Wednesday, December 10, 2014

What does a Mandate and Remand for Re-Sentencing from the Second Circuit really mean?

It happens occasionally. The U.S. Second Circuit Court of Appeals issues a Summary Order affirming the judgment of conviction and remanding the matter for re-sentencing only. In the USA v. Dawn White, 13-1041-cr, the Circuit provided the following, REMAND for re-sentencing only, “with directions to the District Court either to make specific findings to support the enhancement under U.S.S.G§2B1.1(b)(11)(C)(I) or to sentence White without regard to that enhancement.” What’s the analysis? 
First, when there is no vacatur of a count of conviction that has altered the “factual mosaic related to” the remaining counts which would compel the sentencing court to reconsider the imposed sentence on the count or counts affected by the vacatur as well as the aggregated sentence the proceeding is not de novo. See, United States v. Quintieri, 396 F3d 1217, 1227-28 (2d Cir. (2002); see also, United States v. Rigas, 585 F3d 108, 118-119 (2d Cir. 2009). The proper procedure was addressed in United States v. Malki, 718 F3d 178 (2d Cir. 2013) as provided below. 
When we overturn a sentence without vacating one or more underlying convictions and remand for re-sentencing, the “default rule” is that the remand is for limited, and not de novo, re-sentencing. United States v. Quintieri, 306 F3d 1217, 1228-29 n. 6 (2d Cir 2002). When  our remand is limited, the mandate rule generally forecloses re-litigation of issues previously waived by the parties or decided by the appellate court. See id., at 1225. Similarly, it “also precludes re-litigation of issues impliedly resolved by the appellate court’s mandate.” Yick Man Mui v. United States, 614 F3d 50, 53 (2d Cir 2010). 
Although a mandate may, of course, call for de novo re-sentencing, thereby allowing parties to reargue issues previously waived or abandoned, a mandate should not be so interpreted unless it clearly says so or our intent that re-sentencing be de novo is evident from “the broader ‘spirit of the mandate.’” United States v. Ben Zvi, 242 F3d 89, 95 (2d Cir 2001)(citations omitted). 
Id., at 182.

What then is a de novo re-sentencing? “[W]hen a (complete) sentence has been vacated, the defendant is placed in the same position as if he had never been sentenced.” See, United States v. Maldonado, 996 F.2d 598, 599 (2d Cir.1993); see also, United States v. Barnes, 948 F.2d 325, 330 (7th Cir.1991); United States v. Schoenhoff, 919 F.2d 936, 938 (5th Cir.1990). This requires, among other things, that the defendant be afforded a right of allocution, viz. that the defendant be permitted “to speak or present any information to mitigate the sentence.” Fed.R.Crim.P. 32(i)(4)(A)(ii); see also, United States v. Margiotti, 85 F.3d 100, 103 (2d Cir.1996). In, U.S. v. Johnson, 387 Fed.Appx. 105 C.A.2 (N.Y.),2010 the Defendant was convicted of murder in the course of a robbery in violation of 18 U.S.C. § 924(j)(1), among other offenses. In 2008, a panel of the Court of Appeals vacated defendant's life sentence and remanded for re-sentencing. See, United States v. Johnson, 273 Fed. Appx. 95, 101 (2d Cir.2008). On remand, the district court declined to conduct a new sentencing hearing and instead issued a new sentencing opinion once again sentencing defendant to life. In spite of defendant's protests, the district court did not allow defendant to be heard prior to imposing sentence. This was reversible error according to the Court of Appeals. Id. at 107. See, United States v. Gonzalez, 529 F.3d 94, 97 (2d Cir.2008); see also, United States v. Muhammad, 478 F.3d 247, 250-51 (4th Cir.2007).
Ah but you say, what of post-sentencing rehabilitation? Surely United States v. Pepper, 131 S.Ct. 1229 must be considered. In Pepper, the Supreme Court held that the District Court at re-sentencing may consider post-sentencing rehabilitation to support a non-guideline sentence. However, regarding limited remand orders, the Supreme Court provided the following in footnote 17:
Of course, we do not mean to imply that a district court must reduce a defendant’s sentence upon any showing of postsentencing rehabilitation. Nor do we mean to preclude courts of appeals from issuing limited remand orders, in appropriate cases, that may render evidence of postsentencing rehabilitation irrelevant in light of the narrow purposes of the remand proceeding. See, e.g., United States v. Bernardo Sanchez, 569 F.3d 995, 1000 (9th Cir. 2009).
Therefore, in cases where the mandate is a limited remand having a very narrow purpose (ie., determining if specific facts support a minimal enhancement) it appears the District Court is not required to consider post-sentence rehabilitation. But try anyway. 
Good Hunting.  

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