” standard was recognized by this circuit in cases before defendant’s sentencing. The language defendant relied on was simply transferred from the commentary to the actual text of the guideline. Thus, it did not represent a change in the law at all. If defendant thought that the district judge misapplied the guidelines, he should have raised this in his initial appeal. U.S. v. Campbell, 168 F.3d 263 (6th Cir. 1999).
6th Circuit says no evidentiary hearing needed on admissibility of polygraph test. (197) At his original sentencing hearing, the district court held defendant accountable for a 1000-pound shipment of marijuana. The Sixth Circuit affirmed this on appeal but remanded on other grounds. Before resentencing, defendant took a private, ex parte polygraph examination concerning his role in the 1000-pound marijuana shipment. The Sixth Circuit upheld the district court’s refusal to hold an evidentiary hearing on the admissibility of the polygraph test. Defendant took a private polygraph test administered by an examiner hired by his family, and did not inform the government of the test results until after he had taken the exam. The government had no way of determining whether this was the first polygraph exam administered to defendant. Even though the results indicated that defendant was truthful answering questions about his involvement in the shipment, the government was unable to assist in the formulation of these questions or counter with questions about what defendant did do in terms of drug trafficking. The test was even more dubious because it was given more than three years after the events in question. U.S. v. Thomas, 167 F.3d 299 (6th Cir. 1999).
6th Circuit upholds refusal to hold evidentiary hearing at resentencing. (197) At his original sentencing, the district court held defendant responsible for a 1000-pound shipment of marijuana. On appeal, a Sixth Circuit panel sustained the trial court’s finding that defendant was responsible for the 1000-pound shipment but remanded on other grounds. Before resentencing, defendant filed a motion for an evidentiary hearing claiming the court had erroneously determined that he was responsible for the 1000-pound marijuana shipment. The district court found that it was bound by the law of the case doctrine. Even if it were not so bound, the court ruled a hearing was unnecessary under principles of judicial economy because it had already ruled that the 1000-pound shipment could properly be considered. The Sixth Circuit upheld the district court’s refusal to hold an evidentiary hearing on the drug quantity issue. Defendant did not present any new evidence to the district court, insisting only that the court had made erroneous findings in his case. Disturbing findings from earlier litigation requires more than a litigant’s assertion that the previous findings were “just wrong.” U.S. v. Thomas, 167 F.3d 299 (6th Cir. 1999).
6th Circuit vacates resentencing on drug count as beyond scope of remand on gun count. (197) Defendant was convicted of drug and firearms charges. While his appeal was pending, the Supreme Court decided Bailey v. U.S., 116 S.Ct. 501 (1995). On rehearing, the Sixth Circuit vacated his conviction for using or carrying a firearm in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c), and remanded to determine whether there was sufficient evidence to support it. On remand, the court granted the government’s motion to dismiss the § 924(c) conviction, but added two levels to the drug sentence under § 2D1.1(b)(1) for possession of firearms during the drug crime. The Sixth Circuit held that resentencing on the drug count after vacating the § 924(c) conviction was beyond the scope of the limited remand. A limited remand constrains the district court’s resentencing authority to the issue or issues remanded. Here, the remand was specifically limited to determining the sufficiency of the evidence for the § 924(c) conviction. The district court exceeded the scope of this remand order. Judge Merritt dissented. U.S. v. Moore, 131 F.3d 595 (6th Cir. 1997).
6th Circuit upholds authority under § 2255 to resentence on remaining drug count. (197) The district court granted defendant’s § 2255 petition and vacated his conviction for using or carrying a firearm in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c). However, it then added two levels to his sentence on the drug count, under guideline § 2D1.1(b) (1). The Sixth Circuit affirmed, upholding the district court’s authority under § 2255 to resentence defendant on the unchallenged conviction after vacating the § 924(c) count. Every circuit that has considered this issue has agreed with this holding. At the original sentencing, the § 924(c) conviction precluded the court from applying the § 2D1.1(b)(1) enhancement. Resentencing simply put defendant in the same position he would have occupied if he had never been convicted of the § 924(c) count. Even though he had already served the portion of his sentence allocated to the drug charge, he lost any expectation of finality when he challenged one of two interrelated convictions and placed the validity of his entire sentence at issue. U.S. v. Pasquarille, 130 F.3d 1220 (6th Cir. 1997).
6th Circuit finds no right of allocution at resentencing. (197) The Sixth Circuit held that there is no constitutional right to allocution at sentencing, and the defendant’s right to speak under Rule 32(c)(3)(C) applies to the original sentence and not to the subsequent resentencing. Accordingly, defendant had no right of allocution when the court resentenced him on the drug count after vacating his conviction for using and carrying a firearm in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c). U.S. v. Pasquarille, 130 F.3d 1220 (6th Cir. 1997).
6th Circuit remands to consider applying marijuana amendment retroactively. (197) Defendant was originally convicted of manufacturing marijuana. In 1995, an appellate court reversed the conviction on double jeopardy grounds, but in 1996 the Supreme Court reversed this ruling. While the case was pending before the Supreme Court, the Sentencing Commission amended § 2D1.1(c) to treat each marijuana plant as weighing 100 grams, regardless of the total number of plants involved. On rehearing to consider defendant’s remaining claims, the Sixth Circuit remanded for the district court to consider whether to apply the marijuana amendment retroactively. A defendant is entitled to file a motion under 18 U.S.C. § 3582(c)(2) seeking a reduction in his sentence. A district court has the discretion to apply the amendment retroactively. The court can also deny the § 3582(c)(2) motion, even if the retroactive amendment has lowered the guideline range. U.S. v. Ursery, 109 F.3d 1129 (6th Cir. 1997).
6th Circuit says resentencing is de novo where remand is not limited. (197) At defendant’s original sentencing, defense counsel did not challenge the inclusion of relevant conduct because it did not increase defendant’s base offense level. However, on defendant’s first appeal, the appellate court found that drug quantity had been incorrectly calculated. At resentencing, defendant attempted to raise the relevant conduct issue, since the issue now raised his offense level from 24 to 28. The district court held that the objections were outside the scope of the remand. The Sixth Circuit disagreed, holding that where the remand does not limit the district court’s review, sentencing is to be de novo. The only constraint under which a district court must operate on remand is the remand order itself. Since there was no limit here, the district court erred n refusing to consider defendant’s objection to the relevant conduct section of his PSR. U.S. v. Jennings, 83 F.3d 145 (6th Cir. 1996).
6th Circuit says defendant who wins appeal risks having error corrected in government’s favor. (197) Defendant was convicted of firearms charges. On appeal, the Sixth Circuit found an inadequate factual basis for the departure to 36 months, and reversed. On remand, the district court found it had erroneously computed defendant’s base offense level. It corrected the error by finding that defendant used the firearm in connection with a drug offense, and imposing a 41-month sentence. In this second appeal, the Sixth Circuit held that the enhanced sentence was not a result of vindictiveness and thus did not violate due process. The appellate court’s earlier opinion left room for the district court to revisit the entire sentencing procedure on remand. A defendant who appeals takes the risk that an error may be corrected against the defendant’s favor. This must be anticipated when the decision to appeal is made. U.S. v. Duso, 42 F.3d 365 (6th Cir. 1994).
6th Circuit says court was permitted on remand to reconsider loss attributable to defendant. (197) Defendant pled guilty to wire fraud. The district court originally determined that both the actual and intended loss from the offense of conviction was zero. However, after the case was remanded, the court stated that it had made a mistake, and the intended loss was actually $1.7 million. The 6th Circuit upheld the district court’s authority to reconsider the loss issue. The appellate court did not expressly or impliedly decide the loss issue or even affirm the court’s finding that no loss resulted from the offense of conviction. The appellate court found only that the district court incorrectly considered the amount of loss from conduct outside the offense of conviction. The district court also did not violate the mandate rule. The appellate court’s mandate did not prohibit the district court from reconsidering the loss issue and reversing its earlier decision. U.S. v. Moored, 38 F.3d 1419 (6th Cir. 1994).
7th Circuit upholds resentencing after Dorsey remand. (197) In October 2011, defendant was sentenced on crack charges to 262 months. The appellate court remanded for resentencing under the Fair Sentencing Act in accordance with Dorsey v. U.S., 132 S.Ct. 2321 (2012). The court resentenced defendant to 170 months, varying downward from his new advisory range of 188-325 months. Defendant argued on appeal that the court erred when it failed to consider his two principal arguments in mitigation. The government countered that defendant’s mitigation arguments were not properly before the district court because he failed to present them at either his initial sentencing or during the first appeal, and that they were beyond the scope of the remand. The Seventh Circuit upheld the new sentence. First, the district court did not exceed scope of remand. The only issue conclusively decided in the first appeal was the applicability of the FSA, so nothing in the first ruling precluded the district court from considering other issues in its discretion. However, the panel rejected defendant’s arguments on the merits. The court more than adequately addressed the career offender guideline issue and the need for incremental punishment. U.S. v. Whitlow, 740 F.3d 433 (7th Cir. 2014).
7th Circuit finds government waived increase by failing to raise issue before remand. (197) Defendant contested the sentence he received following a prior, successful appeal challenging his treatment as a career offender. He contended that the district court on remand substantially enhanced his offense level based on a ground that the government had waived by not raising it sooner. The Seventh Circuit agreed and remanded. On remand, the district court accepted the government’s argument, not raised previously, that defendant was an accessory after the fact to a murder committed by a fellow gang member. However, nothing prevented the government from raising the accessory-after-the-fact enhancement at the time of defendant’s first sentencing. His connection with the gun used to murder the rival gang member was known at that time, and the relevant facts were recited in defendant’s plea agreement. The government contended there was no need to raise the accessory guideline at the time of the original sentencing, because defendant’s career offender status made the other enhancements irrelevant. However, it was not a foregone conclusion that the court would find that defendant was a career offender. In short, there was no legitimate reason for the government to ignore the accessory-after-the-fact guideline at the time of defendant’s first sentencing, and its failure to do so resulted in a waiver of its arguments as to that guideline. U.S. v. Tello, 687 F.3d 785 (7th Cir. 2012).
7th Circuit affirms refusal to allow defendant to raise new arguments on general remand. (197) Defendants were convicted of drug conspiracy charges. On appeal, the court ruled that the district court erred in determining drug quantity, and remanded. On remand, the district court dismissed as waived several new arguments that defendants raised in their post-remand sentencing briefs. Defendants argued that, in light of the Supreme Court’s recent decision in Pepper v. U.S., 131 S.Ct. 1229 (2011), the district court should have entertained new arguments when it resentenced them. The Seventh Circuit held that on a general remand, the district court may entertain new arguments as necessary to effectuate its sentencing intent, but it is not obligated to consider any new evidence or arguments beyond that relevant to the issues raised in the original appeal. Thus, the district court did not err here by refusing to consider defendants’ arguments that were beyond the scope of the remand. U.S. v. Barnes, 660 F.3d 1000 (7th Cir. 2011).
7th Circuit finds defendant not entitled to new crack quantity determination at resentencing. (197) Defendant was convicted of crack cocaine offenses, and was sentenced to life in prison. On appeal the appellate court remanded to allow the district court to take into account the Supreme Court’s decision in Kimbrough v. U.S., 552 U.S. 85 (2007). On remand, the court again imposed a life sentence. Defendant argued that the scope of the remand entitled him to relitigate the drug quantities attributed to him, but the Seventh Circuit disagreed. In the first appeal, defendant’s only reference to the drug-quantity calculation was a cursory three-sentence argument at the end of his brief. The panel remanded to consider only one issue: the disparity between crack and powder cocaine in the Guidelines. Thus, the court implicitly limited the question on remand to whether the court would have imposed a different sentence in light of Kimbrough. U.S. v. Johnson, 635 F.3d 983 (7th Cir. 2011).
7th Circuit finds court acted within scope of remand by correcting drug quantity error. (197) Defendant was convicted of drug conspiracy charges, and sentenced to 396 months. His PSR omitted some of the drugs that, according to the trial testimony, defendant supplied to the conspirators. With these omissions, the report attributed drugs with a marijuana equivalency of 24,234 kilograms, and which the court found resulted in a base offense level of 38. However, the correct base offense level for 24,234 kilograms of marijuana was actually 36. The Seventh Circuit remanded, and at resentencing, the government provided an addendum to the PSR that included the missing drug quantities. The new drug quantities resulted in more than 100,000 kilograms of marijuana, which generated a base offense level of 38. The judge sentenced defendant to a reduced sentence of 365 months. The Seventh Circuit held that the district court acted within the scope of the remand order in correcting the drug quantity error that favored defendant. The remand order did not limit the resentencing to the drug quantity listed in the initial PSR. The panel instructed the court to sentence defendant based on “the amount of drugs [he] distributed.” Using only evidence from the original trial proceedings, the district court did precisely that. U.S. v. Avila, 634 F.3d 958 (7th Cir. 2011).
7th Circuit upholds use of evidence of defendant’s uncharged violent conduct presented for the first time at resentencing. (197) Defendant was convicted of felon in possession charges, and was originally sentenced to 120 months’ imprisonment. However, the U.S. successfully argued on appeal that he should have been sentenced under the Armed Career Criminal Act, 18 U.S.C. § 924(e). His new guideline range on remand was 235-293 months. The government produced evidence for the first time at resentencing showing that defendant was exceptionally violent. The district court imposed a 360-month sentence, 67 months above the advisory guideline range. Defendant argued that the government’s request for an “upward departure” was the product of vindictiveness, noting that it did not present evidence about his history with pipe bombs and other violence at his first sentencing. The Seventh Circuit found no error during the resentencing proceeding. The prosecutor made it abundantly clear throughout the litigation that it intended to seek as lengthy a sentence as was legally possible. In addition, there was no evidence that the use of the uncharged conduct at the resentencing breached any promise made by the prosecutor. U.S. v. Vitrano, 495 F.3d 387 (7th Cir. 2007).
7th Circuit holds that intervening case law making form of proof offered at original hearing unacceptable justified admission of additional evidence on remand. (197) Defendant was convicted of being a felon in possession of a firearm. At his initial sentencing, the government introduced an affidavit attached to an information to demonstrate that his prior conviction for criminal confinement was for a crime of violence under § 2K2.1. After that hearing, the Supreme Court decided Shepard v.U.S., 544 U.S. 13 (2005), which made it clear such an affidavit was not an acceptable way of showing that a conviction constituted a crime of violence. At resentencing on remand, the government introduced instead the plea colloquy transcript from defendant’s criminal confinement matter. The Seventh Circuit affirmed. In the past it had been hesitant to allow the government, the party with the burden of proof on a sentencing enhancement, a second opportunity to present evidence in support of an enhancement. However, the panel agreed that intervening case law, which made the form of proof the government had previously offered unacceptable, justified the admission of additional evidence on remand. U.S. v. Hagenow, 487 F.3d 539 (7th Cir. 2007).
7th Circuit finds no abuse of discretion in failure to resentence de novo after sentences vacated on appeal. (197) In defendants’ initial appeal of their sentences on drug-trafficking convictions, the Seventh Circuit held that Apprendi error occurred at trial because the jury had not been asked to determine the quantity of drugs involved in defendants’ offenses. Although defendants received life sentences based on the district court’s drug quantity findings, the Court of Appeals held that the Apprendi error did not rise to the level of plain error because the evidence concerning drug quantity was overwhelming. The court held, however, that the district court committed other sentencing errors and vacated all defendants’ sentences and remanded for resentencing. On remand, defendants argued that they were entitled to de novo resentencing, but the district court corrected only the errors identified by the court of appeals and resentenced defendants to life. On appeal, the Seventh Circuit acknowledged that it had vacated defendants’ sentences entirely and had not imposed limitations on the district court’s authority on remand, but it held that the district court did not abuse its discretion in refusing to sentence defendants de novo. Because the defendants were resentenced prior to Booker, however, the court remanded to determine whether the court would have imposed a more lenient sentence if it knew the guidelines were advisory. U.S. v. Mansoori, 480 F.3d 514 (7th Cir. 2007).
7th Circuit says court could impose consecutive sentences on remand even though it originally imposed concurrent ones. (197) Defendant was originally sentenced to 293 months, to run concurrently to a prior undischarged state sentence. The appellate court reversed one conviction for lack of evidence and remanded for resentencing. On remand, the court imposed a 120-month sentence on the remaining count. It ordered the sentence to run consecutively to the prior undischarged sentence, finding that consecutive terms were necessary to adequately punish defendant for his “continuing pattern of drug activities.” This ruling, assuming that the prior sentence was 262 months, would have resulted in an overall time of imprisonment of 382 months – 89 months longer than the time defendant originally received. The Seventh Circuit affirmed. First, there was no double jeopardy violation. Where a defendant is sentenced on multiple counts, he has “no legitimate expectation of finality in any discrete portion of the sentencing package after a partially successful appeal.” Second, there was nothing in the earlier opinion that imposed any limits on the court’s ability to reconsider the sentencing package as a whole. Finally, the new sentence did not raise a presumption of vindictiveness. At oral argument, the parties clarified that the prior undischarged sentence had been reduced to 151 months. This meant that defendant’s total term of imprisonment was now 271 months, 22 months shorter than his original sentence. U.S. v. Rivera, 327 F.3d 612 (7th Cir. 2003).
7th Circuit finds no vindictiveness from higher sentence on remand where agreement’s restraints were lifted. (197) Defendant pled guilty to conspiracy under a 1993 plea agreement. He escaped before sentencing, was apprehended in Mexico, and extradited to the U.S. He then pled guilty to escape. He also signed an addendum to his 1993 agreement providing that, in exchange for his guilty plea to escape, the government would recommend a sentence on the conspiracy charge at the low end of the applicable range, and defendant would withdraw all objections to the PSR. The district court sentenced defendant to 220 months on the conspiracy charge. Later, the government was forced to dismiss the escape charge. Defendant successfully moved to vacate the conspiracy sentence, charging that his attorney had been ineffective in advising him to sign the addendum. At resentencing, defendant raised numerous objections to the PSR. The district court rejected all of his objections, and sentenced him to 225 months. The Seventh Circuit ruled that the district court did not act vindictively in sentencing defendant to a longer prison term at sentencing. When the court granted defendant’s request for relief, “it not only wiped the slate clean of the original sentence, but also lifted the constraints that the addendum had imposed on each party.” Defendant was no longer precluded from making objections to the PSR, and the government was no longer obligated to recommend at sentence at the bottom of the applicable sentencing range. Moreover, even if the circumstances supported a presumption of vindictiveness, the judge articulated sufficient reasons for the increased sentence based on new objective information regarding defendant’s conduct. U.S. v. Warda, 285 F.3d 573 (7th Cir. 2002).
7th Circuit denies departure for post-sentence rehabilitation. (197) The Seventh Circuit originally vacated defendant’s sentence because it found that he had been improperly granted an acceptance of responsibility reduction. On remand, the district court refused to depart downward on the basis of defendant’s claimed “extraordinary efforts at post-sentence rehabilitation.” Defendant appealed, arguing that the district judge incorrectly thought herself barred from considering such a downward departure. Although the remand was for the limited purpose of enabling the judge to resentence defendant without the acceptance reduction, the Seventh Circuit noted that the remand order “did not preclude the judge’s consideration of extraordinary and unforeseen events occurring after the original sentencing, events not before us when we remanded the case, to the extent they bore on the sentence.” Although the judge may not have understood this, she was properly dubious of defendant’s claim of post-sentence rehabilitation. Although new guideline § 5K2.19, effective November 2000, was not applicable to defendant, “we cannot imagine how a defendant’s decision to be on his best behavior for a period of time after sentencing (20 months in this case), when he is hoping for a reversal that will require that he be resentenced, could be a persuasive ground for a sentencing discount.” Moreover, the modest religious activities on which defendant’s claim was based did “not begin to justify the extraordinary relief requested.” U.S. v. Buckley, 251 F.3d 668 (7th Cir. 2001).
7th Circuit finds defendant had notice of PSR at resentencing where court used original PSR. (197) Defendant was convicted of drug and firearms charges, but his firearms convictions were reversed on appeal. At resentencing there were two issues: whether to apply a § 2D1.1(b)(1) firearm enhancement, and whether to make a downward criminal history departure. On appeal, defendant contended that his due process rights were violated at resentencing because he was not given sufficient time to review the PSR. The Seventh Circuit found no due process violation, since the PSR used at resentencing was the same PSR used by the government at defendant’s original sentencing more than two years earlier. After defense counsel explained to him at the resentencing hearing that the government was using the original PSR, defendant acknowledged that he had had an opportunity to review it prior to his original sentencing. For the same reasons, the court also rejected defendant’s claim that the government violated 18 U.S.C. § 3553(d) by not giving him a copy of the PSR until the day before resentencing. Although the ten-day rule of § 3552(d) also applies to defense counsel, that argument was waived. U.S. v. Jackson, 186 F.3d 836 (7th Cir. 1999).
