Opposition Brief — Rashad Woodside, Petitioner v. United States
Supreme Court briefFeb 8, 2019
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No. 18-6377
________________________________________________________________
________________________________________________________________
IN THE SUPREME COURT OF THE UNITED STATES
_______________
RASHAD WOODSIDE, PETITIONER
v.
UNITED STATES OF AMERICA
_______________
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_______________
BRIEF FOR THE UNITED STATES IN OPPOSITION
_______________
NOEL J. FRANCISCO
Solicitor General
Counsel of Record
BRIAN A. BENCZKOWSKI
Assistant Attorney General
SONJA M. RALSTON
Attorney
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
QUESTION PRESENTED
Whether the district court was required to hold a hearing in
open
court,
with
petitioner
present,
to
further
explain
its
reasoning in calculating petitioner’s drug quantity following a
limited remand from the court of appeals.
(I)
IN THE SUPREME COURT OF THE UNITED STATES
_______________
No. 18-6377
RASHAD WOODSIDE, PETITIONER
v.
UNITED STATES OF AMERICA
_______________
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_______________
BRIEF FOR THE UNITED STATES IN OPPOSITION
_______________
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 29-41) 1 is
reported at 895 F.3d 894.
A prior opinion of the court of appeals
(Pet. App. 9-22) is not published in the Federal Reporter but is
reprinted at 642 Fed. Appx. 490.
JURISDICTION
The judgment of the court of appeals (Pet. App. 42) was
entered on July 18, 2018.
The petition for a writ of certiorari
The appendix to the petition for a writ of certiorari is
not paginated. This brief refers to the pages in the appendix in
consecutive order.
1
2
was filed on October 16, 2018.
The jurisdiction of this Court is
invoked under 28 U.S.C. 1254(1).
STATEMENT
Following a guilty plea in the United States District Court
for the Middle District of Tennessee, petitioner was convicted of
conspiracy to distribute oxycodone, in violation of 21 U.S.C.
841(b)(1)(C) and 846.
Judgment 1.
The district court sentenced
petitioner to 170 months of imprisonment, to be followed by three
years of supervised release.
Judgment 2-3.
The court of appeals
affirmed his conviction but vacated his sentence and remanded for
the district court to explain its drug-quantity calculation.
Pet.
App.
its
9-22.
The
court
issued
a
written
order
detailing
calculation and reinstating the sentence. Id. at 24-27. The court
of appeals affirmed.
1.
From
2009
Id. at 29-41.
to
2013,
petitioner,
a
Florida
resident,
obtained prescription pain medication containing oxycodone and
sold it to others for resale.
Pet. App. 9, 24-26.
Initially,
petitioner sold his medication to Fredrick McGregor in Florida,
who
then
Tennessee.
sold
it
to
Id. at 24.
Kenneth
Stafford
and
Kacee
Breeden
in
But, after about six months of selling to
McGregor, petitioner also began selling directly to Stafford and
Breeden. Ibid. For approximately 18 months, petitioner sold pills
both through McGregor and directly to Stafford and Breeden.
at 25.
Id.
In mid-2011, McGregor stopped selling, but petitioner, who
3
had since recruited other people to sell their prescriptions to
him, continued to sell to Stafford and Breeden until his arrest in
June 2013.
Id. at 25-26, 30.
A grand jury in the Middle District of Tennessee indicted
petitioner on one count of conspiracy to distribute oxycodone, in
violation
of
21
U.S.C.
841(a)(1))
and
846.
Indictment
Petitioner pleaded guilty without a plea agreement.
10.
2-3.
Pet. App. 9-
The Probation Office recommended holding him accountable, for
purposes of calculating his advisory range under the Sentencing
Guidelines, for 343,000 Roxicodone tablets, each containing 27
milligrams of oxycodone.
equivalency
table,
Id. at 10-11.
Sentencing
Guidelines
Based on the drug
§
2D1.1,
comment.
(n.8(D)) (2014), which equates one gram of oxycodone to 6700 grams
of marijuana, the Probation Office recommended holding petitioner
accountable for the equivalent of 62,048.7 kilograms of marijuana.
Pet. App. 11.
That figure, which corresponded to a base offense
level of 36 (30,000 to 90,000 kilograms of marijuana), included
all the pills sold by McGregor.
