Tag Archives: remand

No Implied Limits on Remand Resentencing – Update for February 24, 2020

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

UNODIR (NOT UNICOR)

UNODIR is useful military slang meaning “unless I am directed otherwise.” It is a good way to report to your boss that you intend to take a certain action, and put it on him to tell you not to before you do. This is not to be confused with UNICOR – the catchy acronym by which Federal Prison Industries, Inc., is known – a place that pays inmates top dollar for the manufacturing of everything from body armor to award plaques to office products to… yeah, even license plates.

A federal defendant’s criminal history has a great influence on his or her federal sentence: the more skilled you are in the ways of criminal conduct, the thinking goes, the more substantial your sentence should be, in order to get your attention.

doasyouretold200224After one of Markell Hamilton’s prior state convictions was vacated by an Iowa court, the 8th Circuit remanded his case “for resentencing to allow the district court to determine whether the state conviction was appropriately included in his criminal history score.” When Mark tried to challenge some relevant conduct alleged in the presentence report, the district court refused, holding that the scope of resentencing was limited to the issue involving Mark’s previous Iowa conviction, and ultimately reimposed the same 81-month sentence.

Last week, the 8th Circuit remanded again, holding that the district court was not prohibited on remand from considering other issues, too. “On remand for resentencing,” the Circuit said, “a district court can hear any relevant evidence that it could have heard at the first hearing,” except for issues decided by the appellate court. “Where a remand is limited to the resolution of specific issues, those issues outside the scope of the remand are generally not available for consideration… But where a court of appeals vacates a sentence or reverses a finding related to sentencing and remands the case for resentencing without placing any limitations on the district court, the court can hear any relevant evidence… it could have heard at the first hearing.”

United States v. Hamilton, 2020 U.S. App. LEXIS 5034 (8th Cir. Feb. 19, 2020)

– Thomas L. Root

2255 Remand Entitled to Full Resentencing – Update for October 30, 2019

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

OWN YOUR MISTAKE

It is gratifying to see a court admit that it screwed the pooch.

goofed191029Larry Flack pled guilty to two counts. Later, he filed a §2255 motion, he argued that a conviction for receipt of child porn and for a separate count of possession of child porn violated the 5th Amendment’s prohibition against double jeopardy. The district court denied him, but the 6th Circuit granted Larry’s motion on appeal. The Circuit issued a “general remand” order, with instructions to the district court to vacate one of the convictions. The remand order gave “the district court discretionary authority over which of Flack’s convictions to vacate and whether to conduct a resentencing hearing.”

The district court did just that, vacating Larry’s possession conviction but imposing the same 262-month sentence. In its order, the district court said it “need not conduct a resentencing hearing” because its previous sentence “properly accounted” for the sentencing factors listed in 18 USC § 3553. Larry appealed, arguing the district court abused its discretion by denying him a full resentencing hearing.

sentence170511Last week, the 6th Circuit agreed. “We have previously held,” the Circuit said, “albeit on direct review, that upon a general remand for resentencing, a defendant has a right to a plenary resentencing hearing at which he may be present and allocute.” Larry’s case was one of collateral review, the Court admitted, not direct review, “but the point of that decision is that a sentencing is sentencing, regardless of the docket entries that precede it. And a sentencing must occur in open court with the defendant present.”

The 6th admitted that “in this case the district court’s error was one that this court invited… The reason why the district court did not hold a resentencing hearing, in all likelihood, is that our remand order seemed to suggest that the court did not need to. But on this record that suggestion was mistaken.” The Court vacated Larry’s sentence and remanded for him to be resentenced pursuant to a sentencing hearing.

United States v. Flack, 2019 U.S. App. LEXIS 31573 (6th Cir. Oct. 23, 2019)

– Thomas L. Root