Tag Archives: resentencing

2255 Win Might Be A Pyrrhic Victory – Update for February 2, 2023

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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.

WINNING A 2255 IS ONLY HALF OF IT

It’s not easy to win a 28 USC § 2255 motion. And if you do win, you may still have nothing coming.

pyrrhic161230Jose Peña found that out. About 13 years ago, he was convicted of three counts of murders for hire (18 USC § 1958) and two counts of using a gun to commit the two crimes of violence (18 USC § 924(c)). Joe was sentenced to five concurrent life sentences. He lost his appeal.

In 2019, the Supreme Court held in United States v. Davis that an offense could qualify as a predicate “crime of violence” for purposes of § 924(c) only if it was a felony that “had as an element the use, attempted use, or threatened use of physical force against the person or property of another.” The district court then granted Jose’s § 2255 motion, throwing out the two § 924 convictions.

But the district court refused to resentence Jose. The life sentences for his three 18 USC § 1958 murder-for-hire counts, the Court said, were not affected.  So before the § 2255 Jose was serving life.  After the § 2255, he was still serving life.

hammer160509On appeal, Jose argued that when a conviction on one or more charges is overturned and the case remanded for resentencing, the “constellation of offenses of conviction has been changed and the factual mosaic related to those offenses that the district court must consult to determine the appropriate sentence is likely altered.” In a December ruling amended last week, the 2nd Circuit disagreed.

“Section 2255’s plain text,” the Circuit said, vests a district court “with the discretion to determine first the nature of the relief that may appear appropriate.” Extending the automatic resentencing rule from the direct appeal context to grant of a § 2255 motion “would be in tension with the narrow scope of Section 2255,” the Circuit said. “At least in the context of a ‘truly interdependent sentence’ such as where a mandatory consecutive sentence affects the applicable offense level under the guidelines, the language of § 2255 provides sufficient statutory authority for a district court to exercise its jurisdiction to resentence defendants ‘as may appear appropriate.'”

United States v. Peña, 55 F.4th 367 (2d Cir. 2022) (amended January 27, 2023)

– Thomas L. Root

How Much of a ‘Mulligan’ Should a Resentenced Defendant Get – Update for February 10, 2022

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DO-OVER REQUIRED

mulligan190430Javier Fuentes-Rodriguez illegally reentered the United States after having been previously convicted of an aggravated felony. Such reentry violates 8 USC § 1326(b)(2). Javier got 30 months in prison. While his appeal was pending, the Supreme Court decided Borden v. United States, which held that any crime that could be committed recklessly did not fit the “crime of violence” definition, which requires purposeful action.

Before Borden, Javier’s prior felony – Texas family violence – had been considered “aggravated” under 18 USC § 16(b). But it is possible to commit Texas family-violence assault recklessly, and after Borden, the government and Javier agreed he was only guilty of illegal reentry after a non-aggravated assault (8 USC § 1326(b)(1)).

What’s the difference? There’s no difference in the Guidelines necessarily, but – as the 5th Circuit put it – “1326(b)(2) is associated with worse collateral consequences than 1326(b)(1).” What that means is that if Javier is convicted for unlawful reentry after committing an “aggravated felony,” he can never come back legally.

Javier and the government agreed that after Borden, his conviction under 1326(b)(2) had to be changed, but the question was how to change it. Javier wanted the case remanded, at which time the judge could presumably give him a much better sentence, departing downward if the judge chose to do so. The government simply wanted the sentence reformed by the 5th Circuit, changing the number of the statute of conviction without changing the sentence.

violence151213Javier’s position made some strategic sense for the defense. It’s possible (even if improbable) that the judge’s sentence was influenced because of her perception Javier had slapped around his wife (or whatever the facts were). A resentencing would let Javier’s lawyer argue something like, “See, it wasn’t so bad.” Even if that argument had not worked, the defense is always entitled to argue the defendant’s excellent prison record as a factor to mitigate a new sentence.

Would it have worked? We’ll see. Last week, the 5th Circuit remanded the case. “We acknowledge that in [a similar case], our court reformed the judgment directly rather than remanding for entry of an amended judgment by the district court, and we could do the same here, coming to the same result,” the 5th held. “However, due to the frequent use of district court judgments of conviction by judges, attorneys, and others, we find remanding this case for entry of an amended judgment will reduce the risk of future confusion.”

United States v. Fuentes-Rodriguez, Case No 15-40740, 2022 U.S. App. LEXIS 551 (5th Cir., Feb 3, 2022)

– Thomas L. Root

Sentencing Sanity the 3rd, 7th Circuits – Update for September 23, 2020

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THREE FIRST STEP/FAIR SENTENCING DECISIONS OF NOTE

Last week was a good one for the First Step Act.

Sentencestack170404Hector Uriante was convicted of running with a gang that kidnapped and robbed drug dealers, including several 18 USC 924(c) counts that got stacked in the pre-First Step days. On the first 924(c) count, he got seven years for brandishing, but the brandishing was found by the judge, not the jury. On direct appeal, the Circuit remanded the case for resentencing because of Alleyne v. United States‘ holding that the jury had to find facts supporting an enhanced mandatory minimum.