Ibid.; Presentence Investigation
Report (PSR) ¶ 26.
The
district
court
held
a
sentencing
hearing
Stafford, Breeden, and the case agent testified.
14.
at
which
Pet. App. at 11-
Each provided an estimate of the quantity of pills petitioner
and McGregor sold.
Ibid.
The government advocated for a base
offense level of 36, arguing that the quantities testified to by
4
Stafford amounted to 31,727 kilograms of marijuana equivalent.
Id. at 14-15.
The court, acknowledging that the “numbers do jump
around,” decided to “give [petitioner] the benefit of the doubt”
and “go with Ms. Breeden,” whose testimony yielded a marijuana
equivalence of around 28,000 kilograms.
Id. at 15-16.
That total
yielded a base offense level of 34, which corresponds to a range
of 10,000 to 30,000 kilograms of marijuana.
§ 2D1.1(c)(3) (2014).
Sentencing Guidelines
The district court added four levels for
petitioner’s conduct as a leader of the conspiracy, subtracted
three levels for acceptance of responsibility, and arrived at a
total offense level of 35.
Pet. App. 15-16.
The resulting
Guidelines range was 168 to 210 months, and the court imposed a
sentence of 170 months of imprisonment.
2.
Id. at 16.
Petitioner appealed, arguing, as relevant here, that the
district
court’s
particular.
drug-quantity
Pet. App. 17-18.
findings
were
insufficiently
The court of appeals agreed that
the district court’s methodology was “opaque” because it did not
identify when the conspiracy started (and shifted) and the number
of pills provided by petitioner and McGregor at various times.
Id. at 19.
in
the
Concluding that the court should “make these findings
first
instance,”
the
court
of
appeals
“VACATE[D]
[petitioner]’s sentence, and REMAND[ED] to the district court for
a recalculation of the drug quantity.”
Id. at 21-22.
5
3.
On
remand,
petitioner
filed
a
motion
requesting
a
resentencing hearing at which the parties could present additional
evidence regarding drug quantity and the scope of the conspiracy,
D. Ct. Doc. 1265, at 9-10 (Jan. 13, 2017), which the district court
denied, D. Ct. Doc. 1266 (Jan. 18, 2017).
The court explained
that the court of appeals had remanded “for a recalculation of the
drug quantity” and “did not order or suggest that the Court hold
a hearing for the presentation of additional evidence.”
D. Ct.
Doc. 1266 (Jan. 18, 2017).
The district court subsequently issued an amended judgment
describing its findings.
the
relevant
facts:
Pet. App. 24-27.
Stafford
and
The court recounted
Breeden
began
buying
from
McGregor in late 2008 or early 2009; approximately six months
later, petitioner offered to supply them directly at a lower price;
for the next 18 months, Stafford and Breeden received approximately
2000
petitioner
combined;
approximately 70% of those pills contained oxycodone.
Id. at 24-
25.
pills
per
week
from
McGregor
and
The court found that McGregor’s conduct was part of the same
overall
conspiracy
and
foreseeable
to
petitioner
because
petitioner was selling his own pills to McGregor during that time.
Id. at 25.
But, “to err on the side of caution, the [c]ourt [did]
not attribute to the [petitioner] any pills sold by either Mr.
McGregor or himself” before January 2010.
Ibid.
6
The district court then detailed the drugs attributable to
petitioner in three time periods.
First, the court attributed
109,200 pills from January 2010 to June 2011, when petitioner was
selling pills to Stafford and Breeden as well as McGregor (70% of
2000 for 78 weeks).
Pet. App. 25.
Second, for the next 14 months,
after McGregor stopped supplying Stafford and Breeden, the court
attributed 42,000 pills (70% of 1000 for 60 weeks).
Id. at 26.
Finally, for the last eight months of the conspiracy, the court
attributed 6720 pills (70% of 300 pills for 32 weeks).
court
emphasized
that
those
numbers
included
Ibid.
The
“conservative”
estimates at multiple points. Ibid. (citation omitted). In total,
the court attributed 157,920 Roxicodone pills to petitioner for a
marijuana equivalence of 28,568 kilograms and an offense level of
34.
Id. at 27.
“[I]n all other respects, the prior Judgment
remain[ed] unchanged.”
