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
2015 Distinguished Barrister &
Up and Coming Lawyer Reception

Tuesday, May 5, 2015 • 4:30 - 7:00 pm
Learn More


ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. The $320,000 is the amount the school spent in litigating two lawsuits: One to release the report involving John Trimble (as noted in the story above) and one defending the discrimination lawsuit. The story above does not mention the amount spent to defend the discrimination suit, that's why the numbers don't match. Thanks for reading.

  2. $160k? Yesterday the figure was $320k. Which is it Indiana Lawyer. And even more interesting, which well connected law firm got the (I am guessing) $320k, six time was the fired chancellor received. LOL. (From yesterday's story, which I guess we were expected to forget overnight ... "According to records obtained by the Journal & Courier, Purdue spent $161,812, beginning in July 2012, in a state open records lawsuit and $168,312, beginning in April 2013, for defense in a federal lawsuit. Much of those fees were spent battling court orders to release an independent investigation by attorney John Trimble that found Purdue could have handled the forced retirement better")

  3. The numbers are harsh; 66 - 24 in the House, 40 - 10 in the Senate. And it is an idea pushed by the Democrats. Dead end? Ummm not necessarily. Just need to go big rather than go home. Nuclear option. Give it to the federal courts, the federal courts will ram this down our throats. Like that other invented right of the modern age, feticide. Rights too precious to be held up by 2000 years of civilization hang in the balance. Onward!

  4. I'm currently seeing someone who has a charge of child pornography possession, he didn't know he had it because it was attached to a music video file he downloaded when he was 19/20 yrs old and fought it for years until he couldn't handle it and plead guilty of possession. He's been convicted in Illinois and now lives in Indiana. Wouldn't it be better to give them a chance to prove to the community and their families that they pose no threat? He's so young and now because he was being a kid and downloaded music at a younger age, he has to pay for it the rest of his life? It's unfair, he can't live a normal life, and has to live in fear of what people can say and do to him because of something that happened 10 years ago? No one deserves that, and no one deserves to be labeled for one mistake, he got labeled even though there was no intent to obtain and use the said content. It makes me so sad to see someone I love go through this and it makes me holds me back a lot because I don't know how people around me will accept him...second chances should be given to those under the age of 21 at least so they can be given a chance to live a normal life as a productive member of society.

  5. It's just an ill considered remark. The Sup Ct is inherently political, as it is a core part of government, and Marbury V Madison guaranteed that it would become ever more so Supremely thus. So her remark is meaningless and she just should have not made it.... what she could have said is that Congress is a bunch of lazys and cowards who wont do their jobs so the hard work of making laws clear, oftentimes stops with the Sups sorting things out that could have been resolved by more competent legislation. That would have been a more worthwhile remark and maybe would have had some relevance to what voters do, since voters cant affect who gets appointed to the supremely un-democratic art III courts.

ADVERTISEMENT