7th Circuit says procedure at resentencing is matter of judge’s discretion. (197) Defendant sought resentencing under Amendment 505, which lowered the maximum base offense level in the drug quantity table from 42 to 38 and would have reduced defendant’s sentencing range from a mandatory term of life to a range of 360 months to life. The district court denied defendant’s motion, stating that defendant’s original sentence was appropriate. In an unpublished opinion, the Seventh Circuit remanded because there was no meaningful basis for review. On remand, the court ordered briefs as to whether defendant should be given an appointed attorney and have a hearing, as well as whether he must be personally present for “resentencing.” The judge decided “no” and declined to modify defendant’s sentence. The judge issued an amended judgment and commitment order (with reasons) resentencing defendant to life imprisonment. The Seventh Circuit upheld the district court’s use of this procedure. “[A] proceeding under 18 U.S.C. § 3582(c) is not a do-over of an original sentencing proceeding where a defendant is cloaked in rights mandated by statutory law and the Constitution.” How a district judge elects to consider a § 3582(c) motion “is largely a matter of discretion.” Although the judge’s incorrectly noted that life imprisonment was the only option under the guidelines, the record as a whole showed that the judge was aware that he was free to reduce defendant’s sentence. U.S. v. Tidwell, 178 F.3d 946 (7th Cir. 1999).
7th Circuit upholds court’s authority to restructure multi-count sentence. (197) In a pre-guidelines case, the district court originally sentenced defendant to 12 years in prison, five years of probation, and $3.5 million in restitution. After he had served his 12-year prison term, defendant filed a Rule 35(a) motion alleging that the 1986 sentence was improper because 18 U.S.C. § 3651 did not permit a court to impose both imprisonment exceeding six months and probation for any one count. The district court agreed. On 13 of the 14 counts, the court vacated the probation and the restitution, but left in place the 12-year prison term. On the last count, the court vacated the prison term but left in place the five years of probation and $3.5 million in restitution. Thus, the restructured sentence resulted in the same overall sentence as originally imposed. The Seventh Circuit affirmed. The fact that defendant had already served his 12-year prison term did not deprive the court of authority to restructure his sentence. When a sentence is illegal simply because of an error in the manner in which the district court structured the original sentencing package, nothing in Rule 35(a) “prevents a court from rebuilding the edifice to carry out the plan, so long as the reconstruction eliminates the illegal feature of the first package.” U.S. v. Martenson, 178 F.3d 457 (7th Cir. 1999).
7th Circuit holds reconsideration of relevant conduct exceeded scope of remand. (197) Defendant was convicted of mail fraud and money laundering. In U.S. v. Wilson, 98 F.3d 281 (7th Cir. 1996), the court vacated his sentence after finding that the mail fraud and money laundering counts should have been grouped under § 3D1.2(d). On remand, the district court found that grouping the two convictions produced an even higher offense level because the mail fraud was relevant conduct with respect to the money laundering, and thus the loss from the mail fraud could be used to calculate the money laundering guideline. The Seventh Circuit held that reassessing the question of relevant conduct exceeded the scope of the remand. When defendant appealed the grouping issue, the government did not cross-appeal the relevant conduct issue or suggest that a decision in defendant’s favor would reopen the matter of relevant conduct. Thus, the relevant conduct issue was finally determined before the first appeal, and nothing the court said about grouping reopened that issue. The government waived any argument that the total loss from the mail fraud should be used in the money laundering guideline. U.S. v. Wilson, 131 F.3d 1250 (7th Cir. 1997).
7th Circuit upholds jurisdiction to resentence more than 3 months after granting 2255 motion. (197) Defendant was originally convicted of drug and firearms charges. On October 31, 1996, the district court granted defendant’s § 2255 petition to vacate the firearm conviction, and instructed the government to notify the court by December 1 whether it intended to retry defendant on the § 924(c) charge. On December 5, the government finally advised the court that it did not intend to retry defendant. On February 11, the court scheduled a sentencing hearing, and on March 14, the court resentenced defendant on the drug count, applying a § 2D1.1(b)(1) enhancement. The Seventh Circuit upheld the court’s jurisdiction to resentence defendant more than 3 months after deciding the merits of defendant’s collateral attack. There is no rule or statute implying a limit on the court’s jurisdiction to recalculate a sentence when one count is vacated. Even if there is a point at which the court might lose the power to resentence on an undisturbed count, that point was not reached here. A court must be given a reasonable time to recalculate the sentence. U.S. v. Walker, 118 F.3d 559 (7th Cir. 1997).
7th Circuit remands to different judge for refusing to apply 2D1.1(b)(1) after 924(c) acquittal. (197) A jury convicted defendant of operating a crack distribution house, but acquitted him of using a gun during a drug trafficking crime in violation of 18 U.S.C. § 924(c). At sentencing, the judge refused to apply § 2D1.1(b)(1) for possessing a firearm, citing the jury’s § 924(c) acquittal for using it. In U.S. v. Pollard, 72 F.3d 66 (7th Cir. 1995), the court reversed and remanded, since innocence of § 924(c) is entirely consistent with a § 2D1.1(d) (1) enhancement. On remand, the same judge refused to receive evidence on the issue of defendant’s firearm possession, stating that he would not overrule the jury’s “finding.” The Seventh Circuit remanded with directions for a different judge to consider the § 2D1.1(b)(1) enhancement. A jury can conclude that the prosecutor did not establish beyond a reasonable doubt that defendant “used” a gun in his drug dealings, while a preponderance of the evidence could show that defendant “possessed” guns in connection with the offense. Judge Evans dissented. U.S. v. Booker, 115 F.3d 442 (7th Cir. 1997).
7th Circuit affirms resentencing on drug count even though § 2255 petition only challenged gun count. (197) Defendant successfully petitioned the court under § 2255 to vacate his § 924(c) firearm conviction in light of Bailey v. U.S., 116 S.Ct. 501 (1995). At resentencing, the district court imposed a § 2D1.1(b)(1) firearm enhancement to his sentence for the drug offense. Defendant argued that the district court could not resentence him on a count not attacked in his § 2255 petition. The Seventh Circuit, relying on U.S. v. Smith, 103 F.3d 531 (7th Cir. 1996), held that the vacation of the § 924(c) portion of defendant’s sentence “unbundled” his sentencing package and entitled the court to effectuate its original sentencing intent by resentencing defendant and adding a § 2D1.1(b)(1) firearm enhancement. Thus, in a § 2255 proceeding, the district court has the authority to restructure a defendant’s entire sentence even when the prisoner’s petition attacks the validity of just one of the counts of conviction. U.S. v. Binford, 108 F.3d 723 (7th Cir. 1997).
7th Circuit allows revision of sentence in 2255 motion when one count is vacated. (197) After the Supreme Court decided Bailey v. U.S., 116 S.Ct. 501 (1995), defendant filed a 28 U.S.C. § 2255 petition requesting that his § 924(c) conviction for “use” of a firearm be vacated. The district court granted the petition, but then revised his sentence on the remaining counts to reflect possession of the firearm. Defendant argued that the district court had no jurisdiction to revise the entire “sentencing package,” but could only deal with the invalid count. The Seventh Circuit upheld the court’s authority on a § 2255 petition to revise the entire sentence. A multi-count sentence is a package, and severing part of the total sentence usually will unbundle the entire package. The resentencing did not violate double jeopardy, even though at the time the § 924(c) count was vacated defendant had served his time on the other counts under the original sentence. U.S. v. Smith, 103 F.3d 531 (7th Cir. 1996).
7th Circuit says court may increase for firearm after reversal of § 924(c) conviction. (197) Defendant was convicted of drug and firearms charges. After reversing the § 924(c) conviction, the Seventh Circuit remanded for resentencing on the affirmed drug convictions. The court ruled that even though the conviction for “use” of a firearm under § 924(c) had been invalidated, the district court was free, on resentencing, to increase defendant’s drug sentence under § 2D1.1(b)(1) for “possession” of the firearm. U.S. v. Jackson, 103 F.3d 561 (7th Cir. 1996).
7th Circuit says defendant need not be present for non‑discretionary correction of sentence. (197) In defendant’s first appeal, the Seventh Circuit rejected all of defendant’s claims except his challenge to an obstruction of justice enhancement. On remand, the district court resentenced defendant by written order, without a new sentencing hearing. On appeal, the Seventh Circuit gave defense counsel permission to withdraw because there were no grounds for an appeal. A defendant does not have a right to be present at resentencing when the case is remanded for a non‑discretionary correction of the original sentence. The judge merely dropped the sentence from the lowest point in the guideline range with a two level enhancement to the lowest point in the range without the enhancement. Defendant was not required to be present. Other challenges that defendant attempted to raise were also frivolous. The remand was limited to the obstruction of justice enhancement. Only an issue arising out of the correction of the sentence ordered by the appellate court could be raised in a subsequent appeal. Any issue not arising out of the correction could have been raised in the original appeal and therefore was waived. U.S. v. Parker, 101 F.3d 527 (7th Cir. 1996).
7th Circuit says remand did not limit scope of resentencing to drug quantity determination. (197) At defendant’s first two sentencing hearings, the district court found that defendant was subject to a mandatory life sentence. In U.S. v. Young, 34 F.3d 500 (7th Cir. 1994), the Seventh Circuit held that the court had incorrectly determined the quantity of drug attributable to defendant. It “vacate[d] the district court’s sentence and remand[ed] the case for resentencing consistent with this opinion.” At defendant’s third sentencing hearing, the district court held defendant accountable for a much smaller quantity of drugs, but then made a criminal history departure. Defendant argued that the district court lacked jurisdiction to consider an upward departure because the scope of the remand order was limited. The Seventh Circuit disagreed, finding the broad remand order did not limit the scope of issues the district court could consider on remand. If the court had meant to limit the remand, it would not have been necessary to resolve defendant’s challenge to an aggravating role enhancement. U.S. v. Young, 66 F.3d 830 (7th Cir. 1995).
7th Circuit says resentencing was properly limited to obstruction of justice enhancement. (197) On defendant’s first appeal, the Seventh Circuit rejected all but one of his challenges to his sentence. The district court had relied on an improper basis for an obstruction of justice enhancement. In remanding, the court stated that “the sentence is vacated and the case is remanded for resentencing on the issue of obstruction of justice.” After resentencing, defendant appealed the district court’s refusal on remand to hear arguments outside the obstruction of justice issue. The Seventh Circuit affirmed, finding it had limited its remand to resentencing only on the obstruction of justice issue. The only open issue was the obstruction enhancement. The previous appellate opinion summarily rejected all of defendant’s other sentencing claims; therefore the law of the case doctrine barred the district court from reconsidering these issues. U.S. v. Polland, 56 F.3d 776 (7th Cir. 1995).
7th Circuit, en banc, says recalculating sentence on resentencing did not violate double jeopardy. (197) The district court originally sentenced defendant as an armed career criminal based on a 1975 juvenile burglary conviction, a 1980 burglary conviction, and three 1983 convictions for burglary. In an unpublished opinion, a 7th Circuit panel remanded for further findings. At resentencing, the district court concluded that defendant’s three 1983 burglaries were separate crimes, and again sentenced him as an armed career criminal. Defendant argued that the district court’s recalculation of his sentence after his resentencing hearing violated double jeopardy. The en banc 7th Circuit disagreed, stating that the case was remanded to ask the sentencing court to expand the record on evidence that had already been received. This did not preclude correction of the sentence after further review of the record. The Double Jeopardy Clause does not preclude the recalculation of a defendant’s sentence enhancement initially vacated for an insufficient record. U.S. v. Hudspeth, 42 F.3d 1015 (7th Cir. 1994) (en banc).
8th Circuit approves same sentence on remand despite dismissal of prior conviction. (197) Defendant pled guilty to firearms charges. His guideline range was 46-57 months, and the court sentenced him to 57 months despite his objection the inclusion of a state conviction in his criminal history. The appellate court reversed and ordered resentencing in light of the state court’s dismissal of the contested conviction. The district court recalculated defendant’s guideline range at 37-46 months, but varied upward and again sentenced him to 57 months. The Eighth Circuit found no plain error. On remand, the district court expressly reconsidered all of the 18 U.S.C. § 3553(a) sentencing factors as applied to defendant, including his violent criminal history, lack of impulse control, failure to contribute to society or support his children, and “fundamental lack of respect for law.” The district court also considered the nature of defendant’s crime, the need for deterrence, and the need to protect the public. The district court then concluded 57 months imprisonment, though now an upward variance from the guidelines, remained the appropriate sentence. No further explanation was required. U.S. v. Butler, 743 F.3d 645 (8th Cir. 2014).
8th Circuit approves same sentence after resentencing without career offender enhancement. (197) Defendant pled guilty to robbery and firearms charges, and was sentenced as a career offender to 384 months. Based on an error in his criminal history, defendant successfully appealed his career offender status. On resentencing, the district court re-imposed a 384-month sentence, which, without the career offender enhancement, represented a 90-month upward variance from defendant’s advisory guideline range. The Eighth Circuit held that the sentence imposed on remand was substantively reasonable. The district court noted that “[t]he nature and circumstances and the seriousness of the crimes that you committed are the same today as they were in May of 2011,” that defendant “exhibited a persistence in criminal activity,” that his “prior crimes have included firearms possession and use, as well as escaping from custody,” and “that the prior sentences of imprisonment that you’ve received and even one as long as 20 years – haven’t done anything to deter you from criminal conduct.” Thus, the court properly determined the earlier sentence of 384 months imprisonment still “was appropriate to address the goals of punishment, deterrence, and incapacitation.” U.S. v. Jones, 700 F.3d 615 (8th Cir. 2012).
8th Circuit says resentencing judge was not required to defer to original judgment. (197) At defendant’s first sentencing, the court computed a guidelines range of 110-137 months, and imposed a sentence of 137 months, but suspended 77 of those months because it felt that defendant had “turned his life around” and “seen the light.” The first sentence was vacated because the district judge did not have the authority to impose a suspended sentence. The second sentence was also vacated after the Supreme Court decided Gall v. U.S., 552 U.S. 38 (2007). On his third sentencing, the court sentenced defendant to 72 months, rejecting defendant’s request for a “reimposition of the original sentencing in a technically correct manner,” i.e., a sentence of 60 months’ imprisonment followed by a lengthy term of supervised release. The Eighth Circuit affirmed, holding that the district court on resentencing was not required to give deference to the original sentencing judgment. Both of the prior remands were general remands for resentencing, which placed no limitation on the discretion of the newly-assigned district judge in resentencing. U.S. v. Ross, 640 F.3d 1269 (8th Cir. 2011).
8th Circuit holds resentencing court properly considered intervening Supreme Court case. (197) The district court found that defendant was a career offender based in part on an Iowa conviction for operating a vehicle without the owner’s consent (OVWOC). At the time of defendant’s sentencing hearing, Eighth Circuit precedent held that OVWOC offenses were crimes of violence and violent felonies. The Eighth Circuit remanded for resentencing in light of the Supreme Court decisions in Kimbrough and Gall. After the court’s remand but before defendant’s resentencing, the Supreme Court decided Begay v. U.S., 553 U.S. 137 (2008), which changed the test for determining whether an offense is a violent felony. The district court ruled that under Begay, OVWOC was not a crime of violence. The Eighth Circuit held that the district court correctly considered and applied the intervening Supreme Court precedent. While issues outside the scope of the remand are generally not available for consideration at resentencing, such a rule does not apply when the earlier panel decision is cast into doubt by a decision of the Supreme Court. U.S. v. Steward, 598 F.3d 960 (8th Cir. 2010).
8th Circuit holds that remand did not require court to grant 40% downward departure for substantial assistance. (197) Defendant’s guideline range was 97-121 months. Based on the government’s § 5K1.1 motion, the district court originally sentenced defendant to 24 months, but the Eighth Circuit reversed because the court considered matters unrelated to defendant’s assistance. On remand, the district court first granted a 40% downward departure to 58 months based on defendant’s substantial assistance, and then granted a downward variance to 24 months. The Eighth Circuit again reversed and remanded for resentencing by a different judge. The district court abused its discretion in granting the downward variance because the court considered improper factors such as defendant’s post-sentencing rehabilitation. The new court found that it was not bound by the 40% substantial assistance departure, and granted defendant only a 20% substantial assistance departure. The Eighth Circuit agreed that its previous remand did not require the district court to grant the 40% departure. The remand was a general remand for resentencing. The opinion did not place any limitations on the discretion of the newly assigned district judge in resentencing defendant. U.S. v. Pepper, 570 F.3d 958 (8th Cir. 2009), affirmed in part, vacated in part, Pepper v. U.S., 131 S.Ct. 1229 (2011).
8th Circuit holds that court impermissibly relied on defendant’s post-sentencing rehab to justify 13.5 month reduction. (197) Defendant’s guideline range, prior to any departure, was 135-168 months. The offense carried a mandatory minimum sentence of 120 months. The district court granted the government’s § 5K1.1 and 18 U.S.C. § 3553(e) motion and reduced defendant’s sentence to 36 months. On defendant’s first appeal, the Eighth Circuit reversed the sentence, holding that the extent of the sentence reduction was unreasonable. On remand, the district court granted her a 50% reduction for substantial assistance, finding that her assistance was “extraordinary,” but not so extraordinary as to justify the 73% reduction. In addition to the 50% substantial assistance reduction, the court varied from the advisory guidelines based on defendant’s post-offense rehabilitation. The final sentence was 54 months. The Eighth Circuit reversed. First, it declined to reconsider its previous holding that a substantial assistance reduction from 135 months to 36 months was unreasonable. And, while the court was not prohibited altogether from considering factors other than substantial assistance in fashioning defendant’s sentence, the court was not permitted to rely on defendant’s post-sentencing rehabilitation. Such evidence is “not relevant” and cannot be considered at resentencing because the district court could not have considered the evidence at the time of the original sentencing. U.S. v. Coyle, 506 F.3d 680 (8th Cir. 2007).
8th Circuit holds that error in considering post-sentencing rehabilitation was not harmless. (197) Defendant’s guideline range was 57-71 months, but the district court sentenced him to 24 months. The Third Circuit panel vacated the sentence as unreasonable. U.S. v. McMannus, 436 F.3d 871 (8th Cir. 2006). On remand, the district court again imposed a 24-month sentence. The court stated that because of the new evidence introduced during the resentencing hearing, the appellate court’s opinion did not preclude it from pronouncing a term of imprisonment identical to the one vacated previously as unreasonable. The court also stated that it considered defendant’s post-sentencing conduct in determining the extent of the variance, but that it would pronounce the same sentence even if it had not considered that conduct. The Eighth Circuit found that defendant’s post-sentencing rehabilitation was an impermissible ground for a downward variance. The error was not harmless, even though the court stated that it would have imposed the same sentence even had it not considered the evidence related to his post-sentencing rehabilitation. Any harmless error analysis is precluded because the record on resentencing (excluding the impermissible evidence of post-sentencing rehabilitation) was substantially identical to the record at defendant’s first sentencing. An Eighth Circuit panel already held that a 24-month sentence on the same record was unreasonable. U.S. v. McMannus, 496 F.3d 846 (8th Cir. 2007), abrogated as to post-sentencing rehabilitation by Pepper v. U.S., 131 S.Ct. 1229 (2011).
8th Circuit rejects departure on remand that did not appear as grounds for departure in court’s first written order. (197) On defendant’s first appeal, the Eighth Circuit reversed the sentencing court’s consolidation of three burglary offenses into one. Defendant’s criminal history calculation went from category VI to IV, his offense level from 34 to 31, and his sentencing range from 262-325 to 151-188 months. On remand, the district court determined that his criminal history was over-represented, and departed downward, causing his criminal history to go from category VI to IV, his offense level to go from 34 to 31, and his sentencing range to go from 262-325 to 151-188 months. Criminal history overrepresentation did not appear as a grounds for departure in the court’s first written statement of reasons. The Eighth Circuit held that the court violated § 3742(g), which limits permissible departures on remand. On remand, a court may not impose a sentence outside the applicable guidelines sentencing range unless the ground “was specifically and affirmately included in the written statement of reasons required by section 3553(c) in connection with the previous sentencing of the defendant prior to the appeal.” U.S. v. Mills, 491 F.3d 738 (8th Cir. 2007).
8th Circuit holds § 3742(g) did not bar government from making § 3553(e) motion on remand. (197) On defendant’s first appeal, the Eighth Circuit reversed the sentencing court’s consolidation of several burglary offenses. On remand, defendant’s initial guidelines sentencing range was 262-327 months, but the court departed under § 4A1.3 to reduce it to 163-200 months. The court then granted the government’s § 5K1.1 motion for a 30 percent downward departure, which brought his guideline range to 114 to 140 months. However, defendant was subject to a 120-month mandatory minimum, and the court imposed a 120-month sentence. The government declined to file a § 3553(e) motion necessary for the court to impose a sentence below the statutory minimum. It claimed that (a) it lacked the authority, under 18 U.S.C. § 3742(g), to make such a motion on remand, and (b) the substantial non-assistance departures already granted by the court made filing the motion inappropriate. The Eighth Circuit ruled that the government’s interpretation of § 3742(g) was incorrect. By its plain language, § 3742(g) restrains only the district court; the government’s authority to make a recommendation under § 3553(e) is unaffected. However, the panel agreed that given the other non-assistance departures defendant received, filing the § 3553(e) was not warranted. U.S. v. Mills, 491 F.3d 738 (8th Cir. 2007).
