Archive for the ‘Resentencing’ Category

Even after third remand, district court refuses to sentence defendant to term of imprisonment and insists on probation.

Thursday, February 4th, 2010

U.S. v. Livesay, 587 F.3d 1274 (11th Cir. 2009)

Giving new meaning to the phrase “some guys have all the luck,” this case involves a defendant who, in 2004, pled guilty to conspiracy to commit wire fraud, securities fraud, and falsifying books and records; falsely certifying financial information filed with the SEC; and a forfeiture count. At sentencing, the district court considered the PSI, which recommended a sentence from 78 to 97 months, 2 to 3 years of supervised release and a fine range of $12,500 to $1million and then granted the government’s motion for a downward departure and imposition of 60 months imprisonment. However, after the recommendations, the judge sentenced the defendant to 60 months of probation.

The government appealed and the Eleventh Circuit Court reversed, holding the district court failed to state reasons for its extreme downward departure. At the resentencing, the same district court judge imposed the same sentence as before. Again, the government appealed and the appellate court reversed, finding both the district court’s departure and the sentence imposed unreasonable given the defendant’s role in a massive fraud scheme.

The defendant filed a writ of certiorari and the Supreme Court granted the petition, vacated the appellate decision and remanded for reconsideration with Gall v. United States, 552 U.S. 38 (2007). At the second resentencing, the original judge recused himself. The new assigned judge agreed with the sentencing range of 78 to 97 months and granted the government’s 5k1 motion, yet only imposed 5 years of probation.

The government appealed for the third time and the appellate court, considering Gall, and the §3553(a)(2) factors, reversed, stating “only the imposition of a meaningful period of incarceration will meet the goals that Congress laid out in the sentencing statute”. To be continued.

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Posted in Conspiracy, Resentencing, downward variance | No Comments »

“Except” clause in 18 U.S.C. Section 924(c) does not limit consecutive sentences and does not violate the Double Jeopardy clause.

Friday, January 29th, 2010

U.S. v. Tate, 586 F.3d 936 (11th Cir. 2009)

Convicted of four counts of armed bank robbery, three counts of using a firearm during a crime of violence, and one count of bank robbery, the defendant was sentenced to a total of 946 months to be served consecutively. Among other issues on appeal, the defendant maintained that the district court erred when it sentenced him to consecutive terms of imprisonment because the “except”  clause in 18 U.S.C Section 924 (c) only requires a total sentence of 25 years on the multiple violations of the section. Moreover, he argued that it was unreasonable for the district court not to vary downward under 18 U.S.C. Section 3553(a).

The appellate court disagreed with all of the defendant’s arguments on appeal, and affirmed the conviction and sentence imposed. The Court held that, in accordance with every circuit other than the Second Circuit, the plain language of Section 924(c) does not limit consecutive sentences imposed for the section offenses and underlying drug crimes and does not violate the Double Jeopardy Clause. It also found that the defendant failed to meet his burden of showing that the district court imposed an unreasonable sentence. Considering the totality of the circumstances, including the fact that the defendant’s criminal career began when he was a teen, the court considered the sentence substantively reasonable.

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Posted in Resentencing, Sentencing Guidelines | No Comments »

District court erroneously dismissed first indictment containing error and sentenced defendant on plea to second indictment, violating the double jeopardy clause.

Wednesday, September 30th, 2009

US v. McIntosh, 2009 WL 2611294 (August 27, 2009)

The defendant pleaded guilty to an indictment alleging drug and firearm charges and the district court accepted the plea. However, before the defendant was sentenced, the government realized that the wrong date of offense was alleged in the indictment. It, therefore, secured a second indictment from the grand jury with the correct date. The defendant moved to dismiss this second indictment as barred by the Double Jeopardy clause, but the district court denied this motion. The defendant conditionally pleaded guilty to the second indictment. The district court then dismissed the first indictment, accepted the plea on the second, and sentenced the defendant to 120 months imprisonment. On appeal, the Eleventh Circuit determined that the defendant’s first plea, accepted unconditionally by the district court, was a conviction and jeopardy had attached therefore the second indictment for the same offense violated the Double Jeopardy clause. The appellate court found that the district court erred when it denied the defendant’s motion to dismiss the second indictment. Finding that the error in the original indictment was one of form, not substance, and thereby not fatally defective, the Court vacated the defendant’s judgment of conviction and remanded it back to the district court with instructions to dismiss the second indictment.

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Posted in Jurisdiction, Procedure, Resentencing, Uncategorized | No Comments »

District court must consider Section 3553(a) factors in deciding to reduce a sentence under Amendment 706.

Friday, August 7th, 2009

U.S. v. Douglas, 2009 WL 2244519 (July 29, 2009)

The defendant was sentenced to 188 months for crack-cocaine conviction and filed a motion to reduce his sentence under Amendment 709 to the Sentencing Guidelines. The District Court summarily granted the motion without a hearing or a response from the government. The court used a standard form order but did not mention 18 U.S.C. Section 3553(a) or the factors, nor did it explain its decision to sentence the defendant to 162 months-the high end of the recalculated guidelines. The Eleventh Circuit affirmed the District Court’s refusal to grant defendant’s request for a sentence below the amended guidelines range, but vacated the newly imposed sentence and remanded back to the district court for further consideration of the Section 3553(a) factors and explanation.

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Posted in Booker, Resentencing, Sentencing Guidelines, downward variance | No Comments »

The District Court made procedural errors in applying the Guidelines.

Tuesday, July 28th, 2009

U.S. v. Gupta, 2009 WL 1749046 (11th Cir. June 23, 2009)

The defendants were convicted of conspiracy to submit false Medicare claims. This third appeal involves fundamental errors about the sentencing of the Defendant, Gupta, and whether to reassign the case to a Fourth District Judge for sentencing.  The court not only failed to calculate loss, but also, erroneously, it reduced the defendant’s offense level by two points for acceptance of responsibility. Because it employed an arbitrary approach, the District Court did not identify a basis for the loss found. Moreover, the court credited the defendant with two points for accepting responsibility but the defendant continuously challenged and contested the government and made clear that he thought he was innocent.

The District Court imposed an unreasonable sentence.

The court believed that the District Court’s refusal to set aside its feelings is more pronounced after a third appeal and second reassignment request, therefore, to preserve in the public mind the image of absolute impartiality and fairness of the judiciary, the case had to be reassigned.

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Posted in Resentencing, Sentencing Guidelines | No Comments »

In a limited remand for resentencing, the sentencing court is restricted to only those issues specifically that form the basis of the remand, with some limited exceptions.

Monday, April 27th, 2009

U.S. v WILLIAMS, 2009 W.L. 817498 (11th Cir. March 31, 2009)

The defendant appealed a life sentence for possession of crack cocaine, imposed at resentencing following a remand by the court of appeals. In Williams I, the court had remanded to the district court directing the court to give reasons why a life sentence on this 26 year old defendant was appropriate. In this appeal, the defendant argued that the district court interpreted the Court of Appeal’s mandate too narrowly and failed to consider 3553(a) factors in order to impose a lesser sentence. In other words the district court treated the guidelines as mandatory. The Court rejected the challenge finding that this was a limited remand restricting the district court from revisiting issues already affirmed. As the district court complied by giving reasons which included failure to take responsibility for his actions, his lengthy criminal history, the need to promote respect for the law, deterrence and the need to protect the public.

The exception to the restriction on a limited remand.

The only exception to a limited remand is for an intervening change in controlling law. The defendant argued that the Florida Supreme Court had held recently that BOLEO conviction is not a forcible felony for the purpose of sentencing enhancement under Florida’s violent career criminal statute and for that reason the district court erred in classifying him as a career offender. The court already rejected this argument in United States v. Johnson, 528 F.3d 1318 (11th Cir. 2008), cert. granted, __ S. Ct.___, 2009 WL 425080 (Feb. 23, 2009), and although it is pending review in the U.S. Supreme court it is still controlling law.

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Posted in Resentencing, Sentencing Guidelines, sentence enhancement | No Comments »