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APPEALS COURT EXPLAINS THAT 420-60=420
We write a lot about cases in which defendants win the right to resentencing due to some error in calculation or procedure the first time around. In case readers ever wonder how that turns out for defendants, we present the case of German De Jesus Ventura, a/k/a Chino, a/k/a Chalo, a/k/a Pancho, a/k/a Chaco, a/k/a Oscar, and other names not mentioned in the decision.
Mr. Ventura (we’ll call him “AKA” for short) ran several brothels on the Eastern Shore of Maryland. He employed the usual brothel operations techniques, importing young ladies from D.C. and Virginia to work, splitting revenues with his workers 50/50, threatening and beating up underperforming prostitutes, and – of course – carrying business cards promoting his whorehouses.
It was this last practice that contributed to his undoing, when one of the cards came to police attention during a routine traffic stop. When the dust settled, AKA got 420 months for a variety of prostitution-related crimes, a sentence made up of 360 months on most of the Mann Act counts, and a mandatory 60 months extra for carrying a gun during a crime of violence (a violation of 18 USC 924(c)).
On his first trip to the 4th Circuit Court of Appeals, AKA got the 924(c) count thrown out, because, the court ruled, the underlying crimes could be committed without the use of violence (by fraud, for example). His case was sent back to the district court for resentencing without the 924(c) count’s mandatory 60-month add-on. But to AKA’s consternation, the district court gave him the same 420-month sentence. Not believing that 420 months minus 60 months could still equal 420 months, AKA appealed.
Earlier this week, the 4th Circuit took AKA to school, explaining that 420 minus 60 can still equal 420. Interesting for its treatment of sentencing vindictiveness and the sentencing packaging doctrine, the decision is especially noteworthy for illustrating the obverse of the Dean v. United States coin.
AKA’s case addresses a question we get a lot from defendants: if I win my appeal or post-conviction motion, and get sent back for resentencing, can the judge give me more time than I started with? There’s an answer, and it’s a complicated mix of the constitutional prohibition on vindictiveness and the sentencing package doctrine.
Fifth Amendment due process requires that vindictiveness against a defendant for having successfully attacked a conviction or sentence can play no part in the sentence he or she gets after a new trial or sentencing. If a trial court increases a sentence on remand, the reasons for the increase must be put in the record. If the trial court does not explain its reasons, a presumption arises that a greater sentence has been imposed for a vindictive purpose — “a presumption that must be rebutted by objective information . . . justifying the increased sentence.” But the presumption only arises if there’s a reasonable likelihood the increase in sentence is the product of actual vindictiveness.
The sentencing package doctrine holds that if a case is remanded for resentencing, the sentencing court may refashion the entire sentencing package, not just the count or counts left after one or more are thrown out. So if a drug case where there’s a conspiracy counts, four possession-with-intent-to-distribute counts, and a 924(c) count gets remanded after two possession counts are thrown out, the trial court may still look at the whole package of conduct and decide its original 180-month sentence was a reasonable sentence for what the defendant did, and reimpose it.
AKA argued that the 4th Circuit’s decision throwing out his 924(c) conviction had to be followed by the trial court, and that his sentence necessarily had to be 60 months less to avoid violating the “mandate rule” (which holds, logically enough, that when a higher court issues a mandate, a lower court generally is “bound to carry the mandate of the upper court into execution,” as the Circuit put it). But the 4th held AKA’s trial court had not defied its mandate, but rather just employed the “sentencing package doctrine.”
The Circuit said that when a defendant is found guilty on a multicount indictment, a district court may craft a disposition in which the sentences on the various counts form part of an overall plan:
If some counts are vacated, the judge should be free to review the efficacy of what remains in light of the original plan… Our remand did not — as Ventura suggests — automatically entitle him to a 60-month reduction in his aggregate sentence merely because his conviction on Count Seven was vacated. Pursuant to the sentencing package doctrine, the mandate left ample room for the district court to recalculate the sentences related to Ventura’s other six convictions that were not subject to vacatur.
AKA argued, however, that the district court was vindictive in resentencing him to the same 420 months, even without the gun, because to do so, the trial judge increased the sentence on the Mann Act counts from 360 months to 420 months.
The 4th Circuit made short work of this argument, rejecting it because AKA “did not receive an increase in his aggregate sentence. The appellate panel said that to determine whether the new sentence is vindictive, “we first ask whether the new sentence is actually harsher than that imposed prior to successful appeal.” Only then will the court consider whether the defendant has shown a reasonable likelihood of actual vindictiveness.
Here, the district court initially sentenced AKA to an aggregate 420 months. On remand, the court resentenced him yet again to an aggregate 420 months. “Put simply,” the Circuit said, “the court did not increase his aggregate term of imprisonment. — it imposed the same term.” In other words, 420 is not greater than 420.
This case shows the dark side of Dean v. United States, last April’s Supreme Court decision that held judges could consider the effect of a mandatory consecutive sentence in setting the sentence on the underlying count. In Dean, the court had to sentence the defendant to a consecutive 360 months for successive 924(c) counts. The Supremes said the trial court could sentence him on the underlying drug count to one day, even though the Guidelines were 78-87 months, in order to fashion a sentence package that the judge saw as reasonable.
The 4th Circuit did not mention Dean in turning down AKA, but it could have. Given that a district judge can do that, nothing stops him from raising the time on the underlying count once the 924(c) count goes away. What’s sauce for the goose is sauce for the gander.
United States v. Ventura, Case No. 15-4808 (4th Cir., July 18, 2017)
– Thomas L. Root