8th Circuit holds that law of the case did not preclude court from imposing sentence identical to previous sentence that was reversed. (197) Defendant and Lazenby pled guilty to drug conspiracy charges. One judge gave Lazenby a substantial variance and sentenced her to 12 months; a different judge sentenced defendant to 87 months, the bottom of her range. The cases were consolidated for appeal and remanded. On remand, Lazenby received a 70-month sentence and defendant received the same 87-month sentence. The Eighth Circuit held that the law of the case did not preclude the district court from imposing on remand a sentence identical to the one which had been reversed on appeal. In deciding the first appeal, the court had been concerned by “the extreme disparity between the sentences imposed on two similarly situated conspirators.” After concluding that Lazenby’s sentence was unreasonable, and remanding for resentencing, the panel remanded defendant case for resentencing as well, noting that this would provide the district court an opportunity to address a number of highly unusual circumstances – the extreme sentencing disparity among similarly situated conspirators, whether the stipulated drug quantities had produced guidelines-created disparity, and whether defendant’s cooperation had been adequately taken into account. The panel in no way limited or restricted the court’s sentencing discretion on remand. U.S. v. Goodwin, 486 F.3d 449 (8th Cir. 2007).
8th Circuit holds government could withdraw § 3553(e) motion at resentencing. (197) At defendant’s initial sentencing on drug charges, the government made a motion under U.S.S.G. § 5K1.1 based on defendant’s substantial assistance, but because the guideline range was already below the mandatory minimum, the § 5K1.1 motion was ineffectual without an additional § 3553(e) motion. The government made the § 3553(e) motion, but reserved the right to withdraw the motion in the event its objection to a minor role reduction was successful on appeal. The appeal was successful, and on remand, the government renewed the § 5K1.1 motion, but withdrew its § 3553(e) motion to depart below the mandatory minimum because the new guideline range was significantly above the mandatory minimum sentence. The district court resentenced defendant to the statutory mandatory minimum sentence of 120 months. The Eighth Circuit held that the government did not waive its right to withdraw the § 3553(e) motion made at the initial sentencing hearing. The government specifically conditioned the motion on the denial of its objection to the minor role reduction. U.S. v. Hodge, 469 F.3d 749 (8th Cir. 2006).
8th Circuit holds that “law of the case” did not require obstruction increase. (197) Defendant hired an employee to destroy his club so that defendant could collect on its insurance. The building exploded and the employee was killed. The court initially declined to impose an obstruction increase, and the appellate court reversed because it believed that the court’s reason for failing to impose the enhancement was its erroneous belief that the enhancement did not apply to unsuccessful attempts to obstruct justice. At resentencing, the court stated that his decision not to impose the enhancement was not based on this, but rather, its finding that defendant had not obstructed justice. The court believed itself bound to impose the enhancement and sentenced defendant accordingly. The Supreme Court then decided U.S. v. Booker, 543 U.S. 220 (2005), and the appellate court remanded for resentencing in light of Booker. The district court again indicated that while it did not believe that the government had proved obstruction of justice, it considered itself bound to impose the increase. The Eighth Circuit reversed. Its previous opinion did not address or resolve the question of whether defendant actually had engaged in conduct that would support the enhancement. Instead, it relied on the (erroneous) conclusion that the district court had found that defendant made an attempt to obstruct justice. U.S. v. Manfre, 456 F.3d 871 (8th Cir. 2006).
8th Circuit holds that use of schoolyard guideline did not exceed scope of remand. (197) Defendant pled guilty to possession with intent to distribute methamphetamine within 1000 feet of a school, in violation of 21 U.S.C. §§ 841(a)(1), 860(a). In an unpublished opinion, the conviction was upheld but the sentence vacated because of an error in calculating the amount of meth attributable to him. At resentencing, the district court sentenced defendant under U.S.S.G. § 2D1.2(a)(1), which applies to drug offenses occurring near protected locations and adds two levels to the offense level calculated under § 2D1.1. Defendant argued that because the appellate court did not “explicitly instruct” the district court to hold further proceedings “on any issues other than correct drug quantity and applicable mandatory minimum sentences,” the law of the case doctrine prevented the court from “reopening the issue of enhancement for location.” The Eighth Circuit held that the district court did not exceed the scope of the remand. In the prior opinion, the court did not decide any issues relating to the application of U.S.S.G. § 2D1.2, and it did not establish any restrictions preventing the district court from considering this guideline. To the contrary, it instructed the district court to “recalculate the correct sentencing range under the Guidelines.” U.S. v. Curtis, 336 F.3d 666 (8th Cir. 2003).
8th Circuit says court was bound to impose 30-year sentence on remand. (197) Defendant was originally sentenced to life imprisonment and ten years supervised release. The appellate court affirmed his conviction, but vacated his sentence based on Apprendi v. New Jersey, 530 U.S. 466 (2000), and remanded “with directions to resentence each defendant to a 30-year term of imprisonment.” On remand, the district court sentenced defendant to 30 years imprisonment and ten years supervised release. On appeal, defendant argued that his sentence violated Apprendi. The Eighth Circuit held that the district court correctly found that it was bound by the appellate mandate to sentence defendant to 30 years imprisonment. U.S. v. Banks, 333 F.3d 884 (8th Cir. 2003).
8th Circuit holds that sentence upon remand was not presumptively vindictive. (197) The district court originally sentenced defendant to 262 months, the bottom of the guideline range. The case was remanded because of an error in calculating the applicable drug quantity. On remand, the district court determined a corrected guideline range of 210-262 months, and sentenced defendant to 250 months. The Eighth Circuit held that the imposition of a 250-month sentence was not presumptively vindictive. A resentencing does not trigger the presumption of vindictiveness under North Carolina v. Pearce, 395 U.S. 711 (1969) unless the second sentence is “more severe.” Just because defendant was sentenced at the bottom of the original range did not mean he had a right to be sentenced at any particular point in the recalculated range. See U.S. v. Arrington, 255 F.3d 637 (8th Cir. 2001). U.S. v. Smotherman, 326 F.3d 988 (8th Cir. 2003), abrogation on other grounds recognized by U.S. v. Mickelson, 433 F.3d 1050 (8th Cir. 2006).
8th Circuit bases obstruction increase on conduct that occurred at resentencing. (197) Defendant’s original sentence was vacated because the district court erroneously relied on certain information in resolving a disputed issue. After testifying at the resentencing hearing, the probation officer advised the district court that defendant had “stared at” him, “shook his head,” and “moved his lips” during the hearing. Based on his “experience in dealing with defendants,” the probation officer concluded that defendant was conveying the message “I am going to get you” or “I am going to get even with you.” Others confirmed this behavior. The district court found that defendant’s conduct was “hostile” and “intimidating” and applied an obstruction of justice enhancement. The Eighth Circuit affirmed, holding that the court’s application of the increase based on defendant’s conduct during the resentencing hearing did not violate the scope of the remand. Although a court may not consider post-sentencing rehabilitation at resentencing as the basis for a downward departure, it is not inconsistent to consider post-sentencing obstructive conduct that occurs in the judge’s presence. Otherwise, the judge would lack an effective remedy for obstructive conduct that interferes with the resentencing process. U.S. v. Stapleton, 316 F.3d 754 (8th Cir.2003).
8th Circuit holds that court had jurisdiction to resentence on all counts as package. (197) Defendant was convicted of seven counts. The district court departed upward and sentenced defendant to 396 months in prison. The appellate court affirmed the departure, but remanded because the sentences imposed on two of the counts exceeded the statutory maximums for the offenses at the time defendant committed the offenses, in violation of the ex post facto clause. On remand, the district court again imposed a 396-month sentence, offsetting reduced sentences on those two counts with increased sentences on four other counts. The Eighth Circuit held that the district court had jurisdiction to resentence on all of the counts. Under the guidelines, a multi-count sentence is a package and severing part of the total sentence usually will unbundle it. Here, § 5G1.2(d) required the district court to sentence the seven counts as a package, using consecutive and concurrent sentences so as to impose the proper total punishment. Increasing defendant’s sentences on counts that he did not challenge did not violate the double jeopardy clause. Finally, the presumption of vindictiveness in North Carolina v. Pearce, 395 U.S. 711 (1969) does not arise when a district court resentenced a defendant on a multi-count conviction in accordance with Part 5G of the Sentencing Guidelines. Judge Arnold dissented. U.S. v. Evans, 314 F.3d 329 (8th Cir. 2002).
8th Circuit finds no ex post facto violation where prior robbery warranted same increase under both guidelines. (197) Defendant pled guilty to illegally reentering the U.S. after deportation, and received a 16-level enhancement under § 2L1.2 because the district court found that his prior conviction for second-degree robbery was a felony crime of violence. Defendant argued that the district court erred in using the amended guideline in effect at the time of sentencing, rather than the guideline in effect at the time of the offense. Because either version of § 2L1.2 would have required the same 16-level increase, the Eighth Circuit found no ex post facto violation. Section 2L1.2(b)(1)(A)(ii), as amended November 1, 2001, provides for the 16-level increase if the prior conviction was for a felony crime of violence. Note 1B(ii)(II) defines “crime of violence” to include “robbery.” Under the prior guideline, the 16-level increase was imposed if the prior conviction was for any aggravated felony. See USSG § 2L1.2(b)(1)(A) (2000). The definition of “aggravated felony” included any “crime of violence” under 18 U.S.C. § 16. Robbery, as defined in the California Penal Code, requires the crime to be accomplished through “force or fear.” Thus, by its nature it presents “a substantial risk that physical force against the person or property of another may be used,” and constitutes a crime of violence under § 16(b). U.S. v. Valladares, 304 F.3d 1300 (8th Cir. 2002).
8th Circuit says sentence for each counts stands on its own under Apprendi. (197) Defendant was originally sentenced to 97-month concurrent sentences for marijuana charges, and for witness tampering. The appellate court remanded for resentencing on the two drug counts because of an error under Apprendi v. New Jersey, 530 U.S. 466 (2000). On remand, the district court sentenced defendant to 60 months on each of the drugs counts, to be served concurrently with his 97-month sentence for witness tampering. He argued that the 97-month witness tampering sentence was improper under Apprendi v. New Jersey, 530 U.S. 466 (2000) because it exceeded the 60-month statutory maximum applicable to the two drug counts. The Eighth Circuit found the Apprendi argument foreclosed by U.S. v. Nicholson, 231 F.3d 445 (8th Cir. 2000). The sentence for each count stands on its own after full consideration of the Apprendi issue. U.S. v. Ray, 291 F.3d 1039 (8th Cir. 2002).
8th Circuit holds that same sentence on remand, despite lower guideline range, was not vindictive. (197) Defendant’s original guideline range was 77 to 99 months, and the court imposed a 77-month sentence. The appellate court vacated his sentence and remanded for a factual determination as to whether a particular firearm was stolen. At resentencing, the court agreed that there was no factual basis for a two-level stolen firearm enhancement, and recalculated his guideline range at 63 to 78 months. However, the court again sentenced defendant to 77 months’ imprisonment. On appeal defendant argued that the sentence on remand violated his due process rights because it was presumptively vindictive. The Eight Circuit held that because a more severe sentence was not imposed on remand, defendant could not make out a claim of vindictiveness. Just because he was sentenced at the bottom of the original range did not mean he had a right to be sentenced at any particular point in the recalculated guideline range. No presumption of vindictiveness arose because he was not sentenced at his preferred point in the applicable range. U.S. v. Arrington, 255 F.3d 637 (8th Cir. 2001).
8th Circuit, en banc, rejects post-sentencing rehabilitation as grounds for downward departure. (197) Defendant filed a motion, under 18 U.S.C. § 3582(c)(2), to reduce her sentence based on a retroactive amendment that reduced her offense level under the Sentencing Guidelines. The district court granted her motion, and also granted her separate motion for a downward departure based on her good in-prison conduct. An Eighth Circuit panel affirmed in U.S. v. Hasan, 205 F.3d 1072 (8th Cir. 2000). However, on rehearing en banc, the Eighth Circuit held that a defendant’s exemplary prison conduct cannot support a downward departure below the amended sentencing range upon a resentencing. First, the language of 18 U.S.C. § 3582(c)(2) is clear. The factors set forth in § 3553(a) and the applicable policy statements are to be considered only when making the decision whether to reduce a term of imprisonment as a result of the Sentencing Commission’s lowering of the sentencing range. The only time a district court is authorized by § 1B1.10 to depart downward from the amended sentencing range at a § 3582(c) resentencing is when a downward departure previously had been granted at the original sentencing. See Note 3. Allowing a further downward departure would result in a substantial windfall to those defendants who fortuitously benefit from a § 3582(c)(2) resentencing. Finally, the Sentencing Commission has proposed and Congress had approved an amendment specifically prohibiting the consideration of post-sentencing rehabilitation as a basis for a downward departure. U.S. v. Hasan, 245 F.3d 682 (8th Cir. 2001) (en banc).
8th Circuit says rehabilitation after original sentencing not grounds for departure. (197) Defendant argued that the resentencing court erred in refusing to consider his post-sentencing conduct as a basis for either a downward departure under § 5K2.0, or an adjustment for acceptance of responsibility under § 3E1.1. However, “[r]ehabilitation that takes place behind prison walls after the original sentencing … is not relevant [at resentencing], since the original sentencing court obviously could not have considered it at the time of the original sentencing. U.S. v. Sims, 174 F.3d 911, 913 (8th Cir. 1999). Accordingly, the Eighth Circuit found no error in the refusal to depart. U.S. v. Edwards, 225 F.3d 991 (8th Cir. 2000).
8th Circuit upholds longer sentence after vacation of § 924(c) sentences. (197) Defendant originally received a sentence of 350 months for his drug and money laundering offenses, and consecutive sentences of 60 months and 240 months for two § 924(c) offenses, for a total sentence of 650 months. The district court later granted his § 2255 petition to vacate his 924(c) convictions in light of Bailey v. United States, 516 U.S. 137 (1995). At resentencing, the court assessed a § 2D1.1(b)(1) firearm increase, resulting in an offense level of 43 and a mandatory life sentence. Defendant requested a downward departure, claiming that the guidelines did not contemplate a situation where the vacating of two § 924(c) convictions results in a longer overall sentence. The Eighth Circuit held that the court’s refusal to depart was unreviewable, since the court was aware of its authority to depart and decided defendant’s case was not suitable for a departure. The panel also rejected defendant’s claim that the increased sentence was the result of vindictiveness. Previous cases have upheld the assessment of a § 2D1.1(b)(1) enhancement after a § 924(c) conviction is vacated and that conviction was part of a multi-count sentencing package. The enhancement resulted in the same sentence defendant would have received had he been acquitted of the two § 924(c) counts. U.S. v. Edwards, 225 F.3d 991 (8th Cir. 2000).
8th Circuit holds that defendant denied right to appeal is not entitled to de novo resentencing. (197) Defendant filed a § 2255 motion to vacate his sentence, claiming that he had received ineffective assistance of counsel at sentencing because his attorney did not tell him he had a right to appeal his sentence. The district court agreed, vacated the judgment, ordered resentencing, and reimposed defendant’s original sentence. Defendant argued that he was entitled to de novo resentencing, including preparation of a PSR and the opportunity to be heard on resentencing. The Eighth Circuit disagreed. When a defendant has been unconstitutionally deprived of appellate review due to ineffective assistance, the prescribed procedure is for the district court to vacate the sentence and then reimpose it, allowing the defendant ten days to appeal from the imposition of the new sentence. The district court did not abuse its discretion in denying defendant’s motion to withdraw his guilty plea, given that the initial sentence was vacated only to reinstate defendant’s right to a direct appeal. U.S. v. Prado, 204 F.3d 843 (8th Cir. 2000).
8th Circuit rules court properly limited scope of resentencing. (197) In defendant’s first appeal, the Eighth Circuit affirmed his drug and firearms convictions but remanded for resentencing. In his second appeal, the Eighth Circuit reversed defendant’s § 924(c) conviction and vacated the drug sentence so that the district court could consider whether to apply a § 2D1.1(b)(1) enhancement. Defendant argued that the vacation of his § 924(c) conviction required the district court to reopen all sentencing issues. The Eighth Circuit held that the district court properly limited the scope of resentencing to the § 2D1.1(b)(1) issue. On remand, a district court can hear any relevant evidence that it could have heard at the first hearing, but “all issues decided by the appellate court become the law of the case.” In defendant’s first appeal, the appellate court specifically affirmed the district court’s findings concerning defendant’s role in the offense and his obstruction of justice. At that point, those findings became the law of the case. Additionally, the opinion limited the scope of remand by expressly stating that it was vacating the drug convictions “so that the district court may consider whether [defendant’s]sentence on the drug counts should be enhanced under USSG § 2D1.1(b)(1).” U.S. v. Behler, 187 F.3d 772 (8th Cir. 1999).
8th Circuit rejects post-sentencing rehabilitation as ground for downward departure. (197) Defendant successfully petitioned under § 2255 to vacate his § 924(c) conviction. At the resentencing hearing, he requested a downward departure based on his extraordinary rehabilitation in prison during the five years since his original sentencing. The Eighth Circuit held that post-sentencing rehabilitation is not a proper basis for a downward departure. Although a defendant’s post-offense rehabilitative conduct can, if sufficiently atypical, furnish an appropriate basis for departure, this rule should not be extended to permit departures based on rehabilitation that takes place during the period between the original sentencing and a resentencing. The court expressly disagreed with the other circuits which have approved such departures. Koon v. United States, 518 U.S. 81 (1996) is not controlling here, since it does not address whether post-sentencing events can support a departure at a resentencing. Endorsing such departures would create the very kind of disparity in sentencing that the Sentencing Reform Act sought to eliminate. It would give a windfall to a few lucky defendants simply because of a legal error in their original sentencing. U.S. v. Sims, 174 F.3d 911 (8th Cir. 1999).
8th Circuit says district court properly limited resentencing. (197) In U.S. v. Coleman, 148 F.3d 897 (8th Cir.), amending 138 F.3d 344 (8th Cir. 1998), the Eighth Circuit rejected most of defendant’s sentencing challenges. However, since the government conceded defendant should have been placed in criminal history category I, the court remanded “for resentencing according to his correct Criminal History Category.” At resentencing, the district court corrected defendant’s criminal history category, but refused to consider the merits of any other issues. The Eighth Circuit held that the district court properly refused to resentence defendant de novo. The court correctly interpreted the appellate opinion and properly limited the scope of resentencing in accordance with the appellate court’s instructions. U.S. v. Coleman, 164 F.3d 1181 (8th Cir. 1999).
8th Circuit holds harsher sentence on remand did not violate due process. (197) Defendant pled guilty to bank robbery and related charges and was sentenced to 233 months. The appellate court affirmed the conviction but remanded for resentencing because the district court had departed upward without prior notice. On remand, the district court departed upward on the ground that defendant’s. rape of a restaurant employee during the armed robbery was cruel and degrading and the victim suffered severe psychological injury. The court imposed a total sentence of 255 months. The Eighth Circuit rejected defendant’s claim that the district court violated due process by imposing a longer sentence on remand. A court may impose a more stringent sentence upon resentencing when it is based on newly obtained information. Here, the district court received reports from psychologists that the trauma defendant caused was more severe than initially thought. There was no showing of vindictiveness or that the court erred by relying on the new information. U.S. v. Johnson, 144 F.3d 1149 (8th Cir. 1998).
8th Circuit says adopting original PSR’s use of higher meth equivalency was not plain error. (197) Defendant was originally convicted of drug and firearms charges. The court later granted his § 2255 petition to vacate the firearm conviction and resentenced him on the drug counts. The guidelines in effect at the time of his original sentence distinguished between the types of methamphetamine involved. The guidelines were later amended to eliminate the difference, and currently use the higher equivalency for all types. Defendant argued that the government offered no evidence as to the type of methamphetamine, and therefore the court at his resentencing improperly used the higher marijuana equivalency. The Eighth Circuit found no plain error. Defendant did not raise this issue below, so the court did not address it. Instead, it adopted the sentencing guideline calculation in the original PSR. Under U.S. v. Griggs, 71 F.3d 276 (8th Cir. 1995), it is not plain error to adopt the calculation in a PSR and thus implicitly find that the relevant meth type was the one with the higher marijuana equivalency, even though the government offered no evidence. The standard of review for plain error on a collateral challenge is even more deferential to the district court than on a direct appeal. U.S. v. Jacobs, 136 F.3d 1187 (8th Cir. 1998).
