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
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Hmmmmm ..... How does the good doctor's spells work on tyrants and unelected bureacrats with nearly unchecked power employing in closed hearings employing ad hoc procedures? Just askin'. ... Happy independence day to any and all out there who are "free" ... Unlike me.

  2. Today, I want to use this opportunity to tell everyone about Dr agbuza of agbuzaodera(at)gmail. com, on how he help me reunited with my husband after 2 months of divorce.My husband divorce me because he saw another woman in his office and he said to me that he is no longer in love with me anymore and decide to divorce me.I seek help from the Net and i saw good talk about Dr agbuza and i contact him and explain my problem to him and he cast a spell for me which i use to get my husband back within 2 days.am totally happy because there is no reparations and side-effect. If you need his help Email him at agbuzaodera(at)gmail. com

  3. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  4. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  5. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

ADVERTISEMENT