Tuesday, November 12, 2013

United States v. Horob, No. 11-30119 (11-7-13) (Per curiam with Silverman, Fletcher and Callahan).

A defendant wins on appeal, getting a mandatory minimum sentence (aggravated identity theft) reversed. What will his new sentence be? If you say the same would be evidence of vindictiveness, you would be wrong, at least here. The defendant was in the cattle business, and he was increasing losing money. He bet the ranch, and lost, and so increasingly increased his herd to secure loans. Herds were invented in feedlots throughout the West. When it came time to see if the cows came home, at least for the banks, they didn't. The defendant did not have thousands of head of cattle but sixty. The defendant was convicted of bank fraud, bankruptcy fraud, money laundering and other offenses, including the aggravated identity theft (which was reversed). On resentencing, the court explained that his previous sentence, a variance, was so because of the mandatory minimum made the whole sentence appropriate. On resentencing, the court felt that 132 months was appropriate, and branded the defendant with it (it was a few months below the guidelines). The 9th, grabbing the vindictive bull by the argument horns, held that the sentence was not vindictive because the court displayed no vindictiveness, nor could the defendant point to any. No vindictiveness applies when a court resentences to the same overall sentence on remand, even when a vacated conviction carries a mandatory sentence. The court gave reasons here, and it helped that the overall sentence was under the guidelines and the court explained previously about the general time. The 9th distinguished the vindictive cases, and explained about re-bundling. A troubling opinion nonetheless for the implications that the same sentence would be rubber stamped.


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