ILNews

Federal court addresses resentencing issue

Back to TopCommentsE-mailPrintBookmark and Share

A federal appellate court’s general remand for resentencing doesn’t necessarily mean a defendant will receive a lesser penalty or be able to introduce new arguments, the 7th Circuit Court of Appeals ruled Tuesday.

Issuing a 23-page opinion in United States of America v. Marlyn J. Barnes and Melvin B. Taylor, Nos. 11-1261, 11-1602, the federal Circuit panel tackled an issue that few courts have yet addressed since a key ruling from the Supreme Court of the United States came down in March.

In this case from the Northern District of Indiana, the appellate court examined a case that was before it for a second time after a panel in 2010 remanded for resentencing. The government in 2006 had indicted and charged Marlyn Barnes, Melvin Taylor and others with conspiring to possess and distribute more than five kilograms of cocaine. Barnes and Taylor were also charged with possessing a firearm in furtherance of drug trafficking. The two defendants in this case were the only two who proceeded to trial, and in separate trials, a jury convicted them on both counts. Barnes received a 292-month sentence with enhancements while Taylor received a 188-month sentence, and both appealed.

On first appeal, the 7th Circuit vacated those sentences and remanded because the judges found inconsistent facts that didn’t justify the sentences, and that the penalties appeared to be disparate when compared to the other co-conspirators.

At resentencing, Judge Theresa Springmann waived several new arguments that Barnes tried to raise and found he should have raised them during his first appeal. She factored in evidence that had been submitted post-trial and again sentenced him to 292 months. For Taylor, the judge resentenced him to 188 months as before after dismissing as waived the new arguments he tried to raise.

Both appealed, arguing that they were entitled to the District Court’s consideration of any and all arguments they might raise on resentencing. Specifically, they argued the SCOTUS ruling from March in Pepper v. United States, 131 S. Ct. 1229 (2011), required this because any appellate court’s general remand erases the original sentencing proceeding and any issues of waiver.

The 7th Circuit disagreed, and found the District judge’s revised sentences remained within the guidelines and are proper.

“We conclude that, upon a general remand for re-sentencing, a district court may permit new arguments and evidence as it deems necessary to re-fashion its sentence,” Judge Joel Flaum wrote for a panel that included Judges Michael Kanne and David Hamilton. “General remand does not, however, entitle the defendants to present new arguments and evidence beyond that pertinent to the issues raised on appeal. Allowing a district court to freely balance already and properly raised arguments to preserve or revise its sentencing objectives does not equate to carte blanche for defendants to raise new arguments unrelated to the issues raised on appeal.”

The judges noted that the SCOTUS hasn’t yet defined the scope of its Pepper holding and that no court has concluded Pepper operates to abolish waiver in the context of resentencing. They didn’t address the question of whether a District court must consider post-sentencing rehabilitation on a general remand, and left that for another day.
 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. If real money was spent on this study, what a shame. And if some air-head professor tries to use this to advance a career, pity the poor student. I am approaching a time that i (and others around me) should be vigilant. I don't think I'm anywhere near there yet, but seeing the subject I was looking forward to something I might use to look for some benchmarks. When finally finding my way to the hidden questionnaire all I could say to myself was...what a joke. Those are open and obvious signs of any impaired lawyer (or non-lawyer, for that matter), And if one needs a checklist to discern those tell-tale signs of impairment at any age, one shouldn't be practicing law. Another reason I don't regret dropping my ABA membership some number of years ago.

  2. The case should have been spiked. Give the kid a break. He can serve and maybe die for Uncle Sam and can't have a drink? Wow. And they won't even let him defend himself. What a gross lack of prosecutorial oversight and judgment. WOW

  3. I work with some older lawyers in the 70s, 80s, and they are sharp as tacks compared to the foggy minded, undisciplined, inexperienced, listless & aimless "youths" being churned out by the diploma mill law schools by the tens of thousands. A client is generally lucky to land a lawyer who has decided to stay in practice a long time. Young people shouldn't kid themselves. Experience is golden especially in something like law. When you start out as a new lawyer you are about as powerful as a babe in the cradle. Whereas the silver halo of age usually crowns someone who can strike like thunder.

  4. YES I WENT THROUGH THIS BEFORE IN A DIFFERENT SITUATION WITH MY YOUNGEST SON PEOPLE NEED TO LEAVE US ALONE WITH DCS IF WE ARE NOT HURTING OR NEGLECT OUR CHILDREN WHY ARE THEY EVEN CALLED OUT AND THE PEOPLE MAKING FALSE REPORTS NEED TO GO TO JAIL AND HAVE A CLASS D FELONY ON THERE RECORD TO SEE HOW IT FEELS. I WENT THREW ALOT WHEN HE WAS TAKEN WHAT ELSE DOES THESE SCHOOL WANT ME TO SERVE 25 YEARS TO LIFE ON LIES THERE TELLING OR EVEN LE SAME THING LIED TO THE COUNTY PROSECUTOR JUST SO I WOULD GET ARRESTED AND GET TIME HE THOUGHT AND IT TURNED OUT I DID WHAT I HAD TO DO NOT PROUD OF WHAT HAPPEN AND SHOULD KNOW ABOUT SEEKING MEDICAL ATTENTION FOR MY CHILD I AM DISABLED AND SICK OF GETTING TREATED BADLY HOW WOULD THEY LIKE IT IF I CALLED APS ON THEM FOR A CHANGE THEN THEY CAN COME AND ARREST THEM RIGHT OUT OF THE SCHOOL. NOW WE ARE HOMELESS AND THE CHILDREN ARE STAYING WITH A RELATIVE AND GUARDIAN AND THE SCHOOL WON'T LET THEM GO TO SCHOOL THERE BUT WANT THEM TO GO TO SCHOOL WHERE BULLYING IS ALLOWED REAL SMART THINKING ON A SCHOOL STAFF.

  5. Family court judges never fail to surprise me with their irrational thinking. First of all any man who abuses his wife is not fit to be a parent. A man who can't control his anger should not be allowed around his child unsupervised period. Just because he's never been convicted of abusing his child doesn't mean he won't and maybe he hasn't but a man that has such poor judgement and control is not fit to parent without oversight - only a moron would think otherwise. Secondly, why should the mother have to pay? He's the one who made the poor decisions to abuse and he should be the one to pay the price - monetarily and otherwise. Yes it's sad that the little girl may be deprived of her father, but really what kind of father is he - the one that abuses her mother the one that can't even step up and do what's necessary on his own instead the abused mother is to pay for him???? What is this Judge thinking? Another example of how this world rewards bad behavior and punishes those who do right. Way to go Judge - NOT.

ADVERTISEMENT