United States v. Singletary, Docket No. 05-6145-CR, 2006 WL 2086023 (2d Cir. July 19, 2006) (found here)
Booker really is a two-way street. And, Singletary is a prime example of a trip down the side of the Booker street that a defendant does not want to be on.
Specifically, Singletary appealed his 42 month sentence. Because that sentence had been imposed under a mandatory Guidelines system (in other words, pre-Booker), the Second Circuit remanded Singletary for resentencing. As most defense attorneys know, such remands almost always result in the imposition of the same or a slightly lower sentence. In Singletary's case, however, the court imposed a harsher sentence -- specifically, a sentence of 54 months (1 year longer than his original sentence). And because of Booker, the Singletary court was wholly within its authority to do so . . . unless . . . it acted vindictively.
Singletary argued (based on North Carolina v. Pearce, 395 U.S. 711 (1969)) that a "presumption of vindictiveness" attaches to longer sentences imposed following remand for resentencing. The Second Circuit, however, rejected Singletary's arguments, and expounded on the presumption of vindictiveness applicable to longer sentences imposed upon remand in the post-Booker world.
The Second Circuit first noted that the presumption of vindictiveness exists not to prevent "enlarged sentences after a new trial" but rather "vindictiveness of a sentencing judge" in imposing sentence under those circumstances. As such, the presumption is limited "to circumstances where its objectives are thought most efficaciously served." The Second Circuit then went on to discuss the presumption of vindictiveness in greater detail. Specifically, the Second Circuit found that before vindictiveness may be presumed "there must be a reasonable likelihood that the increase in sentence is the product of actual vindictiveness on the part of the sentencing authority," which involves review to see if it is "reasonably likely that the District Court imposed the increased sentence because it was actually being vindictive." If such reasonable likelihood exists, "the sentencing authority . . . must rebut the presumption that an increased sentence . . . resulted from vindictiveness." If not, then the presumption does not apply and "the defendant must affirmatively prove actual vindictiveness."
As to establishing that "reasonable likelihood" for post-Booker resentencings, the Second Circuit went on to explain that a "significant intervening change in law, or a changed understanding of the law, can itself justify an increased sentence on remand, thereby precluding application of the Pearce presumption because it is not reasonably likely that vindictiveness motivated the increased sentence." And the Second Circuit concluded that "Booker caused such a change by permitting district courts to consider sentences that otherwise would have been impermissible under the legal regime in force at the time of the original sentencing." Thus and while the Second Circuit found that Singletary's arguments concerning his revised sentence were "far from frivolous," it found that the "presumption does not apply in this case because there is no reasonable likelihood that Singletary's increased sentence was the product of the sentencing judge's actual vindictiveness." Rather, the increased sentence was "reasonably likely" to have been based on the intervening change in law arising from Booker.
Comments