No Presumption of Vindictiveness When Defendant Receives Higher Sentence On Remand From Different Judge Of the Same Court

United States v. Rodriguez, No. 09-20181 (5th Cir. Mar. 25, 2010) (King, Barksdale, Elrod)

From the be-careful-what-you-wish-for files: Rodriguez entered into plea agreement in exchange for 1) dismissal of some counts, and 2) the Government's promise not to seek offense level enhancements at sentencing. The Government then breached the agreement by defending the PSR's calculation of the Guidelines range, which included some of those enhancements. The district court agreed with only some of the PSR's recommendations, and imposed a low-end sentence of 37 months. Rodriguez appealed his conviction and sentence, arguing that the Government breached the plea agreement. The Fifth Circuit affirmed the conviction, but vacated the sentence and remanded for resentencing before a different judge. Judge 2 rejected Rodriguez's objections to the PSR, and imposed a low-end sentence of 47 months—10 months greater than Rodriguez received on the first go-round. Rodriguez appealed again, arguing that his 47-month sentence was either presumptively or actually vindictive.

First, a threshold issue: is Rodriguez's claim reviewable? The Government argued that the following statement by Rodriguez's counsel—after the sentence was imposed—amounted to either waiver or invited error. Responding to a question from the court as to whether he had "any argument on the mandate," counsel said:

Judge, he was ordered a re-sentencing. And from the looks of it, you have done, you have went through that file extensively. We reurged [prior counsel’s] objections, which were extensive; and you have just summed up exactly what you just did.

Said the court of appeals:

[T]hat reply, made after imposition of sentence, does not show counsel knew of the potential vindictiveness issue and chose intentionally to relinquish it (waiver). And, certainly, sentence having already been imposed, the reply did not induce the claimed error (invited error). Accordingly, the claimed error is reviewable[, albeit only for plain error].

One to keep in mind if you find yourself in the unfortunate position of having to refute a waiver/invited error argument by the Government.

On to the meat of the matter: "[North Carolina v.] Pearce held a presumption of vindictiveness arises when, after a new trial, a judge sentences a defendant to a harsher sentence. [cites omitted] At issue here is whether that presumption applies when a different judge of the same court imposes the new sentence."

Thus begins a lengthy exegesis of Fifth Circuit and Supreme Court case law on the subject. Long story short, the Fifth Circuit held that the presumption applies in these circumstances in United States v. Floyd, a case decided several years after Pearce. Floyd reached that conclusion, in part, because the resentencing-before-different-judge-on-remand scenario was what had happened in one of the two companion cases that comprised Pearce. But the Supreme Court has had a lot more to say about the presumption since Pearce, both before and after Floyd. In particular, there was Texas v. McCullough.

McCullough addressed whether the Pearce presumption applied where: a jury imposed the initial sentence; because of prosecutorial misconduct, however, the trial judge granted a new trial; upon retrial before the same judge, defendant asked that the judge, rather than the jury, impose sentence; and that judge imposed a greater sentence than had the jury for the first trial. The judge, on defendant’s motion, made findings of fact on why her sentence was greater.

(cites omitted). McCullough held that the presumption of vindictiveness does not apply in that situation. It acknowledged that Pearce itself involved a case with a different sentencer on remand, but noted that Pearce hadn't actually addressed this particular issue and—to the extent Pearce could be read otherwise—effectively overruled Pearce on this point. Therefore,

McCullough expressly rejected part of the basis for Floyd’s reasoning—there having been different sentencing judges in Pearce. Moreover, McCullough held having different sentencers was one of the primary reasons that the presumption was unnecessary. Restated, the possible same-court institutional and collegial pressures that were of concern to Floyd were held in McCullough not to require the presumption. Accordingly, we hold, as Rodriguez’ counsel conceded at oral argument, that Floyd was overruled by McCullough.

(You might be wondering why the court spent 11 pages analyzing this issue, given Rodriguez's concession. For starters, "[a]t oral argument, Rodriguez’ counsel conceded McCullough controls, but urged our criticizing McCullough as having strayed from the principles announced in Pearce." The court of course declined the invitation, but had to decide the issue for itself because it had never before considered whether Floyd survived McCullough.)

According to the court, seven other circuits "do not apply the presumption when different judges preside over the first and second sentencing." But some of them "hold the presumption is inapplicable in this different-sentencers situation only if the second states objective, non-vindictive reasons for imposing the greater sentence (added condition)." Although opining that "the evolved reasonable-likelihood-of-vindictiveness standard negates this added condition[,]" the court notes that it's good practice.

Neither party, however, has raised this added-condition issue. [cite]. In any event, as discussed infra, because the second judge stated more than sufficient reasons for the greater sentence, we do not need to reach the issue. In other words, even assuming the added condition is required, the record amply demonstrates that the second judge more than fulfilled that condition. Along that line, regardless of whether the added condition is required, the second judge should obviously state such reasons. They assist not only in our reviewing a vindictiveness challenge but also in reviewing other challenges to the sentence as well.

That's not the end of the matter, though. The court still had to "consider whether there was a reasonable likelihood that the increase in Rodriguez’ sentence was due to actual vindictiveness." And there wasn't:

Rodriguez contends the record shows the second judge acted vindictively because: he summarily overruled Rodriguez’ objections to the PSR; and, he did not allow the Government to contribute to the sentencing hearing. Neither matter even remotely suggests vindictiveness.

The record reflects that the second judge carefully considered Rodriguez’ objections. Moreover, Rodriguez has offered no authority requiring the second judge to state his reasons for denying them. [cite].

Rodriguez does, apparently, recognize the patent absurdity of his contention that the second judge’s stated intention not to engage the Government at resentencing somehow evinces vindictiveness. He admits in his reply brief that his contention creates a Catch-22 for the district court: according to Rodriguez, the second judge is vindictive for not having engaged the Government; but, had the judge done so, he would have caused the Government, once again, to breach its plea agreement. The record shows, as discussed infra, that the second judge was entitled to rely on other bases, negating any need to solicit input from the Government.

Again, there is simply no evidence of actual vindictiveness. Therefore, there was no error. In sum, our plain-error review for vindictiveness—presumed or actual—ends.

And so does this post.