Thursday, June 09, 2011

De Novo Sentencing Applies After Court Vacates Part of Interdependent Sentence, Remand for Full Consideration of Post-Sentencing Rehabilitation

In United States v. Diaz, No. 10-3337, the Third Circuit considered whether the district court correctly resentenced the defendant on remand after one count of an interdependent sentence was vacated. Diaz was convicted of one count of possession with intent to distribute heroin and two counts of possessing a firearm in furtherance of drug trafficking in violation of 18 U.S.C. § 924(c). The Third Circuit reversed and remanded for resentencing, holding that Mr. Diaz’s double jeopardy rights were violated because a second § 924(c) count must be based on a separate predicate drug offense. On remand, the defense argued that the district court should simply reduce the sentence by 120 months - the sentence originally associated with the vacated § 924(c) count. The district court treated its original sentence as interdependent, and held that resentencing de novo was appropriate so long as the Third Circuit did not direct otherwise. The district court considered the fact that the defendant was facing one less conviction. The defense also presented evidence of Diaz’s post-sentencing rehabilitation. The district court recognized Diaz’s post sentence rehabilitation, but explained that it was not a major factor in its new sentence. Accordingly, the district court reduced Diaz’s sentence by 80 months.

On appeal for the second time, the Third Circuit examined United States v. Miller, 594 F.3d 172, 181-82 (3d Cir. 2010) and United States v. Davis, 112 F.3d 118, 122 (3d Cir. 1997), which held that resentencing is to be conducted de novo when one count of an interdependent sentence is vacated. The Court also considered the “grouping” provisions of the United States Sentencing Guidelines embodied in U.S.S.G. § 4B1.1. The Court, quoting Davis, noted that “when a defendant is found guilty on a multicount indictment, there is a strong likelihood that the district court will craft a disposition in which the sentences on the various counts form part of an overall plan.” Thus, the district court is entitled to sentence de novo when one count imposing a mandatory sentence is vacated. Since Diaz’s original sentence was interdependent, the district court correctly resentenced Diaz de novo. The Court left open whether resentencing should be conducted de novo where one count of a non-interdependent sentence is vacated.

The Third Circuit also held that in light of Pepper v. United States, 131 S. Ct. 1229 (2011), which the Supreme Court issued after Diaz’s second sentencing, remand for a third resentencing was appropriate. The district court’s language was unclear, and left the Third Circuit concerned that the district court was not fully aware it could consider Diaz’s post-sentence rehabilitation. As Pepper later made clear, the district court may consider post-sentencing rehabilitation when sentencing de novo. Therefore, the Third Circuit remanded for another de novo sentencing to include a full consideration of Diaz’s post-sentencing rehabilitation.

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