8th Circuit remands for resentencing on drug counts after 924(c) gun count reversed. (197) Defendants were originally convicted of drug and firearms charges. Thereafter, they moved to vacate their § 924(c)(1) convictions. The government conceded that the § 924(c)(1) convictions should be vacated, but requested resentencing on the underlying drug convictions in order to apply a § 2D1.1(b)(1) gun enhancement. The district court granted the motion to vacate the § 924(c) convictions, but denied the government’s motion for resentencing. The Eighth Circuit remanded for reconsideration, because the court erroneously believed it lacked authority to resentence the drug counts. Although the law was unclear when the district court ruled, several intervening circuit cases have held that in an motion under § 2255, a district court has authority to resentence on a drug trafficking conviction after vacating a related § 924(c) conviction. Cooper v. U.S., 129 F.3d 1013 (8th Cir. 1997).
8th Circuit rejects family circumstances departure. (197) Defendant was convicted of second-degree murder within Indian country. The district court departed downward under § 5K2.0 based on defendant’s record of steady employment and maintenance of family ties and responsibilities despite the difficulties of life on the reservation. The court also found defendant’s conduct was aberrant behavior warranting departure. In U.S. v. Weise, 89 F.3d 502 (8th Cir. 1996), the Eighth Circuit reversed, finding the record inadequate to support a family ties departure. On remand, the district court held an evidentiary hearing and again departed downward, finding defendant’s conduct was aberrant behavior. The Eighth Circuit again reversed, holding that its previous opinion foreclosed the aberrant behavior departure and the district court was not free to revisit this issue. The family circumstances relied on by the district court were not sufficiently unusual to warrant a departure. The record did not show anything about the reservation environment that skewed defendant’s opportunities in a way strikingly different from families of similar means and circumstances living elsewhere. U.S. v. Weise, 128 F.3d 672 (8th Cir. 1997).
8th Circuit permits additional level on remand for sale of drugs in protected location. (197) Defendant was convicted of drug charges and sentenced to 175 months. In U.S. v. Santonelli, 83 F.3d 984 (8th Cir. 1996), the Eighth Circuit vacated the sentence, finding he was not accountable for drugs seized from a co-conspirator’s residence because he had been in custody for the entire month before the government’s seizure. On remand, the court increased defendant’s offense by one level because the conspiracy distributed drugs near a “protected location.” The Eighth Circuit held that the limited remand permitted the district court to add a level for the sale of drugs in a protected location. The remand was not limited to merely reducing the drug quantity, but properly included determining the place of distribution. U.S. v. Santonelli, 128 F.3d 1233 (8th Cir. 1997).
8th Circuit upholds resentencing on drug count after § 924(c) conviction vacated. (197) Defendants were convicted of using a firearm in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c) and related drug crimes. They successfully moved to vacate their § 924(c) convictions in light of the Supreme Court’s decision in Bailey v. U.S., 116 S.Ct. 501 (1995). In two cases decided the same day, the Eighth Circuit relied on U.S. v. Harrison, 113 F.3d 135 (8th Cir. 1997) to hold that a district court has authority under § 2255 to resentence a prisoner on related convictions and to apply the § 2D1.1(b)(1) enhancement when it has vacated a § 924(c) conviction. Such a resentencing does not violate double jeopardy. Gardiner v. U.S., 114 F.3d 734 (8th Cir. 1997); Dossett v. U.S., 113 F.3d 148 (8th Cir. 1997).
8th Circuit holds court properly limited scope of resentencing in accordance with mandate. (197) Defendant was convicted of four federal drug crimes. In defendant’s first appeal, the Eighth Circuit affirmed the convictions, his sentence on count II, and several sentencing determinations made by the district court. It vacated the sentences for the other three counts and remanded them for resentencing. At resentencing, the district court determined that the appellate court opinion precluded it from revisiting its prior drug quantity, role in the offense, and obstruction of justice determinations. The Eighth Circuit held that the district court properly limited the scope of resentencing in accordance with its mandate. Once a sentence has been vacated and the case remanded, the district court can hear any relevant evidence on that issue that it could have heard at the first hearing. However, on remand, all issues decided by the appellate court become the law of the case. The prior appellate opinion found no error in and specifically affirmed the district court’s drug quantity determination and the enhancements for role in the offense and obstruction of justice. U.S. v. Behler, 100 F.3d 632 (8th Cir. 1996).
8th Circuit agrees remand was for limited purpose of recalculating restitution. (197) Defendant embezzled money while acting as a court receiver. The district court originally ordered him to pay restitution slightly in excess of $1 million. The Eighth Circuit remanded the case for the limited purpose of recalculating the amount of restitution. On remand, the district court reduced the restitution significantly. However, it refused to reconsider the original sentencing court’s upward departure. The Eighth Circuit agreed that the law of the case doctrine precluded the district court from reconsidering anything but restitution. Defendant did not introduce “substantially different” evidence on remand. The revised PSR did not present different substantive evidence, but merely a recalculation of the same evidence that was offered at the original sentencing hearing. While the previous decision affirming the upward departure was based on both the extent of defendant’s embezzlement and his position as an officer of the court, defendant’s corruption of his federal office was a sufficient basis for the departure. Moreover, even if it was not, defendant still conceded embezzling well over $1 million. U.S. v. Bartsh, 69 F.3d 864 (8th Cir. 1995).
9th Circuit finds no vindictiveness in imposing original sentence after reversal of some counts. (197) On appeal, the Ninth Circuit overturned defendant’s convictions for false statements to a bank and aggravated identity theft, but left intact convictions for bank and wire fraud, bankruptcy fraud, and money laundering. On remand, although aggravated money laundering carries a mandatory two-year sentence, the district court imposed the same sentence that it had originally imposed. The district court explained that at the original sentencing, it had varied downward from the Guidelines range because it thought that adding the two-year mandatory minimum for aggravated identity theft to the Guidelines range would have resulted in a sentence higher than necessary to address defendant’s conduct. The Ninth Circuit held that a presumption of vindictiveness did not apply to defendant’s resentencing because defendant’s overall sentence was not increased on remand. U.S. v. Horob, 735 F.3d 866 (9th Cir. 2013).
9th Circuit finds district judge’s participation in plea negotiations requires remand to new judge. (197) The Ninth Circuit held that the district court violated Federal Rule of Criminal Procedure 11(c)(1) by intruding on plea negotiations by telling the defendant that he would accept a plea agreement only if the defendant received a life sentence. The court then held that the case should be remanded for sentencing to a new district judge, explaining that the district judge had already expressed his view of an appropriate sentence and explained that it would only accept a plea agreement that embodied that sentence. U.S. v. Kyle, 734 F.3d 956 (9th Cir. 2013).
9th Circuit reviews discretionary refusal to reduce crack sentence based on amendment. (197) Defendant filed a motion under 18 U.S.C. § 3582(c)(2) seeking a reduction of his sentence. The district court found that defendant was eligible for a reduction but denied the motion on discretionary grounds, and defendant appealed. The Ninth Circuit rejected the government’s argument that the court of appeals lacked jurisdiction over the appeal of discretionary decisions under § 3582(c)(2). The court found that Ninth Circuit precedent allowing an appeal of discretionary decisions under § 3582(c)(2) had not been implicitly overruled by a recent Supreme Court decision. On the merits, however, the Ninth Circuit found no abuse of discretion. U.S. v. Dunn, 728 F.3d 1151 (9th Cir. 2013).
9th Circuit declines to assign case to new judge on remand. (197) At defendant’s sentencing for illegal reentry after deportation, the district court found that defendant had a prior conviction for a crime of violence and sentenced defendant to 30 months in prison. The court stated that even if it had not found that defendant’s prior conviction was a crime of violence, it would impose a 30-month sentence. The Ninth Circuit held that defendant’s prior conviction was not a crime of violence and that the district court’s error was not harmless. The court rejected defendant’s request to remand to a different district judge, finding that the district court’s comment that it would impose the same sentence did not show that resentencing in front of the same judge would result in the appearance of an injustice. U.S. v. Acosta-Chavez, 727 F.3d 903 (9th Cir. 2013).
9th Circuit allows factual development of claim on remand. (197) The Ninth Circuit found that the district court failed to justify a two-level enhancement under § 3B1.4 for using a minor in the commission of an offense. Defendant argued that on remand the district court could not consider new evidence. The Ninth Circuit rejected this argument, holding that the district court could conduct a full inquiry into the minor’s age when the minor entered the drug-trafficking conspiracy. U.S. v. Flores, 725 F.3d 1028 (9th Cir. 2013).
9th Circuit, in reversing, says court should consider defendant’s old age at resentencing. (197) Defendant, a 72-year-old woman, was convicted of distributing methamphetamine and was sentenced to 96 months, which was below the mandatory minimum of 120 months, based on her substantial assistance to the government. Defendant argued that the sentence was substantively unreasonable in part because a 96-month sentence meant she was likely to die in prison. After finding other errors in sentencing, the Ninth Circuit stated that on remand, the district court “should give more serious consideration to whether to impose a sentence that effectively condemns a 72-year-old woman who provided extensive assistance to the government to death in prison for an offense of the nature involved.” U.S. v. Lee, 725 F.3d 1159 (9th Cir. 2013).
9th Circuit establishes procedure for resentencing deported alien after sentence is reversed. (197) The district court initially sentenced defendant to 33 months, but then reconsidered and imposed a time-served sentence. Thereafter, the government deported defendant from the U.S. In the meantime, however, the government appealed the sentence of time served, and the court of appeals reversed and directed the court to impose a sentence of 33 months. Defendant then appealed, and the government conceded that defendant was entitled to relief from the 33-month sentence. The Ninth Circuit held that when the defendant has been deported but is entitled to seek resentencing, it will affirm the defendant’s sentence without prejudice to a later request to have his sentence vacated and to be resentenced. U.S. v. Aguilar-Reyes, 723 F.3d 1014 (9th Cir. 2013).
9th Circuit says failure to hold competency hearing required remand to new judge. (197) The Ninth Circuit held that the district court committed plain error in failing, sua sponte, to hold a competency hearing before sentencing defendant. The court also held that on remand the case should be assigned to a different district judge because the judge who imposed sentence would have a difficult time setting aside previously expressed views and because reassignment was advisable to preserve the appearance of justice. U.S. v. Dreyer, 693 F.3d 803 (9th Cir. 2012), superseded on denial of rehearing en banc, U.S. v. Dreyer, 705 F.3d 951 (9th Cir. 2013).
9th Circuit rejects effort to challenge conviction during sentencing remand. (197) In their first appeal, the Ninth Circuit affirmed defendants’ convictions, including their convictions for using or carrying a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c). Because defendants were sentenced before the Supreme Court’s decision in Booker, the Ninth Circuit remanded for “plenary resentencing.” On remand, defendants argued that they never actually possessed the firearms that formed the basis for their § 924(c) convictions, so they should have been sentenced under § 924(o), which makes it a crime to conspire to use a firearm during a crime of violence and carries a lower penalty than § 924(c). The Ninth Circuit held that its prior remand allowed defendants only to raise sentencing claims and that their argument concerning the sentence they received on their § 924(c) convictions was an improper challenge to their convictions for that offense. U.S. v. Luong, 627 F.3d 1306 (9th Cir. 2010).
9th Circuit declines to vacate sentence on third count after remanding for error on two counts. (197) Defendant was convicted of three counts of violating three different statutes. On appeal, the Ninth Circuit held that the district court had erred in calculating the Guidelines range for two of the counts, and it remanded to allow the district court to properly calculate the Guidelines range for those counts. Defendant argued that the court of appeals should vacate all of his sentences and allow the district court to resentence him on all three counts on remand. The Ninth Circuit held because there was no reason to believe that on remand the district court would impose a lower sentence on the third count, it declined to vacate and remand the sentence on that count. U.S. v. Evans-Martinez, 611 F.3d 635 (9th Cir. 2010).
9th Circuit reaffirms that court on remand may resentence on all counts. (197) On defendant’s appeal, the Ninth Circuit vacated three of six counts on which defendant was convicted and remanded for a new trial. On remand, the government dismissed the vacated counts. The district court then reexamined the sentence on all three counts, and it imposed a lower sentence on two of the counts. Nevertheless, on appeal, defendant argued that the district court lacked jurisdiction on remand to reexamine the entire sentence. The Ninth Circuit reaffirmed prior cases holding that when a defendant is sentenced to multiple counts and one is later vacated on appeal, the sentencing package becomes “unbundled,” and the district court has the authority to resentence on all counts. U.S. v. Avila-Anguiano, 609 F.3d 1046 (9th Cir. 2010).
9th Circuit finds increase in supervised release after new trial was not vindictive. (197) Defendant was convicted of traveling with the intent to engage in a sexual act with a minor, in violation of 18 U.S.C. § 2423(b). The district court imposed a five-year prison term, to be followed by five years’ supervised release. The court of appeals reversed defendant’s conviction. Defendant was again convicted at a retrial. At sentencing, the district court (in the person of a different district court judge) again imposed a five-year prison sentence, but ordered defendant to serve a lifetime term of supervised release. The Ninth Circuit found that the increase in supervised release term was not vindictive in light of the change in district court judges and evidence that defendant posed an ongoing threat to children. U.S. v. Curtin, 588 F.3d 993 (9th Cir. 2009).
9th Circuit says Ameline remand may not consider post-sentence rehabilitation. (197) After the Supreme Court’s decision in Booker, the Ninth Circuit in U.S. v. Ameline, 409 F.3d 1073 (2005), authorized limited remands for defendants who were sentenced before Booker. In an Ameline remand, the district court is to determine whether it would have imposed the same sentence had it known that the Sentencing Guidelines were advisory. After his case was remanded to the district court under Ameline, defendant asked the district court to reduce his sentence because of his post-sentence rehabilitation. The district court concluded that it could not consider post-sentence rehabilitation in an Ameline remand, and the Ninth Circuit affirmed. The court held that in an Ameline remand, the district court must view the defendant’s sentence based on the information it had at the time of sentencing. U.S. v. Bernardo Sanchez, 569 F.3d 995 (9th Cir. 2009).
9th Circuit finds error in ruling on self-representation request on remand was harmless. (197) Defendant was convicted and appealed. On appeal, the Ninth Circuit granted a limited remand to determine whether defendant should be resentenced under the advisory Sentencing Guidelines regime. On remand, after briefing on whether defendant should be resentenced, defendant moved to represent himself. The district court denied that motion because briefing was complete, but it stated that it would consider all the pleadings that defendant had filed. The Ninth Circuit held that the district court erred in failing to determine whether defendant’s request to represent himself was timely, not for purposes of delay, unequivocal, knowing, and competent. Because that error occurred during a remand in the sentencing phase, the court held that it was subject to harmless-error analysis. The court of appeals found clear beyond a reasonable doubt that the error was harmless. U.S. v. Maness, 566 F.3d 894 (9th Cir. 2009).
9th Circuit finds unreasonable one-month reduction in sentence after finding of unreasonableness. (197) Defendant was convicted of misappropriation of federal program funds, in violation of 18 U.S.C. § 666(a)(1)(A). The district court sentenced defendant to 16 months’ imprisonment. On appeal, the Ninth Circuit held that defendant’s sentence was substantively unreasonable because the district court failed to take into account her lack of criminal record, prompt return of the funds, remorse prior to the filing of criminal charges, and belief that the stolen funds represented compensation for work she had performed. On remand, the district court stated that it believed its original sentence was reasonable and imposed a 15-month sentence. A divided panel of the Ninth Circuit held that the district court’s imposition of sentence violated “both the spirit and express instructions” of its mandate. The court ordered the case reassigned to a different judge on remand. U.S. v. Paul, 561 F.3d 970 (9th Cir. 2009).
9th Circuit remands to different judge where court reviewed presentence report before accepting plea. (197) Defendant, who was charged with first-degree murder, agreed to plead guilty to involuntary manslaughter. The plea agreement reserved defendant’s right to appeal the district court’s denial of his motion to dismiss the indictment. At the change-of-plea hearing, the district court stated that it was conditionally accepting defendant’s guilty plea subject to the court’s review of the presentence report. At sentencing, the court ruled that it would not accept the plea and set the case for trial. Defendant then petitioned for a writ of mandamus compelling the court to accept the plea. The Ninth Circuit held that the district court had acted within its discretion under Federal Rule of Criminal Procedure 11(a)(2) in rejecting the defendant’s conditional plea, but that when the court reviewed the presentence report it violated Federal Rule of Procedure 32(e)(1), which bars the court from reviewing the PSR until the defendant has pleaded guilty. The court explained that because the district court did not consent to defendant’s attempt to plead guilty, defendant had not pleaded guilty within the meaning of Rule 32. The case was remanded with instructions to assign to a different judge for trial or plea. In re Gallaher, 548 F.3d 713 (9th Cir. 2008).
9th Circuit holds that prior panel’s ruling was not law of the case. (197) At defendant’s sentencing on his conviction for illegal reentry after deportation, in violation of 8 U.S.C. § 1326, the district court found that defendant’s prior state conviction constituted an aggravated felony. In so ruling, the court relied on the complaint charging the prior state offense and the plea colloquy at which defendant pleaded guilty to that offense. On appeal, a panel of the Ninth Circuit held that the complaint and plea colloquy did not establish that the defendant’s prior offense was an aggravated felony. The panel remanded the case so that the district court could determine whether police reports concerning the offense could provide a basis to conclude that the prior offense was an aggravated felony. On remand, the district court relied on the police reports to find that the prior offense was an aggravated felony. In defendant’s renewed appeal, he argued that the first panel decision barred the district court from relying on the police reports. The Ninth Circuit held that its prior decision did not decide whether the district court could rely on the police reports and thus that the prior decision did not establish the law of the case on that issue. U.S. v. Almazan-Becerra, 537 F.3d 1094 (9th Cir. 2008).
9th Circuit reverses increased sentence that exceeded scope of Booker remand. (197) Pursuant to a limited remand under U.S. v. Ameline, 409 F.3d 1073 (9th Cir. 2005) (en banc), the district court struck the defendant’s conviction and sentence as to Count 4, and declared that it would not have imposed a different sentence on the other counts if it had known that the Sentencing Guidelines were advisory. However, the district court then reconsidered defendant’s sentence as to Count 3, increasing it substantially. On appeal, the Ninth Circuit reversed, holding that the panel had expressly limited the scope of the remand and therefore the district court was without authority to reexamine other sentencing issues on remand. The district court was instructed to reimpose the original sentence except for Count 4, and was ordered to make no adjustment with respect to any other count. U.S. v. Davis, 519 F.3d 926 (9th Cir. 2008).
9th Circuit finds no unfairness in 16-year sentence after 18-year sentence was vacated. (197) At defendant’s initial California state court sentencing for sexually molesting a minor, the trial court found that defendant’s prior conviction constituted a “strike.” On the basis of that strike, the court doubled defendant’s sentence, imposed a five-year enhancement, and sentenced defendant to 18 years in prison. That sentence represented a lower end sentence under California’s three-level sentencing regime. The California Court of Appeal held that the prior conviction did not count as a strike, vacated defendant’s sentence, and remanded for resentencing. On remand, the trial court imposed a 16-year sentence. With the increase mandated by defendant’s strike removed, that sentence represented an “upper term” sentence. In federal habeas proceedings, defendant argued that imposition of a higher sentence on remand violated his due process and double jeopardy rights. The Ninth Circuit rejected the argument, holding that the sentence imposed on remand did not violate double jeopardy and was not fundamentally unfair. Gonzalez v. Knowles, 515 F.3d 1006 (9th Cir. 2008).
9th Circuit says issues unresolved in directing Ameline remand may be raised in later appeal. (197) Defendant appealed his sentence, raising challenges to the district court’s guideline calculations and its restitution order. While his appeal was pending, the Supreme Court held in Booker that the mandatory Sentencing Guidelines were unconstitutional. The Ninth Circuit resolved the restitution issue that defendant raised and remanded for reconsideration of defendant’s sentence under the advisory Guidelines pursuant to its decision in U.S. v. Ameline, 409 F.3d 1073 (2005). On remand, the district court held that it would not have imposed a different sentence under the advisory guidelines. In defendant’s renewed appeal, the government argued that the court of appeals had implicitly resolved all of the issues that defendant raised in his initial appeal. The Ninth Circuit held that its failure to address defendant’s sentencing issues before the Ameline remand was not an implied ruling on those issues and that a sentencing challenge raised but not decided in the first appeal is preserved for review after the Ameline remand. U.S. v. Thornton, 511 F.3d 1221 (9th Cir. 2008).
