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November 22, 2011

Sentencing court's second thoughts too late to benefit defendant

A little opinion from the Sixth Circuit today in US v. Hall, No. 10-3336 (6th Cir. Nov. 22, 2011) (available here), should serve as a poetic reminder to federal sentencing judges that sentencing second thoughts often come to late for defendants' benefit.   Here is how Hall starts along with a Shakespearean flourish toward the end of the opinion to make it a bit more memorable:

Eighteen days after originally sentencing Defendant-Appellee David Hall to eighteen years of imprisonment, the district court sua sponte resentenced him to three fewer years.   After fourteen days following the original imposition of sentence the district court lacked jurisdiction to resentence Hall; therefore, we must VACATE the district court’s revised sentence and REMAND for reimposition of the original sentence....

It is laudable that the district court seriously considered the sentence, returning again to the issues and prior statements of counsel to be certain that only the “appropriate” sentence would be imposed. That brings to mind Portia’s description of mercy:

The quality of mercy is not strain’d,
It droppeth as the gentle rain from heaven
Upon the place beneath. It is twice blest:
It blesseth him that gives and him that takes.

The Merchant Of Venice Act 4, scene 1, 180-87.  However, the Government seeks enforcement under Rule 35.   Thus, it appears that the “gentle rain” of mercy had to drop from heaven within fourteen days.  It took eighteen.

Because the district court lacked jurisdiction to resentence Hall more than fourteen days after originally imposing sentence, we are required to vacate the district court’s March 1, 2010 judgment and remand for reimposition of the original sentence announced on February 5, 2010.

Critically, Rule 35 also limits the reasons as well as the timing of any sentence correction by a district judge after the announcement of the initial sentencing, and a judge's decision to show a little more mercy after the fact would not appear to qualify as “arithmetical, technical, or other clear error” required by the Rule. A federal district judge needs to be mercurial and mistaken, as well as merciful, for a defendant to be able to benefit from a sentencing correction under Rule 35.

November 22, 2011 at 10:57 AM | Permalink


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I certainly hope that Hall will appeal the re-imposed sentence on substantive grounds and cite the district court's own calculus in support of that argument. Of course, I note that he did not timely appeal the original sentence--I'm not sure what, if any, impact that has on his right to appeal on that issue--it's never come up in my cases. I also note that court records show Hall has filed a 2255 alleging, among other things, that the lawyer he retained declined to file any reply whatsoever to the government's appeal.

Also notable: while FRCr.P Rule 35 counts the 14 days from the date of imposition of the sentence in open court, Rule 4 of the FRAP allowed the government 30 days from the date of the entry of judgment to file its notice. Had the government's time to appeal run from the same date the court's time to correct the sentence, its appeal would have been several days out of time, as it was filed on 3/30/10, 35 days after the re-sentencing hearing.

Posted by: FPD | Nov 22, 2011 4:25:59 PM

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