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NOT ALL HIGHER RESENTENCES ARE BECAUSE THE JUDGE DOESN’T LIKE YOU
It is an article of faith that if you win an appeal or § 2255 motion, a district court cannot increase your sentence the second time around, because to do so would be vindictive and violate the 5th Amendment.
The lead case on the subject, North Carolina v. Pearce, holds that “due process of law requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial, and that a defendant be freed of any apprehension of retaliatory motivation on the part of the sentencing judge. Accordingly, the reason for imposition after retrial of a more severe sentence must affirmatively appear in the record, and must be based on objective information concerning the defendant’s identifiable conduct after the original sentencing proceeding.”
Just as Pepper v. United States holds that a judge at resentencing may consider good post-sentencing conduct in imposing a lower sentence, a judge at resentencing may consider lousy post-sentencing conduct in hammering a defendant with a higher sentence.
Ask Carey Singleton. He was sentenced to 13 years for Hobbs Act robbery but got the sentence vacated on appeal. On resentencing, the Singletary was resentenced on July 6, 2021. Before the hearing, the government filed a revised sentencing memo reporting that Carey had gotten at least 15 shots (disciplinary infractions), including three “instances of weapons possession, three instances of threatening to harm correctional officers, five instances of disobeying lawful orders, one instance of lock tampering, and one sexual act.”
What’s more, Carey had since pleaded guilty to three state charges for an unrelated armed robbery he had committed in 2017. The government asked the court to run any new sentence consecutively to Carey’s state term.
Carey’s sentencing judge was “tremendously concerned” by these post-sentencing developments and resentenced him “taking into account new information, including the new convictions and the multitude of extremely serious infractions.” The court then imposed a 6-month increase from its initial 13-year sentence to the top of Carey’s advisory Guidelines range. And it ordered that the sentence run consecutively to Carey’s 10.5-year state sentence.
Carey appealed, arguing that the district court increased his sentence vindictively as punishment for his initial appeal. Last week, the 4th Circuit rejected his claim.
Pearce established a rebuttable presumption of vindictiveness “whenever a judge imposes a more severe sentence upon a defendant” after a successful appeal. To defeat this presumption, the district court must justify its increased sentence by identifying relevant conduct or events that occurred subsequent to the original sentencing proceedings.”
Here, the Circuit held, “the district court amply rebutted any presumption of vindictiveness by affirmative reference to objective, post-sentencing events… It described Singleton’s intervening disciplinary record at length, concluding that Singleton’s remorse at his initial allocution was a ‘false apology,’ and that his conduct in prison ‘showed us who he is.’ The new state convictions gave the sentencing judge further “insight” into Carey’s character, justifying the district court’s conclusion that the “conduct in the totality bespeaks a tremendous need for society to be protected from Carey Singleton.”
United States v. Singletary, Case No 21-4351, 2023 U.S. App. LEXIS 19775 (4th Cir. Aug 1, 2023)
North Carolina v. Pearce, 395 U.S. 711 (1969)
Pepper v. United States, 562 U.S. 476 (2011)
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– Thomas L. Root