Friday, January 14, 2005

Booker: Reassuring on remand

Some have worried about the ability to seek remand for cases on appeal, and have feared higher sentences in the district court on remand. Steve Hubachek of San Diego addresses both of those concerns in this e-mail.

I saw in the blog that people are fearful about bad resentencing in cases on appeal. It seems that it ought to be fairly easy to get a remand in the Ninth. In United States v. Castillo-Casiano, 198 F.3d 787, amended, 204 F.3d 1257 (9th Cir. 2000), (available here), the Ninth remanded for resentencing, on plain error, when the law changed on a particular ground for downward departure while Castillo's appeal was pending. The change was that during his appeal, the Ninth approved downward departures for less serious 16 point aggravated felonies. The defendant did not make such a request in the trial court, but the Ninth remanded anyway, emphasizing the discretionary nature of the departure decision. Now, of course, judges have far more discretion that that which justified the remand in Castillo-Casiano.

As for the fear factor, I think the same pressures that will cause judges to stick to the guidelines will discourage bad sentences on remand. But even if that sort of generalized concern does not work, the presumption of vindictiveness should. See generally United States v. Peyton, 353 F.3d 1080 (9th Cir. 2003) (available here). It seems to me that any time a judge gave a defendant less than the high end of the guideline range at the first sentencing, then that judge exercised his or her discretion in favor of a lower sentence that he or she could have given as a matter of pure discretion. How, then, could such a judge justify a higher sentence on remand without the presumption of vindictiveness applying? Similarly, even in high end cases, a judge who did not at least consider upward departures and conclude that they were unavailable would appear to be vindictive by giving a longer sentence on remand. Peyton itself makes clear that the presumption of vindictiveness is not a silver bullet. But I think it will provide a great deal of protection, particularly for those who did not receive the high end first time around.

Steve Hubachek, Supervising Attorney, Federal Defenders of San Diego, Inc.


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