Saturday, November 09, 2013

Case o' The Week: Winning Isn't Everything (and Sometimes, It's Nothing . . . .) - Horob and Vindictive Sentencing on Remand

It goes to eleven.
(And it stays there).
United States v. Horob, 2013 WL 5943405 (9th Cir. Nov. 7, 2013), decision available here.

Players: Per curiam decision by Judges Silverman, Fletcher and Callahan.

Facts: Horob was a cattleman that made-up cows and concocted “investments” when faced with mounting losses. Id. Horob was convicted of a fraud-related charges and aggravated identity theft – a two-year mandatory-minimum consecutive count. Id. at *1. The district court departed downwards 27 months from the guidelines, and imposed a total ultimate sentence of 11 years. Id. Horob won part of his first appeal when the Ninth reversed the agg ID theft conviction. Id. The celebration was short-lived: on remand, the district court imposed an identical 132-month custodial sentence, despite the lack of the 2-year-consecutive, mand-min, agg ID theft count of conviction. Id. Horob appealed again.

Issue(s): “Horob contends that the district court acted vindictively when it imposed the same total sentence on remand.” Id. at *2.

Held: “[W]e hold that the presumption of vindictiveness does not apply when a district court does not impose a more severe sentence on remand, even when the vacated conviction carried a mandatory sentence.” Id. at *1. 
  “The presumption of vindictiveness does not apply to Horob because it is apparent that the district court considered his overall sentence at the time of his original sentence and again on remand, and because his overall sentence was not increased.” Id. at *2 (emphasis in original). 
  “A sentence is not more severe merely because a mandatory sentence has been eliminated if the overall sentence remains the same and there is no net increase in his punishment.” Id. (internal quotations and citation omitted).

Of Note: “Horob is understandably disappointed that his successful appeal . . . did not
Todd Kenneth Horob
result in a reduction of his final sentence, but this does not give rise to a presumption of vindictiveness.” Id. at *3. 
  The Ninth probably understates Horob’s disappointment. 
  The per curiam Court relies on authority that holds a sentence becomes “unbundled” on remand and re-sentencing – ergo, there’s no presumption of vindictiveness when the reversal of a two-year min-mand produces an identical prison (re)sentence. Id. at *4. This is a head-scratcher for us in the trenches: a defendant gets eleven years of custody when his “reasonable” sentence included a two-year mandatory minimum consecutive term, yet the “reasonable” term on a victorious remand, where the consecutive mand-min is gone, is identical? Maybe the district court felt that eleven years was just the right sentence the first time around, and jiggered a guideline variance to offset the mand-min to get there? 
  On its surface, Horob is about resentencing, but the opinion’s larger lesson is the lunacy of mandatory-minimum sentences. District courts think so little of agg ID theft mand-mins that guideline sentences are just “varied” to absorb these 2-year tails. It’s a rational approach– Section 1028A charges have much more to do with an individual AUSA’s mood than with the crime actually committed or the culpability of the defendant – but Horob reveals how nonsensical agg ID theft mand-mins really are.

How to Use: Maybe the real lesson of Horob is this: the Ninth won’t second-guess a district court for off-setting a Section 1028A mand-min by varying from the guideline range. Pretty clear that’s what happened here at the original sentencing, and it prompted nary a “tsk” from the Ninth. Granted, there’s that language in Section 1028A(b)(3) that discourages (er, prohibits) such an offset . . . but that didn’t get much traction in Horob.
For Further Reading: Mand-mins wrongly limit judicial discretion, unfairly increase prosecutorial discretion, shield bad police work by discouraging suppression litigation and trials, and produce inexplicable sentences like the one in Horob. They also cram prisons with more inmates than they can hold. For a compelling indictment of federal overcrowding – projected to 55% over capacity by 2023 – see the Urban Institute’s new report here

 Image of Mr. Horob from

Steven Kalar, Federal Public Defender N.D. Cal. Website at


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