United States v. Quentin Singletary, 458 F.3d 72, 2d Cir. (2006)
United States v. Quentin Singletary, 458 F.3d 72, 2d Cir. (2006)
3d 72
BACKGROUND
4
The facts material to this appeal are undisputed. Singletary pleaded guilty to the
single count of an information charging him with violating 21 U.S.C. 841(a)
(1) by possessing cocaine base ("crack") with the intent to distribute it. Under
the plea agreement Singletary signed, he and the Government agreed that his
base "offense level" under the Guidelines was 12, his criminal history category
was V, and his sentencing range would be 27 to 33 months' imprisonment. The
agreement contained the disclaimer that the District Court might not make the
same calculations and that Singletary could not withdraw his guilty plea if the
District Court imposed a sentence more harsh than that anticipated by the
parties.
At the original sentencing hearing, the District Court found that the projected
range of 27 to 33 months was correct. It also found, however, that an upward
departure was appropriate under U.S.S.G. 5K2.4.1 The basis for the upward
departure was that Singletary and three other persons coerced Marshall Jones, a
seventeen-year-old boy whom they did not know, into driving them around in
his parents' car. Jones testified that while he was alone in the family car,
Singletary approached him, demanded that Jones give Singletary's friend "a
ride," and appeared to have a weapon.2 The District Court therefore departed
upwardly, adding three levels to the "offense level," with a resulting
On remand, the District Court advised the parties that it was again considering
upwardly departing from the 27-to-33-month range and that it did not consider
its previous sentence of 42 months to be a "cap or ceiling" limiting the new
sentence under the advisory Guidelines. Singletary objected, arguing that no
sentence above 42 months could be proper. Following briefing and a new
sentencing hearing, the District Court sentenced Singletary principally to 54
months' imprisonment. The District Court stated at its October 28, 2005 hearing
that
when the Court considered this previously, it was required pretty much to
consider the sentencing in terms of the then mandatory guidelines. Those
guidelines are now advisory. And based on the language in Booker... and other
cases from the Second Circuit since then, the Court is charged now with
considering the guidelines, but also determining ultimately what a reasonable
sentence should be under Section 3553(a) of Title 18.
DISCUSSION
10
11
Singletary argues that because no new facts before the District Court at
resentencing justified an increased sentence, the District Court's imposition of
twelve additional months of imprisonment creates a presumption of
vindictiveness. He relies principally on North Carolina v. Pearce, 395 U.S.
711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), in which the Supreme Court held
that
12
13
Id. at 726, 89 S.Ct. 2072; see Goodwin, 457 U.S. at 374, 102 S.Ct. 2485 (stating
that the Pearce Court "applied a presumption of vindictiveness, which may be
overcome only by objective information in the record justifying the increased
sentence"); see also Bryce, 287 F.3d at 256-57 ("`[A] sentencing authority may
justify an increased sentence by affirmatively identifying relevant conduct or
events that occurred subsequent to the original sentencing proceedings.'"
(quoting Wasman v. United States, 468 U.S. 559, 572, 104 S.Ct. 3217, 82
L.Ed.2d 424 (1984))). The District Court on remand imposed twelve more
months of imprisonment than it did initially, even though there had been no
apparent change in defendant's circumstances or in the court's understanding of
the record of his crime. Defendant argues that the Pearce presumption of
vindictiveness thereby arose. We disagree.
14
The Supreme Court has clarified that the Pearce presumption "do[es] not apply
in every case where a convicted defendant receives a higher sentence on retrial"
or at resentencing. Texas v. McCullough, 475 U.S. 134, 138, 106 S.Ct. 976, 89
L.Ed.2d 104 (1986). The presumption exists to prevent not "enlarged sentences
after a new trial" but rather "vindictiveness of a sentencing judge." Id.
Recognizing that "the Pearce presumption may operate in the absence of any
proof of an improper motive and thus . . . block a legitimate response to
criminal conduct," the Court has limited application of the presumption "to
circumstances where its objectives are thought most efficaciously served."