The district court resentenced him last year, after First Step passed, but the judge still stacked his 924(c) counts, giving him 25 years for the second one. The district judge held that since Hector was first sentenced before First Step passed, the Act’s ban on stacking 924(c) convictions did not apply.

Last week, the 7th Circuit reversed in an en banc opinion that rejects the 3rd Circuit decision in United States v. Hodge. Because the prior sentence had been vacated, the 7th said, it was a “nullity.” A vacatur “wipes the slate clean,” meaning that at the time First Step passed, Harry was convicted and awaiting sentencing. Congress wrote First Step’s changes in 924(c) stacking to “apply to any offense that was committed before the date of enactment of this Act, if a sentence for the offense has not been imposed as of such date of enactment,” making no distinction between defendants who had never been sentenced and those whose sentence had been vacated fully and who were awaiting the imposition of a new sentence. “In this way,” the Circuit explained, “Congress stanched, to the degree that it could without overturning valid and settled sentences, the mortmain effect of sentencing policies that it considered no longer in the Nation’s best interest. It ensured, moreover, all persons awaiting sentencing on the effective date of the Act would be treated equally, a value long cherished in our law.”

So Hector’s good fortune in getting his sentence overturned under Alleyne, which appears to have saved him two years, in fact reduces his sentence by a full 22 years (two years off the 7-year “brandishing” sentence and a reduction of the second 924(c) sentence from 25 to five years).

conspiracy160606The 7th Circuit last week held that the same rule benefitted Rashod Bethany. Rashod was sentenced for a crack conspiracy in 2013, but later won a § 2255 motion on the grounds his lawyer erred in letting the court use the wrong edition of the Guidelines. He was resentenced after First Step passed, but his sentencing court would not let him benefit from the lower drug mandatory minimums passed in § 401 of the Act.

The 7th said that same rule applied. The § 2255 motion vacated his sentence, so Rashod was in the same position as a defendant who had never been sentenced. The Circuit remanded the case to district cout for a ruling of whether the sentence would have changed if lower mandatory minimums had been applied.

Finally, in the 3rd Circuit, James Easter had filed for a resentencing under First Step § 404, the section that made the 2010 Fair Sentencing Act retroactive. The court decided that James was eligible for a reduction, but denied him one because, the judge concluded, James’s Guidelines range did not change even if the FSA was applied.

James appealed, arguing that a district court had to consider the sentencing factors in 18 USC § 3553(a), not just a mechanistic look at the guidelines. Last week, the 3rd Circuit agreed.

While other circuits generally agree that minimum, a district court may consider the § 3553(a) factors, the 3rd said a judge must do so. “Section 404(b) uses the word ‘impose’ twice, and the first instance clearly refers to the act of imposing the original sentence.” The Circuit ruled. “Because Congress used the same word, we can infer that it conceived of the district court’s role as being the same when it imposes an initial sentence and when it imposes a sentence under the First Step Act. As the text of § 3553(a) makes clear, district courts look to the factors set forth there whenever they impose a sentence on a defendant.”

The 3rd Circuit joins the 4th and 6th Circuits in adopting the rule.

United States v. Uriarte, 2020 U.S. App. LEXIS 29234 (7th Cir. Sept 15, 2020)
United States v. Bethany, 2020 U.S. App. LEXIS 29246 (7th Cir. Sept 15, 2020)
United States v. Easter, 2020 U.S. App. LEXIS 29243 (3d Cir. Sept 15, 2020)

– Thomas L. Root

Timing Is Everything – Update for March 17, 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.

A DISTINCTION WITH A DIFFERENCE

gunb160201Clint Rumley had amassed quite a record by the time he was convicted of being a felon in possession of a gun under 18 USC 922(g)(1). He had over 20 prior state convictions, with five of them eligible predicate crimes of violence or drug offenses that would let the district court sentence him to a minimum 15 years under the Armed Career Criminal Act. Clint’s presentence report identified four of the prior convictions as supporting the ACCA sentence enhancement, one more than the minimum three priors called for by the ACCA.

When Johnson v. United States – a 2015 Supreme Court case that substantially narrowed what crimes could be considered crimes of violence – came along seven years into Clint’s 15-year sentence, he filed a post-conviction motion under 28 USC § 2255 to have his ACCA sentence set aside. The district court agreed with Clint that two of the four predicate convictions identified in the presentence report no longer counted, and vacated his 15-year sentence. But when Clint was resentenced, the new PSR noted that one state conviction not previously relied on for as qualifying as an ACCA predicate should have been counted against him. That conviction, plus the two priors that remained crimes of violence under the ACCA, got Clint resentenced to 15 years.

Clint appealed, relying on a 4th Circuit decision, United States v. Hodge. Hodge held that the government was not allowed to oppose a 28 USC 2255 motion raising Johnson claims by arguing that a prior conviction that had not been designated during the sentencing proceeding should have been counted as an ACCA predicate. But last week the 4th Circuit said Hodge was different, and upheld Clint’s new 15-year sentence.

