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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. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  2. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  3. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

  4. Seventh Circuit Court Judge Diane Wood has stated in “The Rule of Law in Times of Stress” (2003), “that neither laws nor the procedures used to create or implement them should be secret; and . . . the laws must not be arbitrary.” According to the American Bar Association, Wood’s quote drives home this point: The rule of law also requires that people can expect predictable results from the legal system; this is what Judge Wood implies when she says that “the laws must not be arbitrary.” Predictable results mean that people who act in the same way can expect the law to treat them in the same way. If similar actions do not produce similar legal outcomes, people cannot use the law to guide their actions, and a “rule of law” does not exist.

  5. Linda, I sure hope you are not seeking a law license, for such eighteenth century sentiments could result in your denial in some jurisdictions minting attorneys for our tolerant and inclusive profession.

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