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August 2, 2007

The Eighth Circuit dealing with resentencing headaches

The Eighth Circuit today in US v. McMannus, No. 06-2447 (8th Cir. Aug. 2, 2007) (available here), seeks to sort through a variety of resentencing questions.  Here is the Circuit's official summary of the ruling:

On remand, the district court erred in setting defendant Brinton's sentence when it determined that the stipulation in her plea agreement that she had instructed her daughter to withhold information about the crimes was not sufficient to support a two-level enhancement for obstruction of justice. When this court remands a case for resentencing, the district court is limited to hearing evidence it could have heard at the first sentencing, and evidence of post-sentencing rehabilitation is not relevant to the resentencing and may not be considered; here, the district court erred in hearing extensive evidence of McMannus's post-sentencing conduct and in relying on this evidence in setting his sentence; fact that the court stated it would impose the same 24-month sentence without the evidence of post-sentencing rehabilitation cannot support the sentence as the remainder of the remand record is essentially similar to the record at the first sentencing, and this court has already held that a 24-month sentence was an unwarranted variance based on this record; sentences vacated and the cases remanded for resentencing.

Judge Melloy and Judge Smith, concurring, and suggesting that when a case is remanded for resentencing, the district court should be able, in exceptional situations, to consider evidence of post-sentencing rehabilitation when it sets the new sentence.

August 2, 2007 at 12:49 PM | Permalink

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Comments

I wonder if this was a Bennett case.
http://sentencing.typepad.com/sentencing_law_and_policy/2006/03/remarkable_dist.html

Posted by: | Aug 2, 2007 2:17:19 PM

Wait, wait. Does the Eighth Circuit have a different version of the Booker opinion than I do? The guidelines are still binding there? That rule about not considering events subsequent to the first sentence -- isn't that just advisory under the version of Booker I've seen?

Posted by: David in NY | Aug 2, 2007 3:16:27 PM

And where does Rita v. US fit in with this? Did the Eighth Circuit just ignore that language about how the sentencing court CANNOT presume that the guidelines are reasonable and the appellate court CANNOT presume that a sentence outside the ADVISORY guidelines range is unreasonable?

Posted by: defense attorney | Aug 2, 2007 3:27:58 PM

And does this sentence make anybody else think that the Eighth Circuit cannot read § 3553 or has completely gone off its rocker or both?

While it is difficult not to be swayed by
McMannus’s post-sentencing rehabilitation successes, allowing this evidence to
influence his sentence would be grossly unfair to the vast majority of defendants who
receive no sentencing-court review of any positive post-sentencing rehabilitative
efforts.

I mean, maybe this creates a disparity in sentencing (or maybe not), but it is surely a "warranted" disparity, sanctioned by a number of the factors in § 3553 itself. And it's pretty clear that the sentence being imposed is "greater than necessary" given his rehabilitation. So why can the court ignore this?

Posted by: David in NY | Aug 2, 2007 3:35:22 PM

And does this sentence make anybody else think that the Eighth Circuit cannot read § 3553 or has completely gone off its rocker or both?


No. A sentencing court is constrained by the statutory minimum and maximum, but in Rita, the court said that appellate courts are to do some kind of further substantive and procedural review of the sentence. It's unclear yet what that consists of, but the rule in McMannus hardly seems unreasonable. One hopes that the Eighth Circuit will apply it fairly and not allow the government to present additional aggravating evidence at a resentencing that wasn't available at the first sentencing proceeding...

Posted by: | Aug 2, 2007 5:21:49 PM

But, Mr./Ms. Anonymous at 5:21:49, exactly where does that rule come from, except the guidelines? Nowhere. And is it compelled by the actual authority, § 3553? No. In fact, it is contradicted by § 3553, since it permits a sentence "greater than necessary" to fulfill the aims of that section, as the Circuit essentially concedes. The only shred of authority for it is the "consideration" that there shouldn't be "unwarranted" disparity, § 3553(a)(6), but this is merely something to be considered. And here any disparity is plainly warranted by the defendant's rehabilitation. That rehabilitation is relevant to the fundamental considerations in subsection (a)(2) about the need for deterrence and to protect the public by incarceration.

There is simply no basis in § 3553 for reversing this court's exercise of discretion.

That you, and the Circuit, think the rule is not "unreasonable" does not make it the law or a proper construction of § 3553, which it is not. Such ad hoc, per se rules are about to bite the dust in Kimbrough, by the way.

Posted by: David in NY | Aug 2, 2007 5:39:51 PM

But, Mr./Ms. Anonymous at 5:21:49, exactly where does that rule come from, except the guidelines? Nowhere. And is it compelled by the actual authority, § 3553? No. In fact, it is contradicted by § 3553, since it permits a sentence "greater than necessary" to fulfill the aims of that section, as the Circuit essentially concedes.

The histrionics aren't necessary. One possible explanation is that the parsimony inquiry § 3553 is to be done at the time of sentencing. The statute states: The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. Although the statute is silent as to time, as the Eighth Circuit notes, defendants and prosecutors don't generally get to ask the sentencing court to revisit its sentence on the ground that, while the sentence was appropriately parsimonious at the time it was imposed, it has ceased to be appropriate in light of subsequent developments.

The "resentencing" is not a second bite at the apple for a new sentencing, but rather a directive for the district court to do correctly what it should have done the first time. I doubt that it comes from the Guidelines policy in the same way the crack/powder "disparity" does, but I'm open to being shown the light on that point.

That you, and the Circuit, think the rule is not "unreasonable" does not make it the law or a proper construction of § 3553, which it is not. Such ad hoc, per se rules are about to bite the dust in Kimbrough, by the way.

I also have high hopes for Kimbrough, but I'm mindful of the disappointments that the Supreme Court has given us in recent years. The Supreme Court has chosen to obfuscate more than clarify in recent years. Ginsburg screwed up Booker. Justice Breyer claims to be in Apprendi-land now, but can't let go of the Guidelines. As Prof. Berman explained a while back, Rita has something for everyone. Roberts and Alito are willing to make a fetish out of stare decisis... but I'm cautiously optimistic for Kimbrough and Gall.

Also, I'm not so vain as to suppose that my opinions are binding authority on anyone or objectively correct simply because I hold them. I also doubt that the Eighth Circuit misunderstands the authoritative character of its views.

Posted by: 5:21:49 | Aug 2, 2007 6:07:46 PM

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