9th Circuit declines to consider new issues raised after Ameline remand. (197) Defendant’s appeal of his sentence was pending when the Supreme Court decided Booker. Pursuant to U.S. v. Ameline, 409 F.3d 1073 (9th Cir. 2005), the Ninth Circuit remanded to allow the district court to decide whether it would have imposed a different sentence under the advisory Guidelines. On remand, defendant submitted evidence that his physical condition had declined since his initial sentencing, argued that the Bureau of Prisons could not treat his illnesses, and asked the court to order an independent medical evaluation. The district court considered defendant’s submission but declined to order an independent medical evaluation and held that its sentence would not be any different under the advisory Guidelines. In defendant’s renewed appeal, the Ninth Circuit held the district court adequately considered defendant’s medical condition and that other issues concerning defendant’s health were not properly before the court of appeals because those issues had not been raised at defendant’s initial sentencing hearing. U.S. v. Thornton, 511 F.3d 1221 (9th Cir. 2008).
9th Circuit says that resentencing on conspiracy count may rely on findings made for vacated CCE count. (197) A jury found defendant guilty of operating a continuing criminal enterprise (CCE) and of drug-trafficking conspiracy. As part of its verdict on the CCE count, the jury made findings concerning the quantity of drugs involved in the CCE offense. The district court vacated the conspiracy conviction because the conspiracy was a lesser-included offense of CCE. After an appeal, the CCE conviction was vacated because it rested on an improper predicate offense. The district court then reinstated the conspiracy conviction and relied on the jury’s findings for the CCE count to calculate defendant’s sentence on the conspiracy count. The Ninth Circuit held that the vacation of the improper predicate offense did not preclude the district court from relying on the jury’s findings on the CCE count in sentencing defendant on the conspiracy count. U.S. v. Cabaccang, 481 F.3d 1176 (9th Cir. 2007).
9th Circuit says district court erred in failing to conduct full resentencing on remand. (197) For defendants who were sentenced before the Sentencing Guidelines were rendered advisory in U.S. v. Booker, 543 U.S. 220 (2005), the Ninth Circuit has adopted a “limited remand” procedure. The court of appeals uses that procedure when the defendant failed to object to the use of the mandatory guidelines and the record is insufficient for the court to determine whether the district court would have imposed a different sentence if it had known that the guidelines were advisory. In defendant’s case, the court of appeals concluded from the district court’s comments at defendant’s sentencing that there was a reasonable probability that defendant would have received a different sentence, and it vacated and remanded for a full resentencing. On remand, the district court used the limited remand procedure and concluded that it would have imposed the same sentence if it had known the guidelines were advisory. The Ninth Circuit held that its mandate required the district court to conduct a full resentencing and that the court erred in using the limited remand procedure. U.S. v. Perez, 475 F.3d 1110 (9th Cir. 2007).
9th Circuit holds that defendant has no right of allocution during limited remand. (197) Defendant was sentenced before the decision in U.S. v. Booker, 543 U.S. 220 (2005). On appeal, pursuant to U.S. v. Ameline, 409 F.3d 1073 (9th Cir. 2005), the Ninth Circuit remanded to allow the district court to determine whether it would have imposed a lower sentence if it had known that the guidelines were advisory. On remand, the district court solicited written submissions from the parties, but denied defendant’s request for a full sentencing hearing and reaffirmed defendant’s original sentence. In a new appeal, defendant argued that he had the right to allocution during the limited remand hearing. The Ninth Circuit held that defendant had no constitutional or statutory right to be present during the limited remand procedure established in Ameline and therefore had no right to allocution. U.S. v. Silva, 472 F.3d 683 (9th Cir. 2007).
9th Circuit holds that new challenges to sentence may not be raised in Ameline remand. (197) In U.S. v. Ameline, 409 F.3d 1073 (9th Cir. 2005), the court held that when a defendant failed to challenge his sentence in the district court prior to the decision in U.S. v. Booker, 543 U.S. 220 (2005), but sought the benefit of that decision before his appeal became final, the court of appeals would order a limited remand to allow the district court to determine whether it would have imposed the same sentence under an advisory guidelines regime. The Ninth Circuit held that during a limited “Ameline remand,” a defendant may not raise new challenges to his sentence that he had not previously raised. U.S. v. Combs, 470 F.3d 1294 (9th Cir. 2006).
9th Circuit says that district court’s conclusion that it would have imposed same sentence under Booker is unreviewable. (197) Defendant was sentenced before the decision in U.S. v. Booker, 543 U.S. 220 (2005). On appeal, he did not challenge his sentence, and the court of appeals affirmed. After Booker was decided, defendant filed a timely petition for rehearing seeking the benefit of Booker. Pursuant to U.S. v. Ameline, 409 F.3d 1073 (9th Cir. 2005), the court of appeals remanded to allow the district court to determine whether it would have imposed a lower sentence if it had known that the guidelines were advisory. The district court concluded that it would not have imposed a materially different sentence. The Ninth Circuit held that a district court’s decision in an “Ameline remand” that it would have imposed the same sentence under an advisory guideline system is “effectively unreviewable” and subject to “absolute deference,” as long as the district court understood the scope of its discretion after Ameline and Booker. U.S. v. Combs, 470 F.3d 1294 (9th Cir. 2006).
9th Circuit says government can seek enhancements that it thought were barred by Blakely. (197) Defendant’s sentencing hearing occurred between the Supreme Court’s decisions in Blakely and Booker. Because the government had not alleged two potential sentencing enhancements in the indictment, it asked the district court not to apply those enhancements. The Ninth Circuit vacated defendant’s sentence and remanded for resentencing. The court of appeals held that the government was not judicially estopped from asking for the sentencing enhancements that it had asked the court not to apply at the prior sentencing because the government never took the position that the enhancements did not apply. U.S. v. Lence, 466 F.3d 721 (9th Cir. 2006).
9th Circuit holds that counsel’s view must be sought during limited remand. (197) Because defendant was sentenced before Booker, the Ninth Circuit ordered a limited remand of his case to allow the district court to determine whether it would have imposed the same sentence under the advisory guidelines scheme. On remand, the district court did not solicit the views of defendant’s counsel or the government and instead simply stated that it would re-impose the same sentence it had originally imposed if the sentence were vacated. The Ninth Circuit held that when the court orders a limited remand to determine whether the district court would have imposed the same sentence after Booker, the district court must obtain the views of counsel. U.S. v. Montgomery, 462 F.3d 1067 (9th Cir. 2006).
9th Circuit finds no vindictiveness in higher sentence on remand. (197) At defendant’s initial sentencing for assault, the district court departed upward from the guideline range and imposed a sentence of 41 months. On appeal, the Ninth Circuit held that the facts did not support an upward departure and vacated the sentence. Before defendant was resentenced, the Supreme Court rendered the guidelines advisory in U.S. v. Booker, 125 S.Ct.738 (2005). On remand, the district court considered the sentencing factors set forth in 18 U.S.C. § 3553(a) and imposed a sentence of 48 months. The Ninth Circuit found that the higher sentence on remand did not raise a presumption of vindictiveness because the court had been released by the mandatory guidelines by Booker. U.S. v. Bad Marriage, 439 F.3d 534 (9th Cir. 2006).
9th Circuit says remand to sentence “within appropriate range” did not require sentence within range calculated at first sentencing. (197) At defendant’s sentencing for assault causing serious bodily injury, the district court found that defendant’s criminal history score underrepresented his prior criminal history and departed upward. The Ninth Circuit vacated, finding that the upward departure was not justified by the facts and remanded for a sentence “within the appropriate range.” On remand, after U.S. v. Booker, 125 S.Ct. 738 (2005), rendered the guidelines advisory, the district court analyzed the applicable factors under 18 U.S.C. § 3553 and imposed a higher sentence than it had originally imposed. In defendant’s second appeal, the Ninth Circuit held that its prior mandate did not require the district court to sentence the defendant within the guideline range as the court calculated it at defendant’s initial sentencing and that, in any event, Booker was intervening controlling authority that excused the district court from following the law of the case. U.S. v. Bad Marriage, 439 F.3d 534 (9th Cir. 2006).
9th Circuit holds that failure to allow allocution on remand requires vacating sentence. (197) The Ninth Circuit vacated defendant’s sentence on two grounds and remanded for resentencing. At resentencing, the district court conducted an evidentiary hearing on defendant’s role in the offense and reconsidered the schedule of payments for defendant’s restitution obligation. The court did not address defendant personally or permit him to speak, as required by Federal Rule of Criminal Procedure 32(i)(4)(A)(ii). The Ninth Circuit held that because the district court could have lowered defendant’s sentence in response to allocution, the failure to accord defendant his right to allocution was not harmless. It therefore vacated defendant’s sentence. U.S. v. Gunning, 401 F.3d 1145 (9th Cir. 2005).
9th Circuit reverses downward departure for third time and reassigns case (197) At defendant’s initial sentencing on drug trafficking charges, the district court departed downward on the ground of aberrant behavior. The Ninth Circuit reversed and remanded because the district court failed to make adequate findings to support the departure. On remand, the district court again departed downward to the same sentence it initially imposed, this time because defendant played a minimal role in the offense. The Ninth Circuit reversed and remanded because the record did not support the departure. On remand, the district court relied on the existing record to impose the same sentence it had previously imposed. The Ninth Circuit reiterated its conclusion that the record was insufficient to support a departure and reversed and remanded. The court of appeals agreed with the government that in light of the history of the case and the court’s previous remands the case should be reassigned to a different judge on remand. U.S. v. Atondo-Santos, 385 F.3d 1199 (9th Cir. 2004).
9th Circuit finds no double jeopardy violation in sentence imposed on remand. (197) Defendant was convicted of mail fraud, bank fraud, and perjury. He was sentenced to 42 months imprisonment on the bank fraud count and concurrent 12-month terms on the other two counts. On collateral attack, his bank fraud conviction was reversed. At resentencing, defendant had already served his 42-month term of imprisonment and was on supervised release. On remand, the district court increased defendant’s sentence on the mail fraud count to 42 months. The Ninth Circuit held that defendant did not have an expectation of finality in his original 12-month sentence on the mail fraud count because that sentence was part of a “package” imposed to bring the defendant’s sentence within the guideline range. Because the district court would have originally imposed the same sentence if defendant had not been convicted of bank fraud, defendant’s sentence on remand did not violate the Double Jeopardy Clause. U.S. v. Radmall, 340 F.3d 798 (9th Cir., 2003).
9th Circuit finds vindictiveness in parole board’s increase in defendant’s sentence after successful habeas petition. (197) In 1986, a state court sentenced defendant to seven 15-year minimum prison terms. At his initial 1987 parole hearing, the Oregon parole board applied a newly enacted rule that allowed it to override one or more of the minimum terms. It then used a “matrix” – also newly enacted – to set a release eligibility date. The board overrode three of the minimum terms and set a release eligibility date of 2017. On federal habeas review, the Ninth Circuit held that the board had erred in using the new “matrix” to set defendant’s release date. On remand, the board asked defendant whether he wanted it to use the rules in effect before 1987, and defendant answered in the affirmative. The board then used the pre-1987 rules, which allowed the board to choose between overriding all of defendant’s minimum prison terms or none of them. Using those rules, the board set defendant’s release date in 2062. On federal habeas review, the Ninth Circuit held that defendant had not knowingly chosen to use the “all or nothing” approach in effect before 1987; that the board’s increase in defendant’s release eligibility date was presumptively vindictive; and that the board had failed to rebut the presumption of vindictiveness. Nulph v. Cook, 333 F.3d 1052 (9th Cir. 2003).
9th Circuit sua sponte reassigns case to different judge on remand. (197) Defendant was convicted of assault with intent to murder and using a firearm during and in relation to a crime of violence based on her attempt to murder her husband. At sentencing, the district court departed downward and imposed a sentence of one day on the assault conviction. On the government’s appeal, the Ninth Circuit held that the district court relied on improper grounds in determining the extent of the departure. On its own motion, the court then exercised its supervisory authority to direct that the case be reassigned to a different judge on remand. It found that the district court judge would have difficulty disregarding the view that a one-day sentence was appropriate. U.S. v. Working, 287 F.3d 801 (9th Cir. 2002).
9th Circuit, en banc, holds court may not rely solely on PSR to decide if priors are violent felonies, but resentencing is on “open record.” (197) The PSR said that defendant was an Armed Career Criminal because he had prior convictions for burglary and attempted burglary. The PSR gave a description of these priors, but did not cite the specific statutes of conviction or include certified copies of the judgments. Sitting en banc, the Ninth Circuit held that in deciding whether a statute qualifies as a violent felony under the ACCA, the court may not rely “merely on the PSR,” but may use a “variety of sources, including the statutes of conviction themselves,” “copies of the judgments of conviction,” or “other documentary evidence that ‘clearly establishes’ the statutes under which [defendant] was convicted or the elements of those statutes.” The en banc court rejected the panel’s limitation on remand to “the record as it now stands.” Instead, the court held that “as a general matter, if a district court errs at sentencing, [it] will remand for resentencing on an open record – that is, without limitation on the evidence that the district court may consider.” The court noted, however, that it may limit the issues that a court considers on remand and that it may be appropriate to limit the evidence on remand “if the government engaged in deceptive, obstructive, or otherwise inappropriate conduct.” U.S. v. Matthews, 278 F.3d 880 (9th Cir. 2002) (en banc).
9th Circuit holds that government’s failure to appeal would not bar argument on remand. (197) At defendant’s sentencing for being a felon in possession of a firearm, the district court held that defendant had three prior convictions for violent felonies and imposed a 15-year mandatory sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e). The court declined “in the interest of judicial economy” to decide whether a fourth conviction, for grand theft, would also qualify as a violent felony. The Ninth Circuit found that one of the convictions on which the district court relied did not constitute a violent felony and remanded for resentencing. It rejected defendant’s contention that by failing to cross-appeal, the government had waived its right to argue at resentencing that his grand theft conviction constituted a violent felony. Instead, the court held, the district court was “free to review the entire sentencing calculus.” U.S. v. Tighe, 266 F.3d 1187 (9th Cir. 2001).
9th Circuit holds that reversal of one conviction “unbundled” the sentencing package. (197) Defendant argued that the district court lacked jurisdiction to resentence him after his continuing criminal enterprise conviction was reversed on appeal because the appellate court did not explicitly remand the case for resentencing. The Ninth Circuit rejected the argument, holding that under U.S. v. Washington, 172 F.3d 1116, 1118 (9th Cir. 1999), the mandate “is controlling as to all matters within its compass, but leaves to the district court any issue not expressly or impliedly disposed of on appeal.” Moreover, when a defendant is sentenced on multiple counts and one of them is later vacated on appeal, the sentencing package becomes “unbundled,” and the district court then has the authority to put together a new sentencing package. See U.S. v. McClain, 133 F.3d 1191 (9th Cir. 1998); U.S. v. Barron, 172 F.3d 1153, 1160 (9th Cir. 1999) (en banc). The mandate did not prohibit resentencing, and therefore the district acted within its authority in resentencing anew on the affirmed convictions. U.S. v. Ruiz-Alvarez, 211 F.3d 1181 (9th Cir. 2000).
9th Circuit allows complete resentencing on remand despite “limited purpose” language. (197) In the first appeal, the court vacated the sentence and remanded “for the limited purpose of recalculating [the] base offense level under § 2J1.2, without applying the cross-reference to § 2X1.3,” and finally directed the district court to “resentence accordingly.” On remand, the district court resentenced without applying the cross-reference, but then departed upward by thirteen levels. In this second appeal, the Ninth Circuit upheld the departure, ruling that the mandate did not proscribe a departure. When the district court resentenced defendant, it put together a new sentencing “package.” Judge Betty Fletcher dissented, arguing that the “limited purpose” of the remand prohibited the departure. U.S. v. Washington, 172 F.3d 1116 (9th Cir. 1999).
9th Circuit upholds resentencing for possession of gun after Bailey reversal. (197) In U.S. v. Handa, 122 F.3d 690, 692 (9th Cir. 1997), the Ninth Circuit held that when a defendant succeeds in having his conviction for using a firearm under 18 U.S.C. § 924(c) vacated under Bailey v. U.S., 516 U.S. 137 (1995), the district court has authority to resentence him and may increase his sentence on the underlying drug offense for possessing the gun. In this case, defendant argued that Handa was distinguishable because the § 924(c) conviction was set aside pursuant to 28 U.S.C. § 2255, whereas here the parties simply filed a stipulation which they asked the court to treat as the “functional equivalent” of a § 2255 motion. The Ninth Circuit rejected the distinction, noting that a district court does not have inherent power to resentence defendants at any time. U.S. v. Minor, 846 F.2d 1184, 1187 (9th Cir. 1988). Therefore, the only way the court could obtain jurisdiction was under § 2255. Therefore, Handa was completely applicable. U.S. v. Hock, 172 F.3d 676 (9th Cir. 1999).
9th Circuit says defense entitled to debriefing report given to judge ex parte. (197) Before sentencing, the government gave the court a copy of the FBI’s written report of defendant’s debriefing sessions. The report was filed in camera, “to avoid its dissemination and prevent compromising ongoing investigations.” The report detailed defendant’s statements regarding his co-conspirators and included a number of statements impugning defendant’s veracity. The district court refused to make the report available to defendant, stating that it was not relying on the report for purposes of an upward departure. On appeal, the government conceded that “because it filed the debriefing report with the sentencing report, defendant’s counsel should properly have been afforded access to that document.” Moreover, the government agreed to disclose the report to the defense subject to a protective order on remand. The Ninth Circuit held that such disclosure was appropriate. It is improper for the prosecution to make, or for the court to receive from the prosecution, an ex parte communication bearing on the sentence. Moreover, because the government adamantly opposed disclosure of a separate paralegal declaration that was part of the submission to the judge, the court ordered that the case be reassigned to a different judge on remand. U.S. v. Mikaelian, 168 F.3d 380 (9th Cir. 1999).
9th Circuit says stricter conditions of release on resentencing did not violate double jeopardy. (197) Defendant argued that the district court violated double jeopardy by imposing stricter conditions of release at resentencing than had been originally imposed. The Ninth Circuit rejected the argument, reiterating that “a resentencing mandate from an appellate court . . . does away with the entire initial sentence, and authorizes the district court to impose any sentence which could lawfully have been imposed originally . . . double jeopardy is not implicated.” U.S. v. Moreno-Hernandez, 48 F.3d 1112, 1116 (9th Cir. 1995). Thus, the district court was free to impose the additional conditions of supervised release. U.S. v. Allen (98-30002), 153 F.3d 1037 (9th Cir. 1998).
9th Circuit permits departure from law of the case where prior ruling was clearly erroneous. (197) The law of the case doctrine provides that “a court is generally precluded from considering an issue that has already been decided by the Supreme Court, or a higher court in the identical case.” U.S. v. Alexander, 106 F.3d 874, 876 (9th Cir. 1997). However, a court may have discretion to depart from the law of the case if (1) the first decision was clearly erroneous; (2) an intervening change in the law has occurred; (3) the evidence on remand is substantially different; (4) other changed circumstances exist; or (5) a manifest injustice would otherwise result. In the present case, the Ninth Circuit held that the district court was justified in departing from the law of the case because its previous conclusion in U.S. v. Sherwood, 98 F.3d 402 (9th Cir. 1996) was clearly erroneous. Contrary to that opinion, the record did support a finding that the kidnapping victim’s life was threatened. Accordingly, on appeal after resentencing the Ninth circuit upheld the district court’s departure from the law of the case to enhance defendants’ sentence for threatening the life of the victim. U.S. v. Cuddy, 147 F.3d 1111 (9th Cir. 1998).
9th Circuit declines to remand to a different judge. (197) The Ninth Circuit held that three criteria are relevant in deciding whether to remand a case to a different judge: “(1) whether the original judge could reasonably be expected to put out of his mind previously expressed views or findings found to be erroneous; (2) whether reassignment is advisable to preserve the appearance of justice; and (3) whether reassignment would entail waste or duplication of effect out of proportion to the gain realized in preserving the appearance of fairness.” In this case, the court expressed “full confidence” in the district judge’s impartiality and denied the request even though this was the second time the sentence had been reversed. U.S. v. Nagra, 147 F.3d 875 (9th Cir. 1998).
9th Circuit vacates higher sentence on remand as vindictive. (197) Defendant’s original sentence of six months in custody (only one of which had to be served in prison) was reversed by the district court because the magistrate judge did not allow allocution. On remand, the magistrate judge resentenced the defendant to four months in custody, all to be served in prison (on the mainland). The magistrate judge said that he was “not punishing her for taking the appeal,” but that the circumstances had changed and he could no longer “shock her” by putting her in jail over the holidays. In reversing, the Ninth Circuit said the record must show more than the judge simply articulated some reason for imposing a more severe sentence. “The reason must have at least something to do with conduct or an event, other than the appeal, attributable in some way to the defendant.” The magistrate’s reasoning in this case did not overcome the presumption of vindictiveness. However the court rejected defendant’s request to reassign the case to a different magistrate judge on remand. U.S. v. Rapal, 146 F.3d 661 (9th Cir. 1998).