4.
Ibid. (internal citation omitted).
The court of appeals affirmed.
Pet. App. 29-39.
As relevant here, the court of appeals rejected petitioner’s
contentions that the district court was required to hold a new
sentencing
hearing
and
sentence.
Id. at 33.
orally
announce
the
reasons
for
its
The court found that the prior opinion’s
mandate “unmistakably limited the scope of the remand to the issue
of drug quantity.”
Id. at 34.
And it found “[n]othing” in the
prior opinion’s reasoning that “contemplate[d] the necessity or
even advisability of taking any further evidence, or even holding
7
a
nonevidentiary
hearing”;
needed to “show its work.”
rather,
the
district
Id. at 34-35.
court
merely
The court further
explained that because the remand was limited to an explanation of
the drug quantity calculation and there was no “sentencing,” 18
U.S.C. 3553(c) -- which generally requires the district court “at
the time of sentencing” to “to state in open court the reasons for
its
imposition
of
See Pet. App. 35.
a
particular
sentence”
--
did
not
apply.
In light of its determination that no new
evidence or argument was necessary, the court determined that a
new hearing would be mere “pageantry” and was not required.
Id.
at 35a.
Turning to petitioner’s argument that the district court
erred in attributing to him the drugs sold by McGregor, the court
of appeals found any error harmless because the base offense level
would have been the same “under any conceivable estimate of the
drugs that [petitioner] himself sold.”
Pet. App. 37.
First, the
court observed that the same offense level applies to quantities
between 10,000 and 30,000 kilograms of marijuana equivalence,
Sentencing Guidelines § 2D1.1(c) (2014), so even a much lower total
quantity of drugs would yield the same offense level.
at 37.
Pet. App.
Second, the court observed that because roughly a third of
the total drug quantity came from the latter two time periods in
the district court’s calculation, when McGregor was not involved,
petitioner crossed the 10,000-kilogram threshold if just seven
8
percent of the pills distributed during the first time period -“a mere 98 pills per week” -- were attributed to him.
38.
Id. at 37-
The court noted that petitioner’s own admissions to the case
agent put him over that threshold.
Ibid.
For similar reasons,
the court rejected petitioner’s argument that the district court
erred in crediting Stafford’s testimony instead of Breeden’s in
its
calculations,
observing
that
the
difference
between
the
district court’s estimates at the sentencing hearing (relying on
Breeden) and in its written order (relying on Stafford) -- 28,000
versus 28,568 kilograms -- had no effect on petitioner’s sentence.
Id. at 38-39.
Judge
Stranch
concurred.
Pet.
App.
40-41.
She
wrote
separately to explain that whether to hold a new sentencing hearing
on a limited remand is a matter of judicial discretion.
40.
Id. at
“As cases move across [the] continuum from de novo sentencing
under
a
general
remand
to
technical
sentence
revision,”
she
observed, “there may be circumstances that require the presence of
the defendant, mandate a sentencing hearing, or call for the
pronouncement of [a] sentence in open court, even on a limited
remand.”
Ibid.
She stated that “[i]t is incumbent upon the
appellate court” to outline instructions for remand; that “an
appellate court has the discretion to mandate that a district court
hold a hearing in the defendant’s presence on a limited remand;”
and that a district court also has discretion to add “procedural
9
protections not mandated by the appellate court but within the
scope of its remand.”
Id. at 40-41.
ARGUMENT
Petitioner renews his claim (Pet. 8-14) that the district
court
was
required
to
hold
an
open-court
hearing,
at
which
petitioner would physically appear and the court would orally
pronounce the reasons for the sentence, on remand.
The court of
appeals correctly rejected that claim, and its decision does not
conflict with any decision of this Court or any other court of
appeals.
1.
Further review is not warranted.
It is well settled that, after reviewing a sentence,
courts of appeals have authority to either provide for de novo
resentencing or issue a limited remand.
See Molina-Martinez v.
