Tuesday, August 31, 2010

On Remand for Resentencing Without Specific Instructions, District Court May Consider Any New Evidence from Either Party Relevant to Issues Appealed

United States v. Carales-Villalta, No. 09-40468 (5th Cir. Aug. 26, 2010) (Jolly, Garza, Starrett, D.J.)

Let's say a defendant successfully appeals his sentence. What's in play on remand? As it turns out, this has been something of an open question in the Fifth Circuit: "This Court has not precisely stated what is proper for the district court to consider on remand absent a specific mandate." So it does so here:
It is important that the sentencing judge have sufficient information to mete out a fair sentence, but reconsidering all sentencing factors de novo on remand is unreasonable due to the passage of time and logistical considerations. In the absence of a specific mandate and in the interest of truth and fair sentencing, the district court may consider any corrections and additions relevant to the issues addressed by this Court on appeal. Therefore, when the case is remanded for resentencing without specific instructions, the district court should consider any new evidence from either party relevant to the issues raised on appeal. This Court may still, however, mandate a particular result or limit consideration to only particular evidence on remand when it is prudent to do so, and the district court would be bound under the law-of-the-case doctrine.

So how might that play out? Carales pleaded guilty to illegal reentry. At his first sentencing, he got an 8-level aggravated felony enhancement for a prior Texas conviction for delivery of cocaine. He appealed, arguing that the evidence did not exclude the possibility that the conviction could have been based on an offer to sell cocaine (which, prior to a 2008 amendment, was not "drug trafficking" under §2L1.2). The government conceded the error, and the court of appeals vacated and remanded for resentencing. On the second go 'round, the government offered Carales's judicial confession from the prior offense, which evidently showed that he committed the offense in a way that fit the §2L1.2 drug-trafficking definition. Carales appealed a second time, arguing that the government's concession in the first appealed barred it from offering any additional evidence concerning the prior conviction at the second sentencing. That would leave him exposed to, at most, a 4-level "any other felony" enhancement under §2L1.2.

The result:
This Court’s opinion [in the first appeal] vacated the sentence and remanded for resentencing because “the sentence enhancement was erroneous.” Id. It did not provide a clear indication that the government conceded that only a four-level enhancement should apply. Nor did the opinion purport to limit the ability of either party to present or the district court to consider other evidence on remand bearing on the issue of whether Carales’s prior offense was an aggravated felony because it involved actual possession of cocaine. Carales had equal opportunity to present any new evidence to the district court contrary to the judicial confession in support of his contention that the Texas conviction was not an aggravated felony. Accordingly, the district court properly considered the judicial confession in its sentence calculations on remand because it was relevant to the issue appealed.

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