9th Circuit reaffirms that resentencing on retroactive amendment did not allow “safety valve” credit. (197) Defendant obtained a reduction in his sentence for growing marijuana plants based on a retroactive amendment that reduced the marijuana equivalency from one kilogram per plant to one-tenth of a kilogram per plant. However, this reduced his sentence by only one month because he remained subject to a ten-year statutory minimum sentence. He argued that the district court should have applied the “safety valve” provision in 18 U.S.C. § 3553(f), even though it was enacted after his original sentence and is not retroactive. In its original opinion, 129 F.3d 1066 (9th Cir. 1997), the Ninth Circuit rejected the argument, refusing to “apply through the guidelines a retroactivity of the safety valve statute that is contrary to the plain words of that statute.” Moreover, the modification of defendant’s sentence pursuant to § 1B1.10(c) “does not amount to a new sentencing for the purposes of the safety valve statute.” In denying rehearing, the majority said they were bound by U.S. v. Mullanix, 99 F.3d 323 (9th Cir. 1996), even though two other circuits are to the contrary. U.S. v. Clark, 110 F.3d 15 (6th Cir. 1997) and U.S. v. Mihm, 134 F.3d 1353 (8th Cir. 1998). Judge Canby did not agree that Mullanix is controlling, and therefore would have granted rehearing. U.S. v. Stockdale, 139 F.3d 767 (9th Cir. 1998), amending 129 F.3d 1066 (9th Cir. 1997).
9th Circuit permits resentencing after vacating gun count even after drug sentence is completed. (197) In the first appeal in this case, the court reversed defendant’s conviction based on Bailey v. U.S., 116 S.Ct. 501 (1995), for using a weapon in relation to a drug trafficking offense, under 18 U.S.C. § 924(c). On remand, the district court refused to enhance his sentence for possession of a weapon during the drug trafficking offense under guideline section 2D1.1(b)(1), because he had already completed the portion of the sentence attributable to the drug trafficking offense. In this second appeal, the Ninth Circuit reversed and remanded for resentencing on the drug trafficking offense. Under U.S. v. Handa, 122 F.3d 690 (9th Cir. 1997), double jeopardy is not violated where a defendant is resentenced after his § 924(c) conviction and sentence are vacated. The fact that the defendant here had completed his sentence on the drug trafficking conviction was “irrelevant.” He was sentenced to a “single unified sentence,” and it was undisputed that the offense level for his drug trafficking conviction would have been increased by two levels but for the fact that he was also sentenced for the § 924(c) violation. Because the sentences were interrelated, defendant had no legitimate expectation of finality and therefore resentencing on the drug trafficking sentence would not violate double jeopardy. U.S. v. McClain, 133 F.3d 1191 (9th Cir. 1998).
9th Circuit reverses where court failed to give reason for consecutive sentence. (197) Under guideline § 5G1.3, application note 3, the district court had discretion to make defendant’s federal sentence consecutive or concurrent to his Texas sentence. However, there was no indication that it gave any consideration to making the sentence concurrent, nor did the court say why it made the sentence consecutive. Accordingly, the Ninth Circuit vacated the sentence and remanded for resentencing. The court vacated the sentence entirely, “not because we have identified other errors, but only so that the district court need not consider the scope of our mandate in the course of resentencing.” U.S. v. Otis, 127 F.3d 829 (9th Cir. 1997).
9th Circuit remands to a different judge after reversing second aberrant behavior departure. (197) Although defendant committed at least twelve separate bank robberies over a two month period, the district court found his behavior was aberrant and departed downward to five years’ probation. This was an illegal sentence, because under 18 U.S.C. §3561(a), Class B felons must be sentenced to a term of imprisonment. Accordingly, his sentence was reversed and the case was remanded for resentencing. On remand, the district court continued the sentencing hearing for two and a half years, allowing defendant to remain at liberty until he eventually fled to Mexico. He was not arrested until eight months later. On resentencing, the court again departed downward for aberrant behavior and sentenced him to time served with five years’ probation. The Ninth Circuit again reversed and ordered that on remand, the case be assigned to another judge for resentencing. U.S. v. Colace, 126 F.3d 1229 (9th Cir. 1997).
9th Circuit allows resentencing on affirmed count after reversal of other two counts. (197) Defendant was originally sentenced to 63 months imprisonment, concurrent on all three counts. He was given the lowest possible sentence, and the court invoked the “safety valve” provision, 18 U.S.C. § 3553(f)(1)-(5), to reduce his sentence even further. This suggested that the district court regarded the sentences on all three counts as part of a single “sentencing package.” In these circumstances, the Ninth Circuit ruled that the district court should have the opportunity to reconsider defendant’s sentence on the affirmed count, and the case was remanded for resentencing. U.S. v. Barnes, 125 F.3d 1287 (9th Cir. 1997).
9th Circuit, on rehearing, says court can resentence after vacating gun count under Bailey. (197) Following the decision in Bailey v. U.S., 116 S.Ct. 501 (1995), the district court granted defendant’s 18 U.S.C. § 2255 motion and vacated his conviction for using a firearm in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c). However, the district court held it had no power to resentence defendant so as to enhance the sentence on the remaining drug count for possession of the gun under guideline § 2D1.1. On appeal, the Ninth Circuit reversed, holding that in granting a motion under 28 U.S.C. § 2255, the district court has the power to resentence or correct the sentence as may be appropriate. In reaching this result, the Ninth Circuit agreed with seven other circuits. In particular, the court agreed with the Seventh Circuit’s reasoning in U.S. v. Binford, 108 F.3d 723, 728 that the sentence on a multiple count indictment should be viewed as a “package.” When part of the sentence is set aside as illegal, the package is “unbundled,” and the district court is free to put together a new sentencing package for the crimes of which he is still convicted. This does not violate double jeopardy. U.S. v. Handa, 122 F.3d 690 (9th Cir. 1997).
9th Circuit says granting 2255 motion did not require court to reconsider entire sentence. (197) The district court granted defendant’s § 2255 motion but concluded that “the only issue to be decided at the resentencing hearing is the propriety of the $1,000 fine.” Before resentencing, the guidelines were amended to add the “safety valve” in § 5C1.2, and defendant argued that the district court was required to resentence de novo because his initial sentence was procedurally improper. The Ninth Circuit rejected the argument, noting that 28 U.S.C. § 2255 expressly provides that a court may “resentence him or grant a new trial or correct a sentence as may appear appropriate.” While the district court was permitted to consider all aspects of the sentence it was not required to do so. Judge Boochever dissented, arguing that the trial court misunderstood that it had discretion to resentence defendant in accordance with the then-current guideline. U.S. v. Jones, 114 F.3d 896 (9th Cir. 1997).
9th Circuit says court may consider post-sentencing information in resentencing. (197) After sentencing, defendant filed a motion under 28 U.S.C. § 2255 claiming he had not been given enough time to read the presentence report before sentencing, and therefore had not been able to present accurate financial information. The district court granted his petition but ordered that “the only issue to be decided at the resentencing hearing is the propriety of the $1,000 fine.” At resentencing, the judge re-imposed the $1,000 fine after noting that defendant had improved his financial situation, post-sentencing, by paying down a mortgage. On appeal, defendant argued that under U.S. v. Klump, 57 F.3d 801, 803 (9th Cir.), cert. denied, 116 S.Ct. 675 (1995), and U.S. v. Caterino, 29 F.3d 1390 (9th Cir. 1994), courts are precluded from considering post-sentencing conduct at resentencing. The Ninth Circuit expressed doubt about this supposed “rule,” but noted that in any event Klump and Caterino involved resentencing after remand from the Court of Appeals, whereas this case involved resentencing without an intervening remand. The district court properly considered the “best available information” in re-setting defendant’s fine. U.S. v. Jones, 114 F.3d 896 (9th Cir. 1997).
9th Circuit remands for imposition of alternative sentence. (197) The district court recognized that a two level enhancement might be reversed on appeal, so it sentenced defendant to an alternative sentence in the event of reversal. Because defendant did not appeal the alternative sentence, the Ninth Circuit vacated the original sentence and remanded for imposition of the alternative sentence. U.S. v. Eshkol, 108 F.3d 1025 (9th Cir. 1997).
9th Circuit remands for 2-level increase for gun under 2D1.1(b)(1) after reversing 924(c) count. (197) Because defendants were subject to separate consecutive sentences for using or carrying a firearm under 18 U.S.C. 924(c), their sentences were not enhanced by two levels for possessing a firearm in a drug trafficking offense under guideline section 2D1.1(b)(1). See Application Note 2 to guideline section 2K2.4. However, the Ninth Circuit held that because it was reversing their 924(c) convictions, it would be appropriate for the district court on remand to consider applying the 2-level enhancement under 2D1.1. Accordingly, the case was remanded with instructions for the district court to consider, on resentencing, whether an increase under 2D1.1(b)(1) was warranted. U.S. v. Lopez, 100 F.3d 98 (9th Cir. 1996).
9th Circuit says mandatory minimum prevents resentencing on retroactive amendment even though “safety valve” might apply. (197) Defendant was sentenced to a mandatory minimum term of 60 months for growing more than 100 marijuana plants. Thereafter, on Sept. 23, 1994, the “safety valve” provision in 18 U.S.C. § 3553(f) became effective. Then on November 1, 1995, the Commission reduced the marijuana plant equivalency from 1 kilogram to 100 grams of marijuana, retroactively. Defendant moved for resentencing under the retroactive amendment, but the court denied the motion on the ground that the amendment did not affect defendant’s statutory 60-month mandatory minimum sentence. On appeal, the Ninth Circuit affirmed, ruling that the change in the marijuana equivalency tables in the guidelines did not affect defendant’s’ sentence and therefore the district court had no authority to reduce the sentence under 18 U.S.C. § 3582(c)(2). The “safety valve” provision did not provide an independent basis for reducing his sentence because that provision is not retroactive and defendant was not eligible for resentencing. U.S. v. Mullanix, 99 F.3d 323 (9th Cir. 1996).
9th Circuit says resentencing was not limited by scope of the remand. (197) Where the scope of the remand is expressly limited to consideration of a single sentencing issue, the district court is without authority to revisit other issues. U.S. v. Pimentel, 34 F.3d 799 (9th Cir. 1994), cert denied, 115 S.Ct. 777 (1995). However, unless there is clear evidence in the remand of either an express or implied limitation, “our general practice . . . is to vacate the entire sentence and remand for resentencing whenever we find that a sentence was imposed in excess of the sentencing court’s authority.” U.S. v. Caterino, 29 F.3d 1390, 1394-95 (9th Cir. 1994) (emphasis in original). In this case, there was no evidence that the court either expressly or by implication limited the prior remand only to a portion of the sentence. The court simply said the sentences were vacated and the case was remanded for resentencing. U.S. v. Petty, 80 F.3d 1384 (9th Cir. 1996).
9th Circuit says retroactive amendments require use of guidelines in effect at time of offense, not at time of resentencing. (197) Defendant was convicted of being a felon in possession of a firearm under 18 U.S.C. §922(g). Under the 1988 guidelines this was a “crime of violence, so defendant was sentenced as a career offender under U.S.S.G. §4B1.2. Thereafter, in November, 1991, the Commission adopted retroactive amendment 433 stating that the term “crime of violence” does not include the offense of unlawful possession of a firearm by a felon. In December, 1993, defendant filed a petition seeking resentencing under the retroactive amendment. The district court declined to sentence him under the 1988 guidelines (without the career offender enhancement), but instead applied the November, 1993 guidelines in effect at the time of resentencing. Defendant appealed, claiming this violated the ex post facto clause. On appeal, the 9th Circuit agreed, relying on U.S. v. Garcia-Cruz, 40 F.3d 986, 990 (9th Cir. 1994) which held that if application of the amended guidelines results in a harsher sentence, the court must apply the guidelines in effect at the time of the offense, but must also consider the clarification provided by amendment 433. Hamilton v. U.S., 67 F.3d 761 (9th Cir. 1995).
9th Circuit says breach of plea agreement requires remand to new judge for resentencing. (197) The 9th Circuit remanded for resentencing before a different judge to insure the specific performance of a plea agreement concededly breached by the original sentence. Although Ninth Circuit cases are split on the necessity for a new sentencing judge following a breached plea agreement, Santobello v. New York, 404 U.S. 257, 262-263 (1971) indicated that resentencing should take place before a different judge to insure specific performance of a breached plea bargain. U.S. v. Camper, 66 F.3d 229 (9th Cir. 1995).
9th Circuit remands to different judge for resentencing. (197) To remand to a different judge, the Ninth Circuit considers (1) whether the original judge could reasonably be expected to put out of his mind previously expressed views or findings that were subsequently found to be erroneous; (2) whether reassignment is advisable to preserve the appearance of justice; and (3) whether reassignment would entail waste or duplication of effort out of proportion to the gain realized in preserving the appearance of fairness. Only one of the two factors must be present. In this case, the Ninth Circuit concluded that the sentencing judge would likely have substantial difficulty in putting out or his mind the views and findings which the appeals court held to be erroneous. Accordingly the case was remanded for resentencing before a different judge. U.S. v. Huckins, 53 F.3d. 276 (9th Cir. 1995).
9th Circuit says remand was unlimited and resentencing did not violate double jeopardy or due process. (197) Absent clear evidence to the contrary, when a case is remanded for resentencing the district court may reconsider the entire sentence anew. In remanding, the court of appeals stated that the sentences were vacated and were to be “recalculated.” This did not limit the scope of the remand, and therefore the district court did not err in resentencing without regard to its previous determinations. The Ninth Circuit also rejected defendant’s argument that resentencing violated the double jeopardy clause and due process. U.S. v. Ponce, 51 F.3d 820 (9th Cir. 1995).
9th Circuit finds no need to remand to different judge for resentencing. (197) In deciding whether to remand to a different judge, the Ninth Circuit considers (1) whether the original judge would reasonably be expected on remand to have difficulty setting aside views determined to be erroneous, (2) whether reassignment is advisable to preserve the appearance of justice, and (3) whether reassignment would entail waste and duplication out of proportion to any gain in preserving the appearance of fairness. Here, the district court was originally reversed for basing defendant’s sentence on “aggravated” sexual abuse, which the government agreed not to charge as part of the plea bargain. On remand, the court based the extent of the departure in part on an analogy to aggravated sexual abuse. The Ninth Circuit found that this violated its remand order and required resentencing, but concluded that remand to a different judge was “not required.” U.S. v. Chatlin, 51 F.3d 869 (9th Cir. 1995).
9th Circuit explains effect of appeals court’s mandate on district court. (197) The Ninth Circuit noted that “[t]he rule of mandate is similar to, but broader than, the law of the case doctrine.” A district court upon receiving the mandate of an appellate court, “cannot vary it or examine it for any other purpose than execution.” Thus, a district court cannot “revisit its already final determinations unless the mandate allowed it.” “Once the mandate issues, jurisdiction over a criminal case revests in the district court.” Unless the reversing court indicates in its mandate or opinion that a retrial is prohibited because of double jeopardy or similar infirmity, a second trial is appropriate. Accordingly, in this case, retrial was appropriate, even though the mandate did not expressly remand the case after reversal. U.S. v. Cote, 51 F.3d 178 (9th Cir. 1995).
9th Circuit declines to remand to a different judge for resentencing. (197) At the time of the original sentencing, it was unclear whether the Guidelines were constitutional, and defendant was sentenced to three years probation. In 1990, the district court revoked probation and sentenced defendant to five years in custody, again under pre-Guidelines law. On appeal, the 9th Circuit vacated the sentence and held that the Guidelines applied. On remand, the court departed upward from the Guideline range of 0-6 months and imposed the same 5 year sentence. In obtaining a reversal in this case, defendant sought to have the case remanded to a different judge. The 9th Circuit rejected the request, ruling that although the district judge created the departure error, “there is no significant showing that he was biased against [defendant].” Reassignment to a new judge was not necessary to preserve the appearance of justice. U.S. v. Donaghe, 50 F.3d 608 (9th Cir. 1994).
9th Circuit remands case to new judge where original judge heard materially false and unreliable evidence. (197) Reassignment to a different judge on remand is justified if the original judge would have substantial difficulty in putting out of his or her mind findings based on evidence that must be rejected. Here, the original judge based his sentencing findings on materially false and unreliable evidence, i.e., the unsupported allegations of a co-defendant. The Ninth Circuit ordered the case reassigned to a different sentencing judge on remand. U.S. v. Hanna, 49 F.3d 572 (9th Cir. 1995).
9th Circuit finds no double jeopardy despite increase in legal portion of sentence on remand. (197) On remand after the original sentence was vacated, the district court increased the legal portion of defendant’s sentence in the course of resentencing him. Defendant argued that this constituted double jeopardy, relying on U.S. v. Jordan, 895 F.2d 512, 515 (9th Cir. 1989), which held that a court may not increase the legal portion of a sentence in the course of correcting an illegal sentence under Rule 35 (now Rule 35(c)). The Ninth Circuit rejected the argument, noting that a resentencing mandate from the court of appeals “does away with the entire initial sentence,” and authorizes the district court to impose “any sentence which could lawfully have been imposed originally.” Increasing the legal portion of defendant’s sentence in order to achieve the total guideline sentence under § 5G1.2(d) did not violate double jeopardy. U.S. v. Moreno-Hernandez, 48 F.3d 1112 (9th Cir. 1995).
9th Circuit remands case to a different judge for resentencing. (197) At the original sentencing, the district judge erroneously applied the second degree murder guideline where an ATF agent was killed while attempting to dispose of defendant’s illegal fireworks. On remand, the district court departed upward by eleven levels based on grounds which the court of appeals again found to be error. At the second sentencing, the district court refused to consider mitigating and impeaching evidence offered by the defendant. Accordingly, the case was remanded to the chief judge of the district court “for reassignment to another district judge for purposes of resentencing the defendant.” U.S. v. Williams, 41 F.3d 496 (9th Cir. 1994).
9th Circuit says limited scope of remand precluded additional arguments. (197) The 9th Circuit’s general practice “is to vacate the entire sentence and remand for resentencing whenever we find that a sentence was imposed in excess of the sentencing court’s authority.” U.S. v. Caterino, 29 F.3d 1390 (9th Cir. 1994). In such cases the district court is empowered to address all sentencing issues following remand. In this case, however, the 9th Circuit “expressly limited the scope of our remand to consideration of a single sentencing issue: whether, and to what extent, the district court would exercise its authority to depart based on [defendant’s] extraordinary family circumstances. Thus, the district court in this case was without authority to re-examine any other sentencing issues on remand. The sentence was affirmed. U.S. v. Pimentel, 34 F.3d 799 (9th Cir. 1994).
9th Circuit refuses to order resentencing before a different judge. (197) Absent proof of personal bias, remand to a different judge is granted only in unusual circumstances. The 9th Circuit considers the following factors: (1) whether the original judge would reasonably be expected on remand to have substantial difficulty in putting out of his or her mind previously expressed views, (2) whether reassignment is advisable to preserve the appearance of justice, and (3) whether reassignment would entail waste and duplication. In the present appeal, defendant failed to present any evidence of bias by the district court. The fact that this was the third reversal of defendant’s sentence did not in itself warrant remand to a different judge. U.S. v. Gray, 31 F.3d 1443 (9th Cir. 1994).
9th Circuit assumes remand permits complete resentencing, absent contrary evidence. (197) The general rule is that a district court on remand may take any matter into account and may hear any evidence relevant to sentencing. The general practice in the 9th Circuit is to vacate the entire sentence and remand for resentencing whenever it finds that a sentence was imposed in excess of the sentencing court’s authority. Accordingly, “we presume that this general practice was followed unless there is clear evidence to the contrary.” Because no such clear evidence existed here, the court held that the original remand in this case should have been read as granting a general rather than a limited remand to the district court. U.S. v. Caterino, 29 F.3d 1390 (9th Cir. 1994), overruled on other grounds by Witte v. U.S., 515 U.S. 389 (1995).
9th Circuit says “law of the case” did not prevent court from correcting illegal sentence on remand. (197) In defendant’s first appeal, the 9th Circuit held that he waived the issue of apportionment of loss by failing to raise it in the district court. On remand, the district court refused to address the apportionment issue on the ground that it was bound by the law of the case. In this second appeal, the 9th Circuit held that since it did not reach the merits of the issue the district court had authority to consider it. The district court’s failure to correct its illegal sentence required a second remand for resentencing. U.S. v. Caterino, 29 F.3d 1390 (9th Cir. 1994), overruled on other grounds by Witte v. U.S., 515 U.S. 389 (1995).
9th Circuit says restructuring sentence on remand did not violate double jeopardy. (197) On remand, the district court restructured the guidelines counts from uniform 97-month terms served concurrently, to a single 18-month term to be served consecutively to the remaining concurrent terms of 60 months. The court made this change to account for the vulnerable victim reduction required by the remand and to correct the previous sentences that illegally exceeded the 60-month statutory maximum. In this second appeal, the 9th Circuit found no violation of double jeopardy, noting that a prisoner “has no legitimate expectation of finality in the original sentence when he has placed those sentences in issue by direct appeal and has not completed serving a valid sentence.” U.S. v. Andersson, 813 F.2d 1450, 1461 (9th Cir. 1987). Here, the defendant placed his initial sentence in issue by his appeal. U.S. v. Caterino, 29 F.3d 1390 (9th Cir. 1994), overruled on other grounds by Witte v. U.S., 515 U.S. 389 (1995).
