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Must Federal Resentencing Follow Original Approach?
Brief Synopsis: Criminal re-sentencing is not governed by any implied obligation honor the sentencing benefits or courtesies of a prior judge, as sentencing is redone according to the tendencies and discretion of the new judge assigned for sentencing. This can sometime result in a new sentence that while less than the prior sentence is at the high end of a sentencing range after a prior judge sentenced at the low end, as the following summary exemplifies.
In 2014, the U.S. Congress approved Amendment 782 to the federal Sentencing Guidelines, which retroactively amended the Drug Quantity Table, at U.S.S.G. § 2D1.1(c), thereby reducing by two levels the offense levels assigned to specified quantities of drugs. This meant many inmates in federal prison were eligible for a sentence modification under 18 U.S.C. § 3582(c)(2).
The following year, the government and the Office of the Federal Public Defenders (FPD) entered into a joint stipulation asking the district court judge to appoint the FPD to represent a specified list of defendants, including Vince Edward Wilson, and to reduce their sentences under § 3582(c)(2) as a result of Amendment 782.
In 2006, Wilson was convicted of eleven counts related to the transportation and sale of a controlled substance (Counts 1- 11); one count of possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c) (Count 12), and one count of being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1) (Count 13).
The Presentence Report (PSR) prepared for the district court grouped Counts 1 – 11 with Count 13. Under the Sentencing Guidelines, when counts are grouped together, the offense level assigned to the group is “the highest offense level of the counts in the Group.” U.S.S.G. § 3D1.3(a). Then applying the Drug Quantity Table in § 2D1.1(c)(2), the PSR calculated an offense level of 36 for the quantity of drugs involved in Counts 1 – 11.
U.S. Ninth Circuit Court of Appeals PasadenaThe PSR also applied a 2-level increase to the offense level because Wilson “was an organizer, leader, manager, or supervisor in the criminal activity.” § 3B1.1(c). The total offense level was 38.
The PSR determined that Wilson was in Criminal History Category III. Therefore, the Guidelines sentencing range for Counts 1 to 11 and 13 was 292 to 365 months. For Count 12, that statutory mandatory minimum sentence was 60 months, applied consecutively. 18 U.S.C. § 924(c)(1)(A)(i); U.S.S.G. § 5G1.2(e). Therefore, the PSR calculated the Guideline sentencing range for all counts as 352 to 425 months.
As Wilson’s sentencing in 2006, the district court (then Judge Takasugi) relied on the calculations set out in the PSR. For Counts 1 to 11, he chose a sentence for Wilson of 292 months (the low end). However, 292 months exceeded the statutory maximum sentence of 240 months for each of Counts 1 to 11. Under the Guidelines, “[i]f the sentence imposed on the count carrying the highest statutory maximum is less than the total punishment, then the sentence imposed on one or more of the other counts shall run consecutively, but only to the extent necessary to produce a combined sentence equal to the total punishment.” U.S.S.G. § 5G1.2(d).
Following this direction, the court sentenced Wilson to 240 months on each of Counts 1 to 11, to be served concurrently, and 52 months on count 13, to be served consecutively, for a total of 292 months. Finally, for Count 12, the court sentenced Wilson to 60 months, to be served consecutively. His total sentence was 352 months.
After Amendment 782 was passed and the Federal Public Defenders looked at the effect of the new Drug Quantity Table, the Federal Public Defenders and the prosecutors asked for Wilson’s sentence on Counts 1 to 11 to be reduced to 235 months, to be served concurrently, 52 months on count 13, to be served consecutively, and 60 months on Count 12, for 347 months.
Judge Hatter reduced Wilson’s sentence exactly as requested in the stipulation.
Three years later, however, Wilson filed a motion for reconsideration of the court’s sentence modification order. According to Wilson, to accomplish Amendment 782’s “full two-point reduction,” Judge Hatter should have disregarded the stipulation of Wilson’s attorney and the prosecution agreeing to a certain sentence and, on his own accord, given him the low end of the new Guidelines range (235 months) for Counts 1 to 11 and 13, plus 60 months for count 12, for a total of 295 months, not 347 months.
Judge Hatter denied the motion.
In October 2019, Wilson filed a second motion for sentence modification, this time arguing that Judge Hatter failed to realize that Judge Takasugi has allocated 52 months to Count 13 only because the low end of the Guidelines range for the grouped Counts 1 to 11 and 13 exceeded the statutory maximum sentence for Counts 1 to 11. After Amendment 782, the low end of the Guidelines range was less than the statutory maximum for Counts 1 to 11 and so there was no need to allocate 52 months to Count to run consecutively.
In order to effectuate Judge Takasugi’s intent to sentence Wilson to a low-end guideline sentence, Wilson argued, Judge Hatter should modify his current term of imprisonment so that the 52-month sentence for Count 13 ran concurrently with his sentence on Counts 1 to 11. In order words, Wilson was arguing that Judge Hatter erred by failing to give him the low-end of he Amended Guidelines range in 2015 as Judge Takasugi originally did in 2006.
Judge Hatter denied the second motion as well, pointing out that Wilson pointed to no authority that he was entitled to a reduction on his firearm-related sentence because it was grouped with his drug conviction on the Drug Quantity Table.
Wilson then appealed to the U.S. Ninth Circuit Court of Appeals in Pasadena, which affirmed Judge Hatter, stating that Judge Hatter had no obligation, on resentencing, to follow the same approach in sentencing as the prior judge. Moreover, the 347-month sentence is what Wilson’s attorney and the prosecution stipulated to.
We bring this article to the reader’s attention because it exemplifies a more common approach, we see in many of our clients, which I call ratcheting. Clients often believe plea bargaining should follow the same guidelines as negotiating to buy a car or a house, wherein it is bad faith or generally frowned upon to increase one’s offer in the process (as applied here, Wilson implied it was unfair for Hatter to not follow Takasugi’s approach), so the offers get ratchetted down, further and further. This does not apply in criminal plea bargaining or sentencing, as this case shows.
The citation for the United States Court of Appeals for the Ninth Circuit is United States v. Vince Edward Wilson (9th Cir., 2021) 8 F. 4th 970.
For more information about resentencing issues (including in the state court context of Prop 47), please click on the following articles:
