Panel Upholds Resentencing of Defendant to a Longer Sentence on Remaining Conviction After Another Conviction Was Vacated on Appeal

United States v. Fowler, No. 12-15818, from MDFla

 Chief Circuit Judge Carnes, joined by Circuit Judge Hull and Senior Circuit Judge Cox.

Summary:  The defendant was convicted under a federal witness-tampering statute and under 28 U.S.C. § 924(c)(1) for using a firearm during a federal crime of violence after he murdered a police officer.  He was first sentenced to life imprisonment on the witness-tampering count, and to 10 years (the mandatory minimum) on the firearm count.  After his witness-tampering conviction was overturned on appeal (by the U.S. Supreme Court in Fowler v. Davis, 131 S.Ct. 2045 (2011)), the district court decided to resentence him on the firearm count to life imprisonment.  The defendant again appealed, claiming that the court had no authority to resentence him on the remaining count and/or that the re-sentencing violated his due process rights.

The panel first explained the so-called “sentencing package doctrine,” the judicial recognition that sentencing on multiple counts is an integrated process. (Note that in footnote 4, the panel stated that this doctrine was likely more a matter of authority than jurisdiction, although it did not ultimately reach this issue). Thus, when a conviction on one or more counts is vacated, the court should be permitted to reconstruct the entire sentence to make sure the remaining sentence is consistent with the Guidelines and the court’s view of the proper sentence.

On direct appeal, when some convictions are set aside, the typical practice is to vacate all sentences  and remand for resentencing. This is in contrast to the practice when a conviction was vacated on collateral review prior to (but not after) the adoption of the Guidelines.  In the post-Guidelines world, when a conviction is vacated on collateral review, a court may resentence the defendant on the remaining counts of conviction if those counts are interdependent with the one that was set aside.

When a sentence is set aside on direct appeal (and, after the adoption of the Guidelines, on collateral review), the court has presumed that the sentences on each count of a multi-count indictment are part of a package that may be revisited to ensure that the overall sentence on the surviving counts is consistent.  No case specific inquiry is required.  However, the panel further concluded that even without that presumption and with a case-specific inquiry, that result applied in this case. 

The panel further held that the re-sentencing did not violate the due process clause.  The panel distinguished the previous case of United States v. Monaco, 702 F.2d 860, as a pre-guidelines case.  North Carolina v. Pearce, 395 U.S. 711 (1969), established a two-part test for determining the constitutional validity of a more severe sentence imposed upon resentencing: (1) whether the new sentence was in fact “more severe”; and (2) whether there were non-vindicative reasons for doing so that affirmatively appeared on the record.  Monaco established the way to calculate whether a new sentence was more severe: an “aggregate remainder approach” that disregards the part of the original sentence attributable to the vacated count and compares the old and new total sentences on the surviving counts.

The panel refused to extend Monaco’s “aggregate remainder approach” since it was adopted pre-Guidelines.  The other circuits to address this issue have adopted an “aggregate package approach” comparing the total original sentence to the total sentence after re-sentencing (including the First, Third, Fourth, Seventh, Ninth, and Tenth Circuits).  The panel adopted this approach for the Eleventh Circuit in the present Guidelines era. The panel further held that even if Monaco was applied, there were affirmative non-vindicative reasons in the record for the re-sentencing .

Accordingly, the panel affirmed the defendant’s sentence.

Note: The Eleventh Circuit is typically very strict about its precedent rules, namely that only the en banc court can overturn a prior panel precedent.  The panel doesn’t explicitly overrule Monaco in this case, but it does cabin its reach significantly by distinguishing it as a pre-Guidelines case.  The opinion spends a great deal of time explaining this decision, probably because Judge Carnes is wary of disregarding this prior precedent.