In United States v. Valdez-Lopez, --- F.4th ---, No. 20-10004 (9th Cir. 2021), the Court affirmed a new, longer sentence imposed following a successful motion under 28 U.S.C. § 2255 to set aside one of several counts on which he had been convicted.
Originally, the district court sentenced him to 240 months of imprisonment. On resentencing, a new judge imposed 300 months based on the exact same information. In other words, the new sentence was not based on additional crimes or misconduct in prison.
The Ninth affirms: "We conclude that no presumption of vindictiveness applies. Because Valdez-Lopez has not otherwise demonstrated vindictiveness, and because the second sentence was both procedurally and substantively reasonable, we affirm."
"Two features of Valdez-Lopez’s resentencing independently make the presumption of vindictiveness inapplicable here."
"First, the only reason a new sentencing occurred is that the district court itself granted Valdez-Lopez’s motion under section 2255 to set aside his first sentence . . . . We see no reason to presume that a judge would act vindictively in resentencing a defendant after determining that the defendant’s section 2255 motion was meritorious."
"Second, Valdez-Lopez’s new sentence was imposed by a different judge than the judge who imposed his first sentence. The presumption of vindictiveness is 'inapplicable [when] different sentencers assessed the varying sentences.'"
Judge Fletcher concurred: "The question is whether on resentencing a judge (whether the original judge or a replacement judge) may impose a longer sentence when one count of conviction, responsible for a substantial portion of the original sentence has been set aside, and when the record is otherwise unchanged. If I were writing on a clean slate, I would say 'no.'"
"What does not make sense, and should not be the law, is for a resentencing judge to impose a longer sentence when the only change in the record is the fact that petitioner successfully challenged part of the original sentence as unconstitutional."
In United States v. Williams, --- F.4th ---, No. 20-30201 (9th Cir. 2021), the Court vacated a sentence imposed upon revocation of supervised release following the defendant’s commission of another crime, and remanded for resentencing.
This case reaffirms two points of Ninth Circuit sentencing law.
First, when dealing with Washington state predicates, because the state has mandatory guidelines, a conviction does not qualify as a crime “punishable by a term of imprisonment exceeding one year” if the maximum sentence allowed under the state’s sentencing guidelines does not exceeds one year, even if the statutory maximum does.
Second, the panel reiterated what has already been the law -- a district court may order a sentence to run consecutively to an anticipated state sentence, but not consecutively to another federal sentence that has yet to be imposed.
There is also some good language on harmless error in the sentencing context.
"An error in calculating the applicable Guidelines range may be harmless if the district court 'acknowledges that the correct Guidelines range is in dispute and performs [its] sentencing analysis twice.' But at the same time, '[a] district court’s mere statement that it would impose the same aboveGuidelines sentence no matter what the correct calculation cannot, without more, insulate the sentence from remand' if 'the court’s analysis did not flow from an initial determination of the correct Guidelines range.' Here, although the district court stated that it would impose an alternative sentence above the Guidelines range, it gave no explanation of why an above-Guidelines sentence would be appropriate. Accordingly, we cannot rely on its alternative finding to hold the error harmless."