10th Circuit upholds defense counsel’s agreement to resentencing by same judge. (197) At sentencing, the government breached its promise in the plea agreement not to oppose defendant’s request for a concurrent sentence. The district court sentenced him to 37 months’, to run consecutively to a previously imposed federal sentence. When the breach was brought to the court’s attention a few minutes later, the court struck the improper part of the government’s argument from the record, but then ultimately resentenced defendant to the same consecutive sentence. On appeal, defendant contended that the breach required that his sentence be vacated and resentencing take place before a different judge. The Tenth Circuit ruled that because defense counsel chose below to have defendant resentenced before the same judge, defendant was not entitled to be resentenced before a different judge. It was undisputed that defense counsel requested that the same judge conduct the resentencing. The attorney had the authority to make that request on defendant’s behalf. Defendant was bound on direct appeal by his counsel’s decision to proceed with the same judge. U.S. v. Oakes, 680 F.3d 1243 (10th Cir. 2012).
10th Circuit holds that court had discretion at resentencing to reconsider restitution. (197) On defendant’s first appeal, the Tenth Circuit found that the court erred by failing to address defendant’s objections to the PSR, and remanded with instructions to resolve the factual disputes defendant raised. On remand, defendant challenged for the first time the district court’s restitution order. The court concluded that it lacked the power to revisit the restitution issue as it was not the issue prompting the remand. The Tenth Circuit held that consideration of defendant’s challenge to the restitution order was within the permissible scope of the remand. Some circuits use a “waiver” approaching, reasoning that issues not previously raised have been waived. However, in the Tenth Circuit, the scope of the mandate on remand is carved out by exclusion: unless the district court’s discretion is specifically cabined, it may exercise discretion on what may be heard. Here, the mandate did not limit the scope of resentencing. The court remanded “for the district court to conduct proceedings consistent with this decision.” The district court erred when it determined that it lacked authority to reconsider the restitution obligation. U.S. v. West, 646 F.3d 745 (10th Cir. 2011).
10th Circuit finds no vindictiveness in resentencing defendant to identical term of imprisonment. (197) Section 2K2.1(c)(1) states that if a defendant used or possessed a firearm in connection with another crime that resulted in death, the court must apply the most analogous homicide guideline. The district court applied § 2A1.1, the first-degree murder guideline. On appeal, the Tenth Circuit held that the court erred and that the involuntary manslaughter guideline was most analogous. See U.S. v. Fortier, 180 F.3d 1217 (10th Cir. 1999). The court noted “We expect our holding to dramatically affect [defendant’s] sentence.” However, on remand, the district court departed upward by 13 levels and reimposed the same 144-month sentence. Nonetheless, the Tenth Circuit found no plain error sufficient to demonstrate vindictiveness in resentencing defendant. First, the presumption of vindictiveness identified in North Carolina v. Pearce, 395 U.S. 711 (1969) applies only when the sentence after appeal is greater than the original sentence. Second, none of the four reasons suggested by defendant proved that the court was vindictive. Although the resentencing hearing was originally scheduled for a day that defense counsel had a conflict, the court rescheduled the hearing. The judge’s comments in the local paper were benign and expressed no animus towards defendant. The decision to allow counsel for two victims to argue for an upward departure, while troubling in light of defendant’s plea agreement, was not plain error. Finally, although defendant challenged the tardiness of the decision to allow him to present witnesses, he failed to make a proffer regarding the witnesses’ testimony when given an opportunity to do so. U.S. v. Fortier, 242 F.3d 1224 (10th Cir. 2001), superseded on other grounds by statute as stated in U.S. v. Bolden, 368 F.3d 1032 (8th Cir. 2004).
10th Circuit permits de novo resentencing where government failed to meet burden of proof. (197) Despite the government’s failure to introduce any evidence on this issue at sentencing, the district court included loss from a pending Pennsylvania case in its sentencing calculation. The parties agreed that the record was inadequate to support the sentence, but disagreed about the scope of the remand. Defendant argued that since the government once failed to meet its burden of proof, it should be precluded from introducing new evidence at resentencing regarding the Pennsylvania charges. However, the Tenth Circuit held that the district court should consider the matter of the Pennsylvania charges de novo. Resentencing on remand is typically de novo, but an appellate court may limit the district court’s discretion pursuant to the mandate order. De novo resentencing permits the receipt of any relevant evidence the court could have heard at the first sentencing hearing. Although in U.S. v. Torres, 182 F.3d 1156 (10th Cir. 1999) the court found that “resentencing does not invite an open season for the government to make the record that it failed to make in the first instance,” the panel was simply exercising its discretion. There was no reason to depart from the general rule in this case. U.S. v. Keifer, 198 F.3d 798 (10th Cir. 1999).
10th Circuit says acceptance reduction at resentencing cannot be based on post-sentencing conduct. (197) Defendant conceded that he was not entitled to a § 3E1.1 acceptance of responsibility reduction when he was initially sentenced in February of 1993. However, he claimed that by the time of his resentencing on remand in October of 1998, he qualified for the reduction based on his post-sentencing conduct, namely his rehabilitative efforts made during his incarceration. The Tenth Circuit held that an acceptance of responsibility reduction may not be based on post-sentencing contrition if the defendant was ineligible for such a reduction at the time his initial sentence was imposed. U.S. v. Davis, 182 F.3d 1201 (10th Cir. 1999).
10th Circuit upholds resentencing even though defendant had served one component of sentence. (197) Defendant was originally convicted of drug and firearms charges. In 1997, upon his habeas petition, the district court vacated his § 924(c)(1) firearms conviction, and resentenced him on the 21 U.S.C. § 846 count, adding two levels under guideline § 2D1.1(b)(1) for possessing a firearm during a drug trafficking crime. The Tenth Circuit rejected defendant’s argument that the court lacked jurisdiction to resentence him because he had already finished serving his § 846 sentence. Four other circuits have concluded that resentencing under these circumstances is permissible. The two sentences were, in essence, “one unified term of imprisonment.” Defendant could not have any legitimate expectation of finality in either sentence until he had fully discharged both. On resentencing, a district court is entitled to revisit a petitioner’s entire sentence, not just the challenged portion of that sentence. U.S. v. Easterling, 157 F.3d 1220 (10th Cir. 1998).
10th Circuit says three-level acceptance of responsibility reduction applies to resentencing. (197) Defendant was originally convicted of drug and firearms charges. In 1997, upon his habeas petition, the district court vacated his § 924(c)(1) conviction, and resentenced him on the drug count. At resentencing, defendant requested a three-level acceptance of responsibility reduction under § 3E1.1(b)(2), even though that section did not become effective until after he was originally sentenced. The district court ruled that defendant was subject to the guidelines in effect when he was originally sentenced, but on appeal, the Tenth Circuit reversed. It is well-settled that when a district court vacates a sentence and resentences a defendant, the court is governed by the guidelines in effect at the time of resentencing, subject to ex post facto considerations. The district court’s decision was not based on the government’s secondary argument that defendant’s information was not timely. The judge’s statement showed he believed he lacked legal authority to apply the newer guideline. U.S. v. Easterling, 157 F.3d 1220 (10th Cir. 1998).
10th Circuit says pre-Koon rulings in this case did not use wrong standard of review. (197) In the first appeal (Talk I), the appellate court reversed a reduction for acceptance of responsibility and ordered an increase for use of force. However, on remand, the district court departed down for (1) a single act of aberrant behavior, and (2) defendant’s strong family and community ties. The appellate court again reversed and ordered resentencing without the departures (Talk II). At his second resentencing, the court departed based on a combination of factors, including defendant’s family ties, educational accomplishments and lack of criminal history. On appeal, the appellate court again reversed, noting that the prior mandate did not permit a departure. At his third resentencing, the district court denied a departure. Defendant moved under § 2255 to vacate his sentence, arguing that Koon v. U.S., 518 U.S. 81, 116 S.Ct. 2035 (1996) changed the standard of review of departures. The Tenth Circuit upheld the district court’s rejection of the § 2255 motion. The law of the case barred the court from departing for family circumstances. As for aberrant behavior, Talk II’s rejection of this departure was not based on a legal conclusion, but a factual finding that defendant’s crime was not sufficiently aberrational. Defendant could not show that Talk II relied on an inappropriate standard of review. U.S. v. Talk, 158 F.3d 1064 (10th Cir. 1998).
10th Circuit holds mandate permitted court to resentence drug counts. (197) Defendant was originally convicted of drug and firearms charges. On appeal, the Tenth Circuit reversed the § 924(c) conviction and remanded for a new trial on this charge. The opinion stated that “[t]he convictions and sentences are AFFIRMED in all other respects.” The government decided not to retry defendant on the gun charge. At the government’s request, the district court then resentenced defendant on the remaining drug crimes and applied a § 2D1.1(b)(1) enhancement for the gun. This increased his sentence for the drug crimes from 188 months to 235 months. Defendant argued that the language of the appellate court opinion specifically limited the district court’s power and that the court had no authority, on remand, to adjust his sentence on the remaining charges. The Tenth Circuit held that the mandate did not limit the court’s authority to resentence defendant on the remaining drug counts. A district court has inherent discretionary power to expand the scope of resentencing beyond the issue that resulted in the reversal and vacation of the sentence. An appellate opinion must specifically limit a district court’s authority to resentence on remand. The mandate here did not contain the needed specificity. Judge McKay dissented. U.S. v. Hicks, 146 F.3d 1198 (10th Cir. 1998).
10th Circuit does not require resentencing on drug count when gun count is vacated. (197) Defendant was originally convicted of drug charges and using firearms during a drug trafficking crime. After the Supreme Court decided Bailey v. U.S., 516 U.S. 137 (1995), defendant moved under § 2255 to vacate his § 924(c) convictions. The district court vacated the § 924(c) convictions but refused to resentence defendant on the underlying drug count. On appeal, the Tenth Circuit affirmed. Under U.S. v. Mendoza, 118 F.3d 707 (10th Cir. 1997), a district court has authority to resentence a defendant after vacating a § 924(c) conviction. The district court did not misunderstand that discretion. The court, adopting the magistrate judge’s recommendations, found that resentencing was neither “required nor appropriate.” This language indicated the court simply declined to exercise its discretionary authority to resentence. U.S. v. Pearce, 146 F.3d 771 (10th Cir. 1998).
10th Circuit rules that after vacating gun count, court can resentence on drug counts. (197) Defendant was originally convicted of drug and firearms counts. He successfully petitioned under § 2255 to vacate the § 924(c) firearm conviction in light of Bailey v. U.S., 116 S.Ct. 501 (1995). The Tenth Circuit, joining seven other circuits, held that a district court has authority in such a situation to resentence a defendant on the unchallenged but related convictions. Once the court determined that defendant was entitled to § 2255 relief from his § 924(c) conviction, the court was obligated to set aside the judgment, which encompassed both convictions and sentences. Resentencing did not upset a legitimate expectation of finality. Because he challenged one of several interdependent sentences in his § 2255 motion, defendant did not have a legitimate expectation of finality in the related, but unchallenged sentence. U.S. v. Mendoza, 118 F.3d 707 (10th Cir. 1997).
10th Circuit says “set aside” means “vacate” or “resentence” on remand. (197) Defendant was convicted of drug and firearms charges. Following remand from the Supreme Court, the Tenth Circuit reversed the firearm conviction in light of Bailey v. U.S., 116 S.Ct. 501 (1995), and remanded with directions to “set aside” the conviction and sentence. On remand, the district court vacated the firearm sentence but then enhanced the drug sentence under § 2D1.1(b)(1). Defendant argued on appeal that the language “set aside” in the remand order precluded the district court from reconsidering the § 2D1.1 (b)(1) enhancement and violated the mandate. The Tenth Circuit held that the words “set aside” are equivalent to the words “vacate” or “resentence” on remand. Once the sentence on the firearms charge is “set aside” the district court is no longer prohibited from considering appropriate enhancements on the remaining drug count. The provisions of the guidelines operate interdependently. Precluding the district court from reconsidering the entire sentencing package after one count of conviction is vacated would be inconsistent with the purposes and structure of the guidelines. U.S. v. Smith, 116 F.3d 857 (10th Cir. 1997).
10th Circuit holds mandate prohibited court from departing down at resentencing. (197) In U.S. v. Webb, 49 F.3d 636 (10th Cir. 1995), the Tenth Circuit held that the district court erred in departing downward since the circumstances relied on by the court were typical circumstances already considered by the Sentencing Commission. On remand, defendant asked the district court to depart again based on a combination of three factors. Although these three factors were the same factors relied on by the district court in making the original downward departure, defendant contended that it would have been proper for the district court to consider the factors in combination. The Tenth Circuit held that the mandate rule prohibited the district court from departing downward at resentencing. Although resentencing on remand is typically de novo, this is not true where an appellate court has specifically limited a district court’s discretion. The appellate court specifically instructed the district court to resentence defendant within the guideline range and did not grant the court the opportunity to consider mitigating factors. U.S. v. Webb, 98 F.3d 585 (10th Cir. 1996).
10th Circuit permits full resentencing on remand because ineffective counsel failed to file appeal. (197) Defendant filed a motion under 28 U.S.C. § 2255 alleging ineffective assistance of counsel for failing to file an appeal from his sentence. The district court agreed that counsel was ineffective, and granted a new sentencing hearing. At resentencing, defendant’s new counsel attempted to raise new arguments based on additional evidence he claimed had come to light since the first sentencing. The district court concluded that it had no jurisdiction to consider the new evidence or expanded objections not presented at the original hearing. On appeal, the Tenth Circuit reversed, holding that the court had no obligation to conduct a de novo resentencing proceeding, but it was within its discretion to do so. Under circuit precedent, the proper remedy for a criminal defendant who has had ineffective assistance of counsel in failing to perfect an appeal is resentencing. However, nothing in these cases limits the jurisdictional power of the district court in conducting the resentencing. U.S. v. Moore, 83 F.3d 1231 (10th Cir. 1996).
10th Circuit says on remand court may not consider matters that arose after first sentencing. (197) Defendant was convicted of unlawful possession of a machine gun. The district court departed downward and the Tenth Circuit reversed and remanded for de novo resentencing. On remand the district court again departed downward, citing in part defendant’s successful completion of his rehabilitation program. The Tenth Circuit held that in a de novo resentencing, the district court may only consider factors that it could have considered at the first sentencing hearing. Therefore, defendant’s post-sentencing conduct could not be considered at resentencing since it did not arise in the proper time frame. U.S. v. Warner, 43 F.3d 1335 (10th Cir. 1994).
10th Circuit says court was entitled to hear new evidence at resentencing. (197) In defendant’s first appeal, the 10th Circuit held that the district court erred in relying solely on a confidential informant’s out-of-court statement to determine the quantity of drugs. In defendant’s second appeal, he argued that the district court erred by considering new evidence on resentencing. The 10th Circuit upheld the consideration of new evidence, holding that de novo resentencing permits a court to receive any relevant evidence that the court could have heard at the first sentencing hearing. U.S. v. Ortiz, 25 F.3d 934 (10th Cir. 1994).
11th Circuit upholds defendant’s original sentences as interdependent “package.” (197) After murdering a police officer, defendant was convicted under the federal witness-tampering statute, and for using a firearm during a crime of violence. He was sentenced to life imprisonment on the witness tampering count with a consecutive 10-year sentence on the firearm count. However, he successfully challenged the witness tampering count on direct appeal. The district court resentenced him to life imprisonment on the surviving firearm count, explaining that the original sentence “was obviously a package,” and that it never would have imposed a 10-year sentence on the firearm count standing alone. The Eleventh Circuit upheld the life sentence. In resentencing proceedings following a successful direct appeal, as long as the district court “viewed the [defendant’s original sentence] as a ‘package,'” the counts of conviction and the component sentences resulting from them are interdependent enough for the district court to revisit them after one of the components is set aside. Here, the district court made clear at the resentencing that when sentencing defendant the first time, it had viewed the sanctions it imposed on him as “a package sentence,” and that it “would not have given someone ten years on a murder-with-a-firearm charge standing alone.” U.S. v. Fowler, 749 F.3d 1010 (11th Cir. 2014).
11th Circuit applies Fair Sentencing Act to de novo resentencing in crack cocaine case. (197) Defendant was convicted of and sentenced for crack cocaine offenses prior to the August 3, 2010, effective date of the Fair Sentencing Act (FSA), which raised the drug quantities required to trigger mandatory minimum sentences for certain crack offenses. However, the appellate court vacated his original sentence. At defendant’s 2011 resentencing, the district court held that the FSA did not apply, ruling that it would be unfair to grant defendant a reduced mandatory minimum sentence when his co-defendants were sentenced under the pre-FSA minimums. In Dorsey v. U.S., 132 S.Ct. 2321 (2012), the Supreme Court held that the FSA applies to defendants whose offenses occurred prior to August 3, 2010, but who were resentenced after August 3, 2010. The First Circuit found no meaningful difference between an initial sentence and a resentencing post-Act, and that the FSA applied in both cases. The general rule is that a defendant should be sentenced under the law in effect at the time of sentencing. When a sentence is vacated, there is no sentence in effect. Thus, at the time defendant was resentenced, he was in the same position as the Dorsey defendant. U.S. v. Hinds, 713 F.3d 1303 (11th Cir. 2013).
11th Circuit says court may consider defendant’s post-sentence rehabilitation at resentencing. (197) On remand for resentencing, defendant asked the court to consider his post-sentence rehabilitative conduct in his new sentence. The district court refused to consider defendant’s post-sentence rehabilitation, stating that it was prohibited from doing so by U.S. v. Lorenzo, 471 F.3d 1219 (11th Cir. 2006), abrogated by Pepper v. U.S., 131 S.Ct. 1229 (2011) (holding that post-sentence rehabilitative conduct is an impermissible factor in sentencing). The Eleventh Circuit affirmed. However, in Pepper v. U.S., 131 S.Ct. 1229 (2011), the Supreme Court abrogated Lorenzo, and held that when a defendant’s sentence has been set aside on appeal, a district court at resentencing may consider evidence of the defendant’s post-sentencing rehabilitation. In light of Pepper, the Eleventh Circuit vacated its prior opinion, vacated defendant’s sentence, and remanded for resentencing so that the district court may consider defendant’s post-sentence rehabilitative conduct as permitted by Pepper. U.S. v. Smith, 638 F.3d 1351 (11th Cir. 2011).
11th Circuit holds that judge was not required to recuse himself upon remand for resentencing. (197) Defendant was arrested in connection with the death of a minor, and eventually pled guilty to a single count of distributing cocaine to a minor. The district court sentenced him to 216 months. On appeal, the appellate court affirmed all of the enhancements, but rejected numerous upward departures and remanded for resentencing. The Supreme Court then decided Booker. At resentencing, the district court calculated the guideline range at 37-46 months. However, it held that Booker was an exception to the mandate rule, and that it was required to apply the guidelines in an advisory manner by imposing a reasonable sentence in light of § 3553(a). It then sentenced defendant to 120 months. The Eleventh Circuit held that the district judge did not err in failing to recuse himself from resentencing. The fact that the court on remand continued to view defendant’s conduct as sufficiently serious to warrant a sentence above the guideline range was not improper. Nothing in the record demonstrated that the court had developed a personal or extrajudicial bias against defendant. In addition, there was no violation of the mandate rule. While a guideline departure based on the acts that the appellate court ruled beyond the scope of relevant conduct would have violated the mandate of the appellate court opinion, the court did not apply a guideline departure. After Booker, the district court had the discretion to impose a variance, a sentence outside the guideline range based on the § 3553(a) factors. U.S. v. Amedeo, 487 F.3d 873 (11th Cir. 2007).
11th Circuit rejects departure based on rehabilitation while in prison. (197) At his resentencing, defendant argued that he was entitled to a downward departure based on his rehabilitative efforts and good behavior during his years of incarceration. The Eleventh Circuit noted that such departures are clearly prohibited by U.S. v. Pickering, 178 F.3d 1168 (11th Cir. 1999). Pickering held that it was an abuse of discretion for the district court to adjust a defendant’s offense level, as opposed to his criminal history category, downward for extraordinary rehabilitative acts while awaiting sentencing. Although Pickering involved a defendant who had not yet been sentenced, while this case dealt with a resentencing, this was a distinction without a difference. The concepts underlying Pickering were equally applicable to offenders facing resentencing. U.S. v. Mesa, 247 F.3d 1165 (11th Cir. 2001).