United States, 136 S. Ct. 1338, 1348 (2016) (recognizing that
“appellate courts retain broad discretion in determining whether
a remand for resentencing is necessary” and endorsing the use of
“mechanisms short of a full remand” following identification of
sentencing errors); Pepper v. United States, 562 U.S. 476, 504505 & n.17, 507 (2011) (recognizing that courts of appeals may
issue “limited remand orders” in “appropriate cases” or “set aside
[an] entire sentence and remand[] for a de novo resentencing”);
United States v. Alston, 722 F.3d 603, 607 (4th Cir.), cert.
denied, 571 U.S. 1104 (2013); United States v. Diaz, 639 F.3d 616,
623 n.3 (3d Cir. 2011); United States v. Moore, 131 F.3d 595, 597-
10
598 (6th Cir. 1997); United States v. Santonelli, 128 F.3d 1233,
1238 (8th Cir. 1997); United States v. Webb, 98 F.3d 585, 587 (10th
Cir. 1996), cert. denied, 519 U.S. 1156 (1997); United States v.
Polland, 56 F.3d 776, 777-779 (7th Cir. 1995); United States v.
Pimentel, 34 F.3d 799, 800 (9th Cir. 1994) (per curiam), cert.
denied, 513 U.S. 1102 (1995); see also Hon. Jon O. Newman, Decretal
Language:
Last Words of an Appellate Opinion, 70 Brook. L. Rev.
727, 732 (2005) (“In altering a sentence, an appellate court should
consider whether it wants to alter one part of the sentence and
leave the remainder in place, or alter one part and grant the
district
judge
novo.”).
It
extraordinary
discretion
is
also
to
well
circumstances,
reshape
settled
a
the
entire
sentence
de
that,
except
perhaps
in
conducting
a
district
court
resentencing must act in conformity with the mandate of the court
of appeals.
See, e.g., Alston, 722 F.3d at 607; Moore, 131 F.3d
at 598; Webb, 98 F.3d at 587; United States v. Tamayo, 80 F.3d
1514, 1519-1520 (11th Cir. 1996); Polland, 56 F.3d at 777-779;
Pimentel, 34 F.3d at 800; United States v. Bell, 5 F.3d 64, 66-67
(4th
Cir.
1993).
The
courts
of
appeals
are
accordingly
in
agreement that they have discretion to determine the scope of a
remand and that a district court is obligated to follow the
directions of the court of appeals.
Courts of appeals are also in agreement about the process due
to a defendant following a general remand.
Every circuit court to
11
address the issue has held that the procedural requirements of an
initial
sentencing,
including
both
Federal
Rule
of
Criminal
Procedure 43(a)(3), which entitles a defendant to be present during
sentencing on a felony offense (subject to certain exceptions),
and 18 U.S.C. 3553(c), which requires the court to state its
“reasons for its imposition of the particular sentence” in “open
court,” apply at a de novo resentencing.
See United States v.
Bryant, 643 F.3d 28, 32 (1st Cir. 2011); United States v. Arrous,
320 F.3d 355 (2d Cir. 2003); United States v. Faulks, 201 F.3d
208, 210-211 (3d Cir. 2000); United States v. Graham, 944 F.2d
902, 1991 WL 182573, at *3 (4th Cir. 1991) (Tbl.) (per curiam);
United States v. Moree, 928 F.2d 654, 656 (5th Cir. 1991); United
States v. Garcia-Robles, 640 F.3d 159, 161 (6th Cir. 2011); United
States v. Bonner, 440 F.3d 414, 417 (7th Cir. 2006); United States
v. McClintic, 606 F.2d 827, 828 (8th Cir. 1979) (per curiam);
United States v. Sanders, 421 F.3d 1044, 1052 (9th Cir. 2005);
United States v. Smith, 930 F.2d 1450, 1456 (10th Cir.), cert.
denied, 502 U.S. 879 (1991); United States v. Harrison, 362 Fed.
Appx. 958, 965 (11th Cir. 2010) (per curiam). 2
Petitioner errs in contending that some courts apply
Rule 43 on remand only “where the sentence is made more onerous.”
Pet. 10 (citing Mayfield v. United States, 504 F.2d 888 (10th Cir.
1974) (per curiam); Caille v. United States, 487 F.2d 614 (5th
Cir. 1973) (per curiam)).
As discussed above, all courts of
appeals agree that Rule 43 applies when full resentencing is
required on remand. The decisions cited by petitioner are not to
the contrary; both merely explain that the newly imposed sentences
2
12
Limited remands are more varied, and the scope of a particular
mandate determines the procedural rights applicable on remand.
