Tuesday, November 30, 2010

Case Remanded for Resentencing Due to Imposition of “General Sentence”

In United States v. Ward, No. 09-4271 (3d. Cir. October 27, 2010), the Third Circuit vacated a "general sentence"imposed by a district judge and remanded for resentencing in order to specify sentences on all counts.

Ward pled guilty to two counts of inducing a minor to engage in sexually explicit conduct in order to produce a visual depiction, two counts of shipping such depictions, and one count of making false statements to the U.S. State Department to obtain a visa.

At the sentencing hearing, the district court sustained the government’s objection to the Presentence Report and added two offense levels following testimony that some of the offenses included a second victim. The district court then imposed a general sentence on all counts, but did not identify a sentence for each count, along with an order for restitution but no fine. After the government indicated an inability to calculate the restitution, the court changed the restitution order to a fine.

The Defendant appealed arguing the sentence was procedurally and substantively unreasonable. The Third Circuit applied a two-step process: (1) addressing procedural errors by reviewing facts for clear error and applied a de novo review of legal rulings; and (2) addressing substantive reasonableness using an abuse of discretion standard by looking at the "totality of circumstances". Errors not raised at trial were subject to "plain error review."

Ward argued the trial court erred procedurally by finding that a second victim was involved. Applying U.S.S.G. § 2G2.1 and relevant conduct to the facts, the Third Circuit found no error in adding the two-level adjustment for a second victim.

The Third Circuit found that converting restitution into a fine was in error because of the manner in which it was done; no analysis was made by the district court explaining why a fine would be appropriate. Unfortunately this error did not result in a "manifest injustice" so there was no plain error.

However, the Third Circuit held that under § 5G1.2 and Application Note 1, sentencing courts must impose a sentence on each count. Failure to do so is plain error affecting the defendant’s substantial rights and resulting in "manifest injustice" because it doesn’t allow the defendant or appellate courts to determine whether the sentence was legal as to particular counts. The sentence was therefore vacated and the case remanded for resentencing.

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The District Court's indication of the sentence it would impose before the defendant allocuted was not reversible plain error.

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