Can a post-Booker resentencing lead to a sentence increase?
One of the many uncertainties in the post-Booker world is exactly what can and should happen during a post-Booker resentencing following a circuit remand. Should prior (proper) guideline calculations be taken as given so that the chief question becomes whether the sentencing judge will now vary, or should the whole sentencing process start from scratch? And, perhaps most important for defendants, can a district judge based on 3553(a) factors impose a sentence greater than initially imposed under the guidelines?
Judge Posner speaking for the Seventh Circuit has a lot to say on these issues today in US v. Goldberg, No. 03-3955 (7th Cir. May 5, 2005) (available here). The defendant in Goldberg challenges the district court’s application of a vulnerable victim enhancement, which provides Judge Posner an opportunity to discuss the different features of a Paladino remand for reconsideration as opposed to a remand for full resentencing. Here is a portion of what seems like a lot of important post-Booker dicta:
Goldberg is entitled to a limited Paladino remand because the judge based the enhancement on his own findings. It is worth pointing out, however, that Goldberg may be better off with that relief than with his preferred relief, which is an order resentencing him. Any resentencing would be conducted under the new, post-Booker regime, in which the guidelines are merely advisory, and so he’d be exposed to the risk of a higher sentence…. The judge might then decide that 52 months was too light a punishment for Goldberg’s crime. Although the sentence was at the midpoint of the guideline range, the range is now merely advisory. Judge Shadur made clear that he was disturbed by the magnitude of Goldberg’s fraud and moved by the letters from which we quoted. He might want to give Goldberg a longer sentence, and if the departure were a reasonable one we would have to affirm.
We were surprised to learn that Goldberg’s lawyer and — we understand from him, and from the argument of another criminal defense lawyer in an appeal argued before us the same day — other members of the defense bar as well believe that a sentence meted out in the pre-Booker era of mandatory guidelines is the ceiling in the event of a resentencing unless there are changed factual circumstances, such as additional criminal conduct by the defendant. If there are no such changed circumstances, Goldberg’s lawyer told us, the inference would arise that any heavier sentence imposed on remand was vindictively motivated and therefore improper. That is a misunderstanding, and it is a misunderstanding dangerous to criminal defendants. When there is no relevant legal or factual change between sentence and resentence, the motive for an increase in punishment is indeed suspect. But Booker brought about a fundamental change in the sentencing regime. The guidelines, mandatory when Goldberg 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.
The risk that the judge might increase the sentence is not significant in a Paladino remand. Such a remand asks the judge whether he would have given the defendant a shorter sentence had he realized the guidelines are merely advisory. If so, this would show that his treating the guidelines as mandatory had been a plain error, and so we would vacate for resentencing. Since our basis for doing this would be the judge’s having told us that he wanted to shorten the defendant’s sentence, it would be an unusual case, to say the least, in which the judge would impose a heavier rather than a lighter sentence; presumably it would be a case in which damaging new information had come to light since the Paladino remand.
Tedder in contrast was a case in which we ordered the defendant resentenced because the judge had misapplied the guidelines, in which event he can impose a higher sentence because the guidelines are merely advisory. And this demonstrates that a defendant who appeals a pre-Booker sentence on the basis that the guidelines were misapplied (as in Goldberg’s challenge to the vulnerable-victim enhancement) is playing with fire, because if he wins and is resentenced the judge will have more sentencing latitude, up as well as down, than he did when the guidelines were deemed mandatory.
Though I have no significant squabble with Judge Posner’s vindictiveness analysis in Goldberg, I am troubled that he does not discuss or even seem to consider that due process/ex post facto principles may provide a ceiling on increasing a post-Booker sentence based on pre-Booker conduct. That issue, which is significant not only for resentencing cases but also for initial sentencings post-Booker, has been discussed in the posts linked below:
UPDATE: Tom Lincoln at PRACDL Blog in this post notes that counsel in Goldberg at oral argument did not raise the due process/ex post facto, which surely partially explains why Judge Posner did not consider it. But I tend to expect Judge Posner to anticipate arguments that not raised by counsel, especially because this issue is potentially quite important for so many post-Booker cases.