For
example,
formal
resentencing
hearings
are
generally
unnecessary where the district court complies with instructions to
make substantive modifications to its sentence but does not use
its discretion to reshape the sentence further.
See, e.g., Rust
v. United States, 725 F.2d 1153, 1154 (8th Cir. 1984) (per curiam)
(vacating one of two sentences illegally imposed for same offense
does not constitute resentencing requiring the presence of the
defendant); United States v. Barnes, 244 F.3d 172, 178 (1st Cir.
2001)
(instructing
the
district
court
to
reduce
the
term
of
supervised release to conform to the statutory maximum while noting
that
the
disturbing
reduction
the
could
remainder
disposition hearing”).
of
“be
accomplished
without
the
sentence
reconvening
or
either
the
The same is true when the terms of the
sentence modification are dictated by the court of appeals.
See,
e.g., United States v. Sabatino, 963 F.2d 366, 1992 WL 122285, at
did not fit within Rule 43’s exemption for reductions of sentences
under Rule 35 because they were more onerous. See Mayfield, 504
F.2d at 889 (“We recognize that an exception to [Rule 43] applies
to reductions of sentences under Rule 35. However, this is not
such a case.
Here, the severity of the original sentence was
increased.”); Caille, 487 at 617 (similar). Various courts have
also stated that the right to be present during sentencing is
rooted in the Constitution. See, e.g., United States v. Salim,
690 F.3d 115, 122 (2d Cir. 2012), cert. denied, 568 U.S. 1115
(2013); Bryant, 643 F.3d at 32; Faulks, 201 F.3d at 213; Graham,
944 F.2d at 902; Moree, 928 F.2d at 656; United States v. Jackson,
923 F.2d 1494, 1496 (11th Cir. 1991).
13
*1 (1st Cir. 1992) (Tbl.) (per curiam) (“Because the terms of our
mandate directed a specific sentence, no purpose would have been
served by the defendant’s presence at correction of sentence.”).
Courts of appeals have consistently rejected the argument
that, following a limited remand, defendants always have a right
to a resentencing hearing at which they are present and where the
reasons for the sentence are stated in open court.
See, e.g.,
United States v. Jackson, 923 F.2d 1494, 1497 (11th Cir. 1991)
(“[W]here the entire sentencing package has not been set aside, a
correction
of
an
illegal
sentence
does
not
constitute
a
resentencing requiring the presence of the defendant, so long as
the modification does not make the sentence more onerous.”);
Rust, 725 F.2d at 1154 (“Under Fed.R.Crim.P. 43, a defendant must
be present only where the sentence is made more onerous, or the
entire
sentence
is
set
aside
and
the
cause
remanded
for
resentencing.”).
To the government’s knowledge, no court has
interpreted
43
Rule
or
Section
3553(c)
as
requiring
a
full
sentencing hearing on a limited remand, the sole purpose of which
is for the district court to elaborate on a factual finding.
To
the contrary, courts of appeals regularly remand cases to obtain
clarification or supplementation of the record from the district
court without requiring resentencing.
See, e.g., United States v.
Lucena-Rivera, 750 F.3d 43, 53, 56 (1st Cir. 2014) (remanding to
district court to either reaffirm previously imposed sentence and
14
file “additional written findings,” or vacate the sentence and
conduct resentencing proceeding); United States v. Redmond, 667
F.3d 863, 876 (7th Cir. 2012) (remanding to allow district court
to clarify whether it “might be inclined to impose a different
sentence if it knew the full extent of its discretion”); United
States v. Levy, 870 F.2d 37, 39 (1st Cir. 1989) (“[W]e must remand
the case for the court either to explain that it did not rely on
the disputed facts or to resentence [defendant].”).
The practices of the courts of appeals in this context reflect
sound principles of judicial administration.
A defendant who had
the opportunity to present evidence and raise all relevant issues
at the original sentencing hearing is not automatically entitled
to present new evidence or arguments based on the fortuity of a
limited remand that concerns only matters within the scope of the
preexisting proceedings.
