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May 5, 2005

Can a post-Booker resentencing lead to a sentence increase?

One of the many uncertainties in the post-Booker world is exactly what can and should happen during a post-Booker resentencing following a circuit remand.  Should prior (proper) guideline calculations be taken as given so that the chief question becomes whether the sentencing judge will now vary, or should the whole sentencing process start from scratch?  And, perhaps most important for defendants, can a district judge based on 3553(a) factors impose a sentence greater than initially imposed under the guidelines?

Judge Posner speaking for the Seventh Circuit has a lot to say on these issues today in US v. Goldberg, No. 03-3955 (7th Cir. May 5, 2005) (available here).  The defendant in Goldberg challenges the district court's application of a vulnerable victim enhancement, which provides Judge Posner an opportunity to discuss the different features of a Paladino remand for reconsideration as opposed to a remand for full resentencing. Here is a portion of what seems like a lot of important post-Booker dicta:

Goldberg is entitled to a limited Paladino remand because the judge based the enhancement on his own findings.  It is worth pointing out, however, that Goldberg may be better off with that relief than with his preferred relief, which is an order resentencing him.  Any resentencing would be conducted under the new, post-Booker regime, in which the guidelines are merely advisory, and so he'd be exposed to the risk of a higher sentence.... The judge might then decide that 52 months was too light a punishment for Goldberg's crime.  Although the sentence was at the midpoint of the guideline range, the range is now merely advisory. Judge Shadur made clear that he was disturbed by the magnitude of Goldberg's fraud and moved by the letters from which we quoted. He might want to give Goldberg a longer sentence, and if the departure were a reasonable one we would have to affirm.

We were surprised to learn that Goldberg's lawyer and — we understand from him, and from the argument of another criminal defense lawyer in an appeal argued before us the same day — other members of the defense bar as well believe that a sentence meted out in the pre-Booker era of mandatory guidelines is the ceiling in the event of a resentencing unless there are changed factual circumstances, such as additional criminal conduct by the defendant. If there are no such changed circumstances, Goldberg's lawyer told us, the inference would arise that any heavier sentence imposed on remand was vindictively motivated and therefore improper. That is a misunderstanding, and it is a misunderstanding dangerous to criminal defendants. When there is no relevant legal or factual change between sentence and resentence, the motive for an increase in punishment is indeed suspect. But Booker brought about a fundamental change in the sentencing regime. The guidelines, mandatory when Goldberg was sentenced, are now advisory. Were he to be resentenced, it would be under a different standard, one that would entitle the judge to raise or lower the sentence, provided the new sentence was justifiable under the standard of reasonableness. No inference of vindictiveness would arise from the exercise of the judge's new authority.

The risk that the judge might increase the sentence is not significant in a Paladino remand. Such a remand asks the judge whether he would have given the defendant a shorter sentence had he realized the guidelines are merely advisory. If so, this would show that his treating the guidelines as mandatory had been a plain error, and so we would vacate for resentencing. Since our basis for doing this would be the judge’s having told us that he wanted to shorten the defendant's sentence, it would be an unusual case, to say the least, in which the judge would impose a heavier rather than a lighter sentence; presumably it would be a case in which damaging new information had come to light since the Paladino remand. 

Tedder in contrast was a case in which we ordered the defendant resentenced because the judge had misapplied the guidelines, in which event he can impose a higher sentence because the guidelines are merely advisory. And this demonstrates that a defendant who appeals a pre-Booker sentence on the basis that the guidelines were misapplied (as in Goldberg's challenge to the vulnerable-victim enhancement) is playing with fire, because if he wins and is resentenced the judge will have more sentencing latitude, up as well as down, than he did when the guidelines were deemed mandatory.

Though I have no significant squabble with Judge Posner's vindictiveness analysis in Goldberg, I am troubled that he does not discuss or even seem to consider that due process/ex post facto principles may provide a ceiling on increasing a post-Booker sentence based on pre-Booker conduct.  That issue, which is significant not only for resentencing cases but also for initial sentencings post-Booker, has been discussed in the posts linked below:

UPDATETom Lincoln at PRACDL Blog in this post notes that counsel in Goldberg at oral argument did not raise the due process/ex post facto, which surely partially explains why Judge Posner did not consider it.  But I tend to expect Judge Posner to anticipate arguments that not raised by counsel, especially because this issue is potentially quite important for so many post-Booker cases.

May 5, 2005 at 03:37 PM | Permalink


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» The 7th Addresses Pros and Cons of Full v. Limited Post-Booker Remands (Sort of) from Puerto Rico Association of Criminal Defense Lawyers
From the 7th Circuit we get United States v. Goldberg, No. 03-3955 (7th Cir. May 5, 2005) in which defendant had been sentenced pre-Booker and was arguing on appeal a misapplication of the sentencing guidelines by the district court in imposing a vulne... [Read More]

Tracked on May 5, 2005 6:33:47 PM


Without expressing an opinion on the merits of the ex post facto issue, I would hope criminal defense lawyers are not blindly assuming the pre-Booker guideline will act as the maximum for re-sentencings pursuant to Booker. If I was representing a defendant who received a sentence in the mid-to-high range of the guideline, I would be wary, to say the least, of seeking re-sentencing. The grass isn't always greener on the other side. The ex post facto argument is certainly an interesting one, but seems very far from a slam dunk. I'd be interested to hear from lawyers who are faced with that decision, how you decide when to push the legal envelope possibly at the expense of your client?

Posted by: Anon | May 5, 2005 5:34:43 PM

I hope that I am not oversimplifying this, but it seems that 18 U.S.C. 3742(g), if properly requested, would offer protection against the district court jacking up the sentence upon remand. The trick, of course, is getting the reviewing court to give you the protections/limitations noted in 3742(g). Combining this with the Due Process argument might offer enough "comfort" to take the risk, but there will be a risk, nonetheless.

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