In Hodge, the Circuit ruled, “we explained that defendants have a right to adequate notice of the government’s plan to seek an ACCA enhancement and of the convictions that may support that enhancement” (typically done by listing the supporting convictions in the PSR). When the government opposed a § 2255 motion by arguing that there were other convictions that could have been used to support an ACCA, the Circuit said, it shifted the burden of proof: while “at the sentencing the government has the burden of proving the defendant has three prior ACCA-qualifying convictions… on collateral review, the defendant has the burden of proving that the convictions supporting his ACCA enhancement are infirm.”

judge160425The Hodge concerns, however, do not arise in a full resentencing like the one Clint got. ‘The court conducted a full sentencing hearing, at which it received evidence and made findings of fact,” the Circuit said. Unlike Hodge, Clint “had adequate notice of the designated predicate convictions, giving him a full opportunity to challenge them. Moreover, the 2019 sentencing proceeding was conducted under the burdens of proof applicable in every sentencing, and our review is conducted under direct appeal standards, rather than on standards applicable to review of collateral proceedings.”

United States v. Rumley, 2020 U.S. App. LEXIS 8128 (4th Cir. Mar. 13, 2020)

– Thomas L. Root

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

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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

Enough is Still Too Much in the 6th Circuit – Update for October 16, 2018

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WHEN TIME SERVED AIN’T GOOD ENOUGH
Sweet Brown should have been Steve's judge.
Sweet Brown should have been Steve’s judge.

Steve Mitchell did 17 years on a 21-year Armed Career Criminal Act conviction before his sentencing court, applying Johnson v. United States, held that one of his three predicate crimes of violence was not violent at all. The District Court sentenced him to time served plus three years of supervised release, and cut him loose.

Steve appealed. Yeah, you read that right. He appealed the decision that set him free. But Steve’s claim was anything but frivolous: he argued that because his conviction for being a felon in possession of a gun (18 USC 922(g)) could not be enhanced by the ACCA, the maximum sentence was only 10 years, and the District Court should have resentenced him to 10 years, not time served (which worked out to 17 years). What Steve wanted, of course, was for the District Court to recognize that he had served seven years extra, and therefore cut him loose from supervised release, too.

Last week, the 6th Circuit agreed with Steve that his “time-served” corrected sentence is unlawful. Absent the ACCA enhancement, Steve could have received only a ten-year-maximum sentence. But when the district court corrected his sentence to remove the enhancement, it gave him a “time-served” — or 17-year – sentence. The Circuit said that sentence in excess of the statutory maximum is unlawful.

doover181015The appellate court remanded Steve’s case to the district court for a re-do that recognized (1) a time-served sentence that is equivalent to a term-of-months sentence above the statutory maximum is invalid, and (2) while a district court has the discretion to select appropriate proceedings for correcting a sentence, the corrected sentence must comply with substantive and procedural reasonableness.

The Circuit did not rule on the district court’s reimposition of 3 years’ supervised release, holding that “on remand, the district court should take the opportunity to provide an appropriate rationale for its supervised release decision.”

Who knows? Maybe the sentencing court will decide that Steve has suffered enough.

United States v. Mitchell, Case No. 17-5904 (6th Cir. Oct. 10, 2018)

– Thomas L. Root
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Wish You Were Here – Update for January 24, 2018

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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.

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2255 RESENTENCING REQUIRES DEFENDANT’S ATTENDANCE

jazzman180124Jazzman Brown, convicted of being a felon in possession of a gun, and punished with a 15-year sentence under the Armed Career Criminal Act, went back to court after the Supreme Court’s decision in Johnson v. United States. His sentencing judge agreed with him that after Johnson, his prior offenses could no longer be considered crimes fo violence, meaning that the ACCA 15-year sentence was invalid.

Jazzman naturally figured the sentencing judge bring him back for resentencing. After all, there was only a single count of conviction, and so everything was in play again. [This is where we ought to drop in a line about the defendant’s desire to take the stand at sentence, so we could slip in the phrase, “When the Jazzman’s testifying…” But we have too much self-respect to do that].

So he was dismayed when the district court, after vacating his 15-year sentence, resentenced him to 10 years – the max under 18 USC 922(g) – without ever giving him a chance to appear and be heard.

wish180124Last week, the 11th Circuit reversed. While admitting that there were probably cases where a defendant could be resentenced without a formal hearing, the Court said Jazzman’s “original sentence was set by the mandatory minimum under the ACCA… When that sentence was found to be in error, his new sentence was imposed under a different statutory provision, 18 U.S.C. 924(a)(2). As a result, the only statutory basis for Mr. Brown’s sentence was invalidated, and the District Court was required to resentence him under a new statutory provision, with a new sentencing guidelines range. Because the sentence on Mr. Brown’s one and only count of conviction was found to be in error, Mr. Brown’s entire sentence was necessarily undermined, and the District Court was tasked with crafting an entirely new sentence. As a result, Mr. Brown was entitled to a resentencing hearing.”

United States v. Brown, Case No. 16-14267 (11th Cir.  Jan. 18, 2018)

– Thomas L. Root

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