United States v. Martinez

606 F.3d 1303, 2010 WL 1994672
CourtCourt of Appeals for the Eleventh Circuit
DecidedMay 19, 2010
DocketNo. 08-13846
StatusPublished
Cited by62 cases

This text of 606 F.3d 1303 (United States v. Martinez) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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United States v. Martinez, 606 F.3d 1303, 2010 WL 1994672 (11th Cir. 2010).

Opinion

MARCUS, Circuit Judge:

Appellant Hector Martinez has petitioned this Court for rehearing and rehearing en banc, arguing that United [1304]*1304States v. Canty, 570 F.3d 1251 (11th Cir. 2009), precludes our grant of relief allowing the government to introduce new evidence on remand to support a claimed leadership sentencing enhancement. Plainly, this Court has the power to authorize the remedial relief ordered in the case. Because Title 28 U.S.C. § 2106 grants the courts of appeal broad discretion to fashion mandates to allow appropriate proceedings on remand in a criminal case, and because our case precedent has long held that an appellate panel may in an appropriate case permit the government to introduce new evidence on a remand for resentencing, we adhere to the panel opinion and deny the motion for rehearing and rehearing en banc.

To begin with, the controlling statute, 28 U.S.C. § 2106, unambiguously grants the circuit courts broad discretion to fashion an appropriate mandate on remand after the vacatur of a sentence. In fact, the text of the statