Friday, August 04, 2006

Increased Sentence Following Post-Booker Remand Upheld

United States v. Quentin Singletary, Docket No. 05-6145 (2d Cir. July 19, 2006) (Cabranes, Straub, Hall): At his initial sentencing before the decision in Booker, the defendant was given an upward departure to a sentence of 42 months on his conviction for possessing crack with the intent to distribute it. He appealed, and the case was remanded for resentencing under the Supreme Court's decision in Booker. Upon remand the district court raised the sentence to 57 months' imprisonment, relying on facts all of which had been in the record before and noting that previously it had "felt constrained" by the guidelines, although since it was departing it had not been constrained in any legal sense, but was required only to impose a reasonable sentence, the same standard that applied post-Booker.

On his second appeal, the defendant argued pursuant to North Carolina v. Pearce that the sentence was presumptively vindictive and violated due process. The Court, however, held that the Pearce "presumption does not apply in this case because there is no reasonable likelihood that Singletary's increased sentence was the product of the sentencing judge's actual vindictiveness." This holding, however, is entirely circular. It does away with the Supreme Court's presumption of vindictiveness on the basis of its own finding that the district court was not vindictive. This is illogical on the one hand and in clear conflict with Pearce on the other.

That presumption the Supreme Court created in Pearce requires a higher sentence on remand to be struck down unless the government can overcome it by showing some factor, not present at the initial sentencing, that justified a higher sentence on remand. The Court acknowledged that there were no new facts at Singletary's resentencing justifying a higher sentence and that the district court had the legal power to impose the higher sentence at the first sentencing proceeding, but did not. The Court's alternate conclusion that, even assuming the presumption applied, "[n]othing in the record before us suggests that the district court had any vindictive motive" also gets things backward. If the presumption applies, as it clearly does to a resentencing following remand, the defendant does not have to prove a vindictive motive; rather, the government must overcome the presumption. Here, since there was nothing to overcome the presumption, there should have been a reversal.

The point of Pearce was to create a prophylactic rule that would safeguard a defendant's right to appeal from being chilled by the fear that a judge could raise his sentence vindictively, and it requires that an increased sentence be based on objective facts justifying a higher sentencing arising since the first sentence, not a judge's mere change of mind in the interim. This decision is in direct conflict with this objective of Pearce, and it poses grave problems for defendants and for those who must adivise them whether or not to appeal. It richly deserves to be overturned, summarily, by the Supreme Court.


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