11th Circuit holds that court was not obligated to consider new request for reduction at resentencing. (197) On defendant’s first appeal, the Eleventh Circuit vacated a leadership increase and remanded for the district court to make more detailed findings of fact. At resentencing, in addition to arguing that defendant was not a leader, defense counsel requested a one-level acceptance of responsibility reduction for timely notifying authorities of his intention to plead guilty. The Eleventh Circuit held that the district court was not required to consider this argument, which defendant should have raised earlier. Requiring the district court to consider the argument at the resentencing would give defendants incentive to introduce sentencing objections in a piecemeal fashion and allow them to avoid the difficult burden of plain error review. U.S. v. Mesa, 247 F.3d 1165 (11th Cir. 2001).
11th Circuit directs court to consider clarifying amendment to § 2J1.6. (197) Section 2J1.6, the failure to appear guideline, contains a graduated set of offense levels based on the punishment for the “underlying offense.” In U.S. v. Magluta, 198 F.3d 1265 (11th Cir. 1999), the Eleventh Circuit held that the term “the underlying offense” refers to one count in the indictment–the most serious of the counts—and not the aggregate of all the maximum penalties. On petition for rehearing, defendant requested rehearing de novo on the court’s application of § 2J1.6 and asked that he be allowed to argue on remand that a subsequent clarifying amendment, Amendment 579, be applied to him. The Eleventh Circuit rejected defendant’s request for rehearing de novo. However, since the applicable sentencing guideline has been amended to clarify the issue, the Eleventh Circuit directed the district court to follow the amended application note. U.S. v. Magluta, 198 F.3d 1265 (11th Cir. 1999), vacated in part on other grounds, 203 F.3d 1304 (11th Cir. 2000).
11th Circuit finds no 6th amendment violation where co-conspirator’s counsel represented defendant. (197) Defendant and Ramsdale were convicted of conspiracy to manufacture methamphetamine. The appellate court ordered resentencing to determine the type of methamphetamine involved. At the resentencing hearing, defendant’s counsel left partway through the cross-examination of the DEA chemist. Counsel was absent during the testimony of the DEA agent and of the defense’s expert witness. Ramsdale’s attorney cross-examined the government witnesses. The Eleventh Circuit held that counsel’s absence at part of the resentencing hearing did not violate defendant’s right to counsel because Ramsdale’s lawyer acted as defendant’s attorney during the other defense counsel’s absence. For joint representation to deprive defendant of his right to counsel, an actual conflict must exist. Defendant and Ramsdale had no conflict of interest. The sole purpose of the hearing was to determine what kind and how much methamphetamine to attribute to defendant and Ramsdale at sentencing. There was no conflict of interest since as co-conspirators, they were responsible for the kind and amount of drugs produced by the other. U.S. v. Ramsdale, 179 F.3d 1320 (11th Cir. 1999).
11th Circuit finds no manifest injustice in failure to grant allocution at resentencing. (197) Under Rule 32(c)(3)(C), a defendant must be given the chance to address the sentencing court before the sentence is imposed. When that opportunity is not given, but the defendant fails to object, an appellate court will remand only if there is “manifest injustice” as a result of the omission. U.S. v. Rodriguez-Velasquez, 132 F.3d 698 (11th Cir. 1998). The Eleventh Circuit found no manifest injustice in the district court’s failure to grant defendant the right to allocution at his resentencing. The case was similar to U.S. v. Tamayo, 80 F.3d 1514 (11th Cir. 1996), which found no manifest injustice in the district court’s failure to allow defendant to speak at a resentencing hearing. As in Tamayo, the resentencing was for a limited purpose – in this case to determine the type of methamphetamine involved in the offense. The court and the parties understood the remand was a limited one. U.S. v. Ramsdale, 179 F.3d 1320 (11th Cir. 1999).
11th Circuit upholds resentencing on unchallenged convictions after vacating firearm count. (197) Defendant originally pled guilty to drug and firearms charges. Based on the government’s § 5K1.1 motion, the district court departed downward and imposed a 132-month sentence, consisting of concurrent terms of 72 months on the first two counts and a 60-month consecutive sentence on the § 924(c) gun count. Years later, the district court granted defendant’s § 2255 motion to vacate the § 924(c) conviction. The government requested resentencing on the drug counts so that it could seek a § 2D1.1(b)(1) gun enhancement. The district court agreed and resentenced defendant to 96 months on the drug counts¾24 months more than the initial sentence on the drug counts but 36 months less than the prior aggregate sentence. The Eleventh Circuit affirmed, even though a § 2D1.1(b)(1) enhancement for possession of a firearm during a drug offense did not affect defendant’s offense level because he was a career offender. The “sentencing package” doctrine provided jurisdiction to resentence defendant regardless of the availability of the § 2D1.1(b)(1) enhancement. U.S. v. Watkins, 147 F.3d 1294 (11th Cir. 1998).
11th Circuit upholds resentencing on drug counts after successful § 2255 challenge to gun counts. (197) Defendants successfully challenged their firearms convictions under § 2255 on the ground that the weapons were not actively employed during the crimes. After vacating the firearms sentences, the district court sua sponte applied a § 2D1.1(b)(1) firearm enhancement to defendants’ remaining drug counts. The Eleventh Circuit, agreed with the Third, Fourth, Seventh and Ninth Circuits that the district court has authority under § 2255 to resentence on a drug count after a prisoner has successfully challenged a § 924(c) conviction. The § 924(c) conviction and the § 2D1.1(b)(1) enhancement are interdependent because they are mutually exclusive. Section 2255 grants a district court broad flexible power to recalculate a defendant’s entire sentence. Resentencing did not violate the double jeopardy clause or defeat defendants’ expectations of finality. U.S. v. Mixon, 115 F.3d 900 (11th Cir. 1997).
11th Circuit permits court to depart upward at resentencing. (197) Defendant was originally sentenced as a career offender to 365 months based on the court’s understanding that being a felon in possession of a firearm was a crime of violence. The court rejected the government’s request for an upward departure, finding the high end of the guideline range satisfied the government’s concerns. The Sentencing Commission then amended the commentary to § 4B1.2 to state that a felon’s possession of a firearm is not a crime of violence. Later cases required this amendment to be applied retroactively to defendant. At resentencing, the district court departed upward by three offense levels and imposed the same 365‑month sentence. On appeal, the Eleventh Circuit affirmed. When a sentence is vacated and the case is remanded for resentencing, the district court is free to reconstruct the sentence. Even if the original sentence was, at the time, the law of the case, that sentence was wiped away by the vacatur, and the court was free to consider the issue of upward departure in resentencing. The government did not waive its rights by not appealing the original sentence, because a discretionary refusal to depart is not appealable. U.S. v. Stinson, 97 F.3d 466 (11th Cir. 1996).
11th Circuit grants government’s petition for mandamus where court failed to apply mandatory minimum. (197) The district court found that defendants’ conspiracy involved more than 1000 kilograms of marijuana. It refused to apply the mandatory minimum applicable under 21 U.S.C. §§841(b)(1) (A)(vii) and 960(b)(1)(G) because the government failed to give defendants pre-trial notice of its intent to seek such penalties. The government initially challenged the sentences under 18 U.S.C. §3742(b)(1). However it later conceded that this was not applicable because the offenses occurred prior to November 1, 1987. The 11th Circuit agreed to treat the ineffective appeal as a petition for mandamus relief, and granted the petition. U.S. v. Alvarez, 735 F.2d 461 (11th Cir. 1984), which held that marijuana quantity was a critical element of the offense, is no longer good law. Drug quantity is an issue for the court to determine at sentencing. Here, the PSR stated that over 1000 kilograms were involved. Therefore, defendants had notice of the quantity involved. Because the sentences imposed were illegal, the government was entitled to mandamus relief. U.S. v. Coy, 19 F.3d 629 (11th Cir. 1994).
D.C. Circuit holds that resentencing court properly refused to reconsider managerial role enhancement. (197) Defendant was convicted of multiple drug and firearms offenses, and was sentenced to concurrent 360-month terms. The sentence included a § 3B1.1(b) managerial role enhancement. However, the judgment improperly included a count for which defendant had not been convicted, and the case was remanded for resentencing. At resentencing, the district court rejected defendant’s request to reconsider the managerial role enhancement. The court reimposed the original 360-month sentence, reasoning that the vacated count was just an additional count, “but carried no independent weight as to the sentences.” The D.C. Circuit affirmed, holding that the remand order did not authorize the district court to reconsider its original decision to apply the managerial role enhancement. On defendant’s first appeal, the appellate court affirmed the district court’s original decision that the enhancement was warranted. U.S. v. Blackson, 709 F.3d 36 (D.C. Cir. 2013).
D.C. Circuit says ruling that defendant was Armed Career Criminal was law of the case. (197) Defendant was convicted of being a felon in possession of a firearm, and was sentenced under the Armed Career Criminal Act, 18 U.S.C. § 924(c), to 188 months. The case was remanded for resentencing in light of Booker. The court resentenced defendant to 82 months, holding that the government had not proven on remand that defendant qualified for sentencing under the ACCA. The D.C. Circuit held that because defendant did not did not challenge the ACCA determination on the first appeal, the law of the case doctrine precluded the district court from revisiting that issue at resentencing. The decision to sentence defendant under the ACCA was the law of the case, and was binding on remand. Moreover, even if the court was permitted to revisit defendant’s ACCA status, the government presented sufficient evidence that defendant’s two predicate drug offenses were committed on occasions different from one another. 18 U.S.C. § 924(e). U.S. v. Thomas, 572 F.3d 945 (D.C. Cir. 2009).
D.C. Circuit holds that court plainly erred in imposing 108-month sentence based on mistaken belief that statutory maximum was 240 months. (197) Defendant pled guilty to being a felon in possession of a firearm, and was sentenced to 108 months under the then-mandatory guidelines. Upon resentencing in light of Booker, the court imposed the same sentence. The D.C. Circuit held that the district court plainly erred in thinking the statutory maximum to which defendant could be sentenced was 20 years, when in fact it was 10 years. The error affected defendant’s substantial rights. The court was under the impression it was imposing a relatively lenient sentence – it stated that the sentence was “considerably less than the statutorily-available maximum” presumably in order to take into account relevant mitigating factors raised by defendant. The panel reversed the sentence. U.S. v. Watson, 476 F.3d 1020 (D.C. Cir. 2007).
D.C. Circuit, en banc, holds that defendant can raise previously contingent issue at resentencing if “good cause” for not raising it sooner. (197) The district court grouped defendant’s false statement counts and perjury count in separate groups and then applied an obstruction of justice increases to both groups. Defendant objected to all enhancements, including the obstruction increase. However, she did not object to the obstruction increase on one ground that was specific only to the perjury group. Because of the complexities of the multiple count adjustment provisions of § 3D1.4, victory on this ground would not have affected her offense level unless the court made other sentencing adjustments that reduced the gap between the two group’s offense levels. On appeal, defendant prevailed on one enhancement. On remand, defendant raised her perjury-specific attack, because victory on this issue would now affect her total combined offense level. The D.C. Circuit, en banc, held that defendant’s ability to raise for the first time at resentencing a contention that was only contingently relevant in the initial sentencing depended upon whether she could establish “good cause” within the meaning of Rule 32(b)(6)(D) for not having raised it sooner. The case was remanded, not to the district court for a determination of good cause, but to the appellate panel to determine defendant’s challenge on the merits. Judges Henderson, Ginsburg and Sentelle dissented, believing the majority misunderstood and misapplied U.S. v. Whren, 111 F.3d 965 (D.C. Cir. 1997). U.S. v. McCoy, 313 F.3d 561 (D.C. Cir. 2002) (en banc).
D.C. Circuit upholds court’s authority to re-impose same sentence after vacating § 924(c) convictions. (197) In 1988, Defendant received a 450-month sentence for various drug and gun-related convictions. In 1994, after a Rule 35(b) motion by the government, the court departed downward to a total term of 240 months, of which 60 months were allocated to each of two § 924(c) counts, and 120 months were allocated to the other charges. Following Bailey v. United States, 516 U.S. 137 (1995), the government stipulated that defendant’s § 924(c) convictions should be vacated. The district court resentenced defendant, again imposing a total sentence of 240 months. Defendant claimed the court lacked authority to re-impose the same total term of imprisonment, and that doing so violated the double jeopardy clause. The D.C. Circuit held that the total sentence defendant originally received was properly considered a single “package,” so that by challenging his § 924(c) convictions, defendant reopened his entire sentence, and the sentence imposed on the remaining counts was lawful. The district court explicitly relied on a “sentencing package” theory, noting that the intention in allowing the downward departure in 1994 was to achieve an overall sentence of 240 months. Where the vacated and remaining counts are closely related and the judge indicates an intention to arrive at a “formula” for reaching the overall sentence desired after the downward departure, treating the sentence as a unitary package is appropriate. U.S. v. Townsend, 178 F.3d 558 (D.C. Cir. 1999).
D.C. Circuit holds defendant waived Rule 32 objection by failing to object at resentencing. (197) Defendant argued that his resentencing did not comply with Rule 32 because he did not timely receive the probation office’s sentencing memorandum. Without deciding whether Rule 32’s time requirements were applicable to the memo at issue, the D.C. Circuit found that even if the argument had merit it was waived. Defendant made no objection on this ground at the sentencing hearing. Neither he nor his counsel informed the court that they had had insufficient time to review the memo. In fact, defense counsel reviewed the memo and filed a response. By participating in the resentencing hearing without objection, defendant waived his right to raise Rule 32’s time requirements on appeal. U.S. v. Townsend, 178 F.3d 558 (D.C. Cir. 1999).
D.C. Circuit allows defendant to seek downward departure after reversal of firearm conviction. (197) After the Supreme Court decided Bailey v. U.S., 516 U.S. 137 (1995), the D.C. Circuit reversed defendant’s firearm conviction and remanded his remaining drug convictions “for possible resentencing taking into account the provisions of § 2D1.1(b)(1).” At resentencing, defendant sought a downward departure based on his post-conviction rehabilitation. The government contended that the appellate court opinion limited the district court to applying § 2D1.1(b)(1)’s weapon possession enhancement, thus precluding defendant from seeking departure. The D.C. Circuit held that its previous opinion did not bar defendant from seeking a downward departure at resentencing. In U.S. v. Whren, 111 F.3d 956 (D.C. Cir. 1997), the court held that at resentencing occasioned by remand, sentencing courts may consider “only such new arguments or new facts as are made newly relevant by the court of appeals’ decision, whether by reasoning or result.” Whren rejected de novo resentencing where a defendant sought a departure based on factors available at the time of initial sentencing. Whren did not address whether defendant could seek a departure based on factors not existing at the initial sentencing. U.S. v. Rhodes, 145 F.3d 1375 (D.C. Cir. 1998).
D.C. Circuit permits resentencing on drug counts after vacating § 924(c) conviction under § 2255. (197) In U.S. v. Rhodes, 106 F.3d 429 (D.C. Cir. 1997), the D.C. Circuit held that 28 U.S.C. § 2106 authorizes a district court to apply a § 2D1.1(b)(1) enhancement to a defendant who successfully challenges a § 924(c) conviction on direct appeal. Here, the D.C. Circuit held that the court has jurisdiction to apply the enhancement to a defendant who successfully challenges a § 924(c) conviction under 28 U.S.C. § 2255. Every circuit to consider the issue has approved application of § 2D1.1(b)(1) to a defendant who has had his conviction vacated under § 2255. The reasoning has varied, but the outcome is compelled by the complete interdependence and mutual exclusivity of the two provisions. The court also rejected defendants’ double jeopardy and substantive due process claims. U.S. v. Morris, 116 F.3d 501 (D.C. Cir. 1997).
D.C. Circuit holds defendant may not raise unrelated issues on remand. (197) Defendant was convicted of several drug counts, including possession with intent to distribute within 1000 feet of a school. On appeal, the court reversed one distribution conviction because it was a lesser-included offense of the schoolyard conviction. At resentencing, defendant sought to raise four issues he had not raised either at the original sentencing or on appeal. None of the four issues was related to the vacated distribution count. The D.C. Circuit held that on remand, unless the court of appeals directs otherwise, the district court may consider only such new arguments or new facts as are made newly relevant by the appellate decision. Defendant should not be deemed to have waived an issue he had no reason to raise at his original sentencing, but neither should he be able to raise an issue on resentencing that he could have raised earlier. However, under Rule 52(b), the resentencing court may consider an issue raised late if it rises to the level of plain error. None of the defendant’s sentencing claims met this standard. The court did not plainly err in failing to sua sponte depart downward on the ground that the purpose of the schoolyard enhancement would not be served in this case. U.S. v. Whren, 111 F.3d 956 (D.C. Cir. 1997).
D.C. Circuit remands for gun enhancement after vacating § 924(c) conviction. (197) Defendant was convicted of drug and firearms charges. The Supreme Court vacated his § 924(c) conviction in light of Bailey v. U.S., 116 S.Ct. 501 (1995). The D.C. Circuit held that 28 U.S.C. § 2106 gave it authority to remand the drug sentences for resentencing with a firearm enhancement under § 2D1.1(b)(1) after vacating the § 924(c) conviction. If the jury had acquitted defendant on the § 924(c) count, and defendant met the requirements of § 2D1.1(b)(1), the district court would have been required to apply the enhancement. Although the statute that governs a court’s authority to modify a sentence, 18 U.S.C. § 3582, does not by its terms address this situation, section 2106 provides that an appellate court may modify or reverse any judgment and may remand the case and direct the entry of an appropriate judgment or require such further proceedings “as may be just under the circumstances.” On the facts of this case, it was “just under the circumstances to remand.” U.S. v. Rhodes, 106 F.3d 429 (D.C. Cir. 1997).
D.C. Circuit remands for gun increase after vacating § 924(c) conviction. (197) Defendant was convicted of drug and firearms charges. One § 924(c)(1) conviction was based on two guns found in the trunk of his car. This conviction was vacated on appeal in light of Bailey v. U.S., 116 S.Ct. 501 (1995), because he did not “actively employ” the guns. The D.C. Circuit remanded for resentencing so that the district court could enhance defendant’s drug sentence for possession of the firearms under § 2D1.1(b)(1). The enhancement is appropriate where, as here, there is sufficient evidence that the defendant possessed a gun during the conspiracy. U.S. v. Harrison, 103 F.3d 986 (D.C. Cir. 1997).
D.C. Circuit permits government on remand to argue theory not raised at initial sentencing. (197) At defendants’ first sentencing hearing, the district court held that more than 100 grams of crack seized by police was relevant conduct for sentencing purposes. On appeal, the government conceded that this was error, but contended that the error was harmless because defendants’ sentence could be supported by a new theory not raised in the district court. The appellate court remanded for the district court to “determine whether such a theory is sustainable in law and fact.” On remand, the district court applied the theory to uphold the sentence. On their second appeal, defendants argued that the government should not have been permitted to argue a theory on remand that it had not raised at the initial sentencing. The D.C. Circuit found no error. Unlike U.S. v. Leonzo, 50 F.3d 1086 (D.C. Cir. 1995), cited by defendant, the government relied on the existing record, and did not introduce any new evidence at the resentencing. The remand was not caused by the government’s failure to meet its burden of production and persuasion at the original sentencing, but by the court’s legal error in construing the guidelines. U.S. v. Ynfante, 78 F.3d 677 (D.C. Cir. 1996).
California District Court applies 2D1.1 gun increase after 924(c) count reversed. (197) In this 28 U.S.C. § 2255 proceeding, the district court vacated defendant’s conviction for using a firearm in a drug offense under 18 U.S.C. § 924(c) because the defendant did not “actively employ” the firearm as required by Bailey v. U.S., 116 S.Ct. 501 (1995). But the court then increased defendant’s sentence by two levels under guideline § 2D1.1(b)(1) for possessing a dangerous weapon. These two levels had been omitted from the original sentence because the guidelines prohibit a 2D1.1 enhancement if the defendant is sentenced for the gun under § 924(c). The district court rejected defendant’s argument that it lacked jurisdiction to increase his sentence under 2D1.1. Even though defendant had carefully limited his 2255 motion to the 924(c) count the court ruled that the guidelines require the court to impose “just one sentence.” Thus, “when the court vacates and sets aside the invalid counts, it disturbs the only justification for not including a § 2D1.1(b)(1) increase on the valid counts.” To resentence correctly, “the court must include the § 2D1.1(b)(1) increases.” U.S. v. Aespuro, 938 F.Supp. 623 (ED CA 1996).
New York District Court says defendant gets benefit of amended guidelines where original sentence is “vacated.” (197) The court of appeals found it unclear whether the district court understood it could depart for extraordinary family circumstances. Instead of remanding for clarification, however, the court of appeals “vacated” the judgment. On remand, the district judge noted that this may have exceeded the limited scope of review in 18 U.S.C. § 3742(f), and was inconsistent with the court’s treatment of similar cases. Nevertheless, the court felt obliged to resentence the defendant “de novo,” giving her the benefit of the 3-level reduction for acceptance of responsibility even though that amendment is not retroactive. The defendant thus obtained a lower sentence on remand even though the district court reaffirmed its refusal to depart for extraordinary family circumstances. U.S. v. Ekhator, 853 F.Supp. 630 (E.D.N.Y. 1994).