See United States v. Bernardo Sanchez,
569 F.3d 995, 1000 (9th Cir.), cert. denied, 558 U.S. 1057 (2009);
United States v. Morris, 259 F.3d 894, 898 (7th Cir. 2001); United
States v. Whren, 111 F.3d 956, 960 (D.C. Cir. 1997), cert. denied,
522 U.S. 1119 (1998).
the
district
court
And, at least where the remand permitted
to
reimpose
the
same
sentence,
with
no
substantive changes to its legal or factual premises, and the
district court does so, convening a new hearing so that the parties
can receive the district court’s expanded explanation of the basis
for its unchanged Guidelines calculations orally, rather than in
15
writing, would serve little purpose.
Moreover, as courts have
recognized, invariably requiring a sentencing hearing at which a
defendant may present new arguments would undermine the orderly
and efficient operation of the appellate process.
See, e.g.,
Santonelli, 128 F.3d at 1238 (“Repetitive hearings, followed by
additional appeals, waste judicial resources and place additional
burdens
district
on
parole
and
(permitting
officers
appellate
parties
to
and
personnel
judges.”);
raise
and
Whren,
previously
111
on
hardworking
F.3d
abandoned
at
960
sentencing
claims on remand would be “anomalous and inefficient”).
2.
The proceedings below are consistent with the courts of
appeals’ sensible and consistent approach and do not warrant
further review.
The district court and the court of appeals
correctly determined that the initial panel decision was best
interpreted as contemplating a limited remand for supplementation
of
the
record
rather
than
a
resentencing
petitioner’s presence would be required.
hearing
at
which
The operative language
in the court of appeals’ opinion remanded the case to the district
court for “a recalculation of the drug quantity attributable to
[petitioner],” consistent with the opinion’s requirement that the
district court provide “a better explanation of the district
court’s calculations” or “recalculat[e] * * * the quantity of the
drugs for which [petitioner] is to be held accountable” and its
directive that the district court make “findings of fact” about
16
the scope of the conspiracy “in the first instance.”
19, 21-22.
Pet. App.
The fact that the court of appeals vacated the sentence
rather than retaining jurisdiction did not require the lower court
to
construe
the
remand
more
expansively,
such
that
a
full
resentencing hearing was required, where the district court, in
accordance with the remand order, did not reconsider or change its
original sentence determination.
See, e.g., Bryant, 643 F.3d at
33 (“[M]ost remands of a sentence vacate the existing sentence
regardless of the further proceedings required.”); see also United
States v. Parker, 101 F.3d 527, 528 (7th Cir. 1996) (trial court
properly construed mandate for resentencing as limited despite
appellate court’s vacatur of sentence); United States v. Graham,
989 F.2d 496, 1993 WL 88090, at *1-*2 (4th Cir. 1993) (Tbl.) (per
curiam) (same); United States v. Kikumura, 947 F.2d 72, 76 (3d
Cir. 1991) (same).
To the extent that petitioner would construe
the prior remand order in this case more expansively than the
decisions below, that factbound contention does not provide a basis
for certiorari.
See Sup. Ct. R. 10.
Petitioner errs in contending (Pet. 10) that the court of
appeals’ decision in this case is incompatible with the practice
of the Second Circuit.
The Second Circuit routinely remands “to
the district court to supplement the record on a discrete factual
or legal issue” and does so “while retaining jurisdiction over the
original appeal.”
Corporación Mexicana de Mantenimiento Integral,
17
S. de R.L. de C.V. v. Pemex-Exploración y Producción, 832 F.3d 92,
115 (2016) (Winter, J., concurring), cert. dismissed, 137 S. Ct.
1622 (2017); see also United States v. Jacobson, 15 F.3d 19, 22
(2d Cir. 1994) (recognizing the authority of federal appellate
courts to seek “supplementation of a record without a formal remand
or the need for a new notice of appeal before the appellate panel
acts on the supplemental record”). 3
In such instances, the Second
Circuit has repeatedly affirmed on the basis of supplemental
findings
regarding
hearing was held.
the
sentence
notwithstanding
that
no
new
See, e.g., United States v. Zukerman, 897 F.3d
423, 426 (2d Cir. 2018) (per curiam) (affirming judgment following
a remand for the district court to elaborate on the basis for the
$10 million fine imposed as part of sentence), petition for cert.
pending, No. 18-642 (filed Oct. 25, 2018); United States v. Dean,
591 Fed. Appx. 11 (2d Cir. 2014) (affirming judgment following a
remand
for
the
district
court
to
clarify
statements
made
at
sentencing).
Similar practices have been employed by other circuits.
See United States v. Coles, 403 F.3d 764, 770 (D.C. Cir. 2005)
(per curiam) (retaining jurisdiction over appeal and “remand[ing]
the record to the District Court so that it may determine whether
it would have imposed a different sentence materially more
favorable to the defendant had it been fully aware of the postBooker sentencing regime”); United States v. Paladino, 401 F.3d
471, 483-484 (7th Cir. 2005) (describing post-Booker remand
procedure whereby the court of appeals “retain[ed] jurisdiction of
the appeal” while allowing district court to indicate whether it
would have imposed a different sentence if it had known the
Guidelines were advisory).
3
18
The one Second Circuit case relied on by petitioner, United
States
v.
DeMott,
513
F.3d
55
(2008)
(per
curiam),
is
not
inconsistent with the decision below. In DeMott the district court
misinterpreted the scope of its legal authority at the initial
sentencing by taking the view that the defendant’s two statutoryminimum drug sentences had to run consecutively.
Id. at 57.
Because it was “impossible to determine from the record whether
the district judge would have imposed the same sentence if he had
not misapprehended the law,” the Second Circuit “VACATE[D] the
sentence and REMAND[ED] for resentencing.”
201 Fed. Appx. 27, 29-30 (2006).
United States v. Day,
But on remand the district court
simply issued a written opinion explaining that even with the
discretion to impose the sentences concurrently, it would not do
so.
DeMott, 513 F.3d at 58.
On the second appeal, the parties
agreed that because the district court was imposing a new sentence,
it had violated defendant’s right to be present at resentencing
and Section 3553(c)’s requirement that it state in “open court”
its reason for the sentence, particularly why it was imposing
consecutive prison terms.
involved
a
remand
Ibid.
for
In contrast to DeMott, which
full
resentencing
based
on
“misapprehen[sion] [of] the law,” Day, 201 Fed. Appx. at 29, here
the
court
of
appeals
simply
issued
a
limited
remand
with
instructions to the district court to supplement the record by
showing its math.
19
3.
In any event, this case would be an unsuitable vehicle
for addressing the question presented.
Even assuming that the
mandate did entitle petitioner to de novo resentencing, he is
mistaken in suggesting that the arguments he intended to raise
would have affected the outcome.
Indeed, the issues petitioner
wants to press -- the drug quantity and the scope of the conspiracy
-- were before the parties and the district court at the original
sentencing hearing.
The Probation Office made an initial calculation as to drug
quantity,
and
petitioner
both
raised
objections
to
that
calculation in his sentencing papers and was able to cross-examine
the witnesses and present arguments on drug quantity at the initial
sentencing hearing. Sent. Tr. 127-132. McGregor’s pill quantities
were also included in the Probation Office’s calculation, PSR ¶ 21,
and both Breeden and Stafford testified about McGregor’s conduct,
including on cross-examination.
100, 118-119.
Sent. Tr. at 47-55, 72-76, 92-
Petitioner did not make any objections to the
Probation Office’s determination about the scope of the conspiracy
or urge the district court to disregard the testimony on that
topic, see Pet. App. 19 (“Defendant did not make this argument at
sentencing.”), and it is unclear that he would have any right to
raise that forfeited argument in a second sentencing hearing.
Furthermore, as the court of appeals explained, even if the
district court had not attributed McGregor’s pills to petitioner,
20
the base offense level would not change because petitioner admitted
that he was independently sending hundreds of pills a week during
that phase of the conspiracy, which, in conjunction with the
periods when he was Stafford and Breeden’s sole supplier, was
enough to support a base offense level of 34.
Pet. App. 36-38.
Thus, petitioner has provided no sound reason to conclude that,
had a full rehearing occurred, the district court would have found
less than 10,000 kilograms of marijuana equivalent -- as opposed
to the more than 28,000 kilograms it found -- as would be required
for his Guidelines range to change.
Any error was accordingly
harmless and does not warrant further review.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
NOEL J. FRANCISCO
Solicitor General
BRIAN A. BENCZKOWSKI
Assistant Attorney General
SONJA M. RALSTON
Attorney
FEBRUARY 2019
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.