Alabama v. Smith, 490 U.S. 794, 799, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989)
(internal quotation marks and citation omitted). Accordingly, before a
defendant may invoke the Pearce presumption, there must be a "reasonable
likelihood that the increase in sentence is the product of actual vindictiveness
on the part of the sentencing authority." Id. (emphasis added and citation and
quotation marks omitted). "Where there is no such reasonable likelihood, the
burden remains on the defendant to prove actual vindictiveness." Id. at 799-800,
109 S.Ct. 2201 (citing Wasman, 468 U.S. at 569, 104 S.Ct. 3217).
15
16
We read Pearce and its progeny to require a preliminary analytical step before a
reviewing court can determine whether the presumption of vindictiveness
compels a reviewing court to vacate an increased sentence. This first step,
which defendant has elided in his argument, is to determine whether the
presumption even applies. In that regard we look to see if it is reasonably likely
that the District Court imposed the increased sentence because it was actually
being vindictive. Id. at 799, 109 S.Ct. 2201. If we find a "reasonable
likelihood" that actual vindictiveness motivated the increased sentence, we then
apply the Pearce presumption, and "the sentencing authority . . . must rebut the
presumption that an increased sentence . . . resulted from vindictiveness."
Wasman, 468 U.S. at 569, 104 S.Ct. 3217. Where the record shows that
vindictiveness was not reasonably likely, then the presumption does not apply,5
and "the defendant must affirmatively prove actual vindictiveness." Id. A
significant intervening change in law, or a changed understanding of the law,
can itself justify an increased sentence on remand, thereby precluding
application of the Pearce presumption because it is not reasonably likely that
vindictiveness motivated the increased sentence. The Supreme Court's decision
in Booker caused such a change by permitting district courts to consider
sentences that otherwise would have been impermissible under the legal regime
in force at the time of the original sentencing. Two of our sister circuits have
held that because Booker fundamentally altered the law pursuant to which
defendants are sentenced, that alteration of the law, standing alone, rendered a
challenge based on vindictiveness highly implausible. See United States v.
Williams, 444 F.3d 250, 254 (4th Cir.2006) (holding that "there is no
vindictiveness in a post-Booker sentence that exceeds the original pre-Booker
sentence solely because Booker changed the law"); see also United States v.
Goldberg, 406 F.3d 891, 894 (7th Cir. 2005) ("Booker brought about a
fundamental change in the sentencing regime. The guidelines, mandatory when
[defendant] was sentenced, are now advisory. Were he to be resentenced, it
would be under a different standard, one that would entitle the judge to raise or
lower the sentence, provided the new sentence was justifiable under the
standard of reasonableness. No inference of vindictiveness would arise from the
exercise of the judge's new authority." (internal citations omitted)).
Where an original sentence involves no upward departure and a more severe
non-Guidelines sentence is imposed on a remand prompted by Booker, it is
clear that the change in law initiated by Booker must be considered a
sufficiently significant legal "event" to render inapplicable the Pearce
presumption of vindictiveness. In such a case, the district courts have been
freed by Booker to consider sentences that otherwise would have been
impermissible under the legal regime in force at the time of the original
sentencing. See, e.g., United States v. Reinhart, 442 F.3d 857, 860 (5th
Cir.2006) ("The district court's justification for the longer sentence is its
freedom post-Booker to step beyond the guidelines range and impose any
reasonable sentence. That justification is plainly a valid reason associated with
the need for flexibility and discretion in the sentencing process." (internal
quotation marks omitted)); Goldberg, 406 F.3d at 894.
17
Here, however, the District Court foundat the time of its initial
pronouncement of sentencethat an upward departure pursuant U.S.S.G.
5K2.4 was appropriate. It therefore was not required under the Guidelines to
sentence Singletary within the otherwise-applicable mandatory Guidelines
range of 27 to 33 months. Indeed, the relevant upward departure provision,
U.S.S.G. 5K2.4, does not specify by how much a district court may increase a
defendant's sentence, and it therefore left the District Court in this case free to
sentence Singletary to any term of imprisonment up to the twenty-year statutory
maximum. Singletary thus argues that the District Court had as much discretion
(pursuant to Section 5K2.4) at the initial sentencing as it had (pursuant to
Booker) when it resentenced Singletary to a lengthier prison term. Accordingly,
the argument continues, the imposition of a higher sentence on remand was
presumptively vindictive. Cf. Colten v. Kentucky, 407 U.S. 104, 117, 92 S.Ct.
1953, 32 L.Ed.2d 584 (1972) (holding that no vindictiveness could be
presumed when second sentence was imposed by a different judge than had
imposed the original sentence, meaning the original judge was not being "asked
to do over what [he] thought [he] had already done correctly").
18
We recognize that the instant case differs from Bad Marriage II because
U.S.S.G. 4A1.3 provides guidance to sentencing judges with regard to the
permissible degree of upward departure, whereas the provision at issue here,
U.S.S.G. 5K2.4, does not specify an appropriate degree of departure.
Nevertheless, we conclude that the principle of Bad Marriage IIthat no
presumption of vindictiveness attaches where a sentencing judge explains why
a defendant deserves a higher sentence under post-Booker sentencing law
applies equally well to this case.
20
We conclude that the presumption does not apply in this case because there is
no reasonable likelihood that Singletary's increased sentence was the product of
the sentencing judge's actual vindictiveness. Singletary consented to the
government's motion to remand his case under Fagans to be resentenced in light
of Booker. We granted the motion, and the instant appeal arises from the
ensuing resentencing. We have no reason to suspect that Judge Larimer's
imposition of a greater sentence after a routine Fagans remand resulted from a
vindictive motive. Indeed, our instructions on remand were simply that the
court resentence Singletary in conformity with the recently-issued Booker
decision, an instruction given in several hundred cases as we have implemented
the Supreme Court's ruling in Booker. The remand in Singletary's case was not
a merits reversal of the District Court's sentencing determination. In addition,
nothing in the record remotely suggests vindictiveness on the part of the
District Court; Judge Larimer carefully explained the effect of Booker on his
reasoning and why, upon review of the facts, the post-Booker sentencing law
called for a higher sentence than the District Court had originally imposed. We
therefore have no difficulty in concluding that the "evil" that the Pearce
presumption is intended to avertenhanced sentences born of a sentencing
judge's vindictiveness following a successful appealis simply not present in
this case.
21
22
felt cabined or restricted in some sense [at the original sentencing] because the
Court felt it had to deal with the guidelines. And I think under the new
framework, that is not necessarily the case. The guidelines are advisory, but
Section 3553 also calls for the Court to consider the nature and characteristics
of the offense, and the history and characteristics of the defendant.
23
III. Judicial Factfinding After Booker Under the Advisory Sentencing Guidelines
Does Not Violate the Sixth Amendment Right to Trial by Jury
26
Singletary argues, "in order to preserve [the issue] for future review," that the
District Court violated his right to trial by jury under the Sixth Amendment
when it based its sentence on facts there were not "found by a jury beyond a
reasonable doubt" or admitted by Singletary. We reject Singletary's argument
because it directly contradicts the holding of Booker that judicial factfinding is
permissibleindeed, requiredunder an advisory Guidelines regime. See
Booker, 543 U.S. at 245-46, 258-60, 125 S.Ct. 738; Crosby, 397 F.3d at 110-12.
The Guidelines remain a robust component of federal sentencing law, and
judicial factfinding in the calculation of the appropriate advisory Guidelines
range is a necessary part of the sentencing process, even when, as in this case,
Notes:
1
The District Court noted that the offense of conviction was Singletary's "fourth
or fifth felony."
The District Court admonished Singletary that he had not taken "just a joy
ride," but rather had "terroriz[ed] this young man that you didn't even know,
you had no beef with."
Cf., e.g., Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714
(1973) (rejecting Pearce presumption after defendant was reconvicted by a new
jury and given a lengthier sentence than was originally imposed);
Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978)
(declining to apply presumption "when a prosecutor threatens to seek
conviction on a greater offense if the defendant does not plead guilty and in fact
does so when the defendant proceeds to trial").
We note as well that the defendant's attorney stressed at oral argument that he
had no intention of suggesting that Judge Larimer was actually vindictive.
Instead, he argued that, standing alone, the record itself (i.e., the increase in
sentence with no change in the facts before the District Court) created a
presumption of vindictiveness, and that no claim, much less proof, of
vindictiveness is necessary.