Friday, July 16, 2021

US v. Valdez-Lopez, No. 20-10004 (Miller w/Forrest; Fletcher concurring).  Vindictiveness? What vindictiveness? That essentially is the holding when, upon resentencing 8 years after an unconstitutional sentence -- “hostage taking” was not a categorical COV -- a different judge from the original sentencing judge, who had retired, imposed a higher sentence. The original sentence was 240 months; the new sentence was 300 months. Why? Because the new sentencing judge gave greater weight to the impact on the victims of the hostage taking. The 9th upheld the new, greater sentence, because the presumption of vindictiveness under Pearce goes to vindictiveness by the same judge as opposed to a new sentencing by a different judge, who had granted the relief. Concurring, Fletcher agrees with the precedent but, as he writes: “What does not make sense, and should not be the law, is for a resentencing judge to impose a longer sentence when the only change in the record is the fact that petitioner successfully challenged part of the original sentences as unconstitutional.” (16).

The decision is here:


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