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Federal court addresses resentencing issue

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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.
 

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  1. He called our nation a nation of cowards because we didn't want to talk about race. That was a cheap shot coming from the top cop. The man who decides who gets the federal government indicts. Wow. Not a gentleman if that is the measure. More importantly, this insult delivered as we all understand, to white people-- without him or anybody needing to explain that is precisely what he meant-- but this is an insult to timid white persons who fear the government and don't want to say anything about race for fear of being accused a racist. With all the legal heat that can come down on somebody if they say something which can be construed by a prosecutor like Mr Holder as racist, is it any wonder white people-- that's who he meant obviously-- is there any surprise that white people don't want to talk about race? And as lawyers we have even less freedom lest our remarks be considered violations of the rules. Mr Holder also demonstrated his bias by publically visiting with the family of the young man who was killed by a police offering in the line of duty, which was a very strong indicator of bias agains the offer who is under investigation, and was a failure to lead properly by letting his investigators do their job without him predetermining the proper outcome. He also has potentially biased the jury pool. All in all this worsens race relations by feeding into the perception shared by whites as well as blacks that justice will not be impartial. I will say this much, I do not blame Obama for all of HOlder's missteps. Obama has done a lot of things to stay above the fray and try and be a leader for all Americans. Maybe he should have reigned Holder in some but Obama's got his hands full with other problelms. Oh did I mention HOlder is a bank crony who will probably get a job in a silkstocking law firm working for millions of bucks a year defending bankers whom he didn't have the integrity or courage to hold to account for their acts of fraud on the United States, other financial institutions, and the people. His tenure will be regarded by history as a failure of leadership at one of the most important jobs in our nation. Finally and most importantly besides him insulting the public and letting off the big financial cheats, he has been at the forefront of over-prosecuting the secrecy laws to punish whistleblowers and chill free speech. What has Holder done to vindicate the rights of privacy of the American public against the illegal snooping of the NSA? He could have charged NSA personnel with violations of law for their warrantless wiretapping which has been done millions of times and instead he did not persecute a single soul. That is a defalcation of historical proportions and it signals to the public that the government DOJ under him was not willing to do a damn thing to protect the public against the rapid growth of the illegal surveillance state. Who else could have done this? Nobody. And for that omission Obama deserves the blame too. Here were are sliding into a police state and Eric Holder made it go all the faster.

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  4. I grew up on a farm and live in the county and it's interesting that the big industrial farmers like Jeff Shoaf don't live next to their industrial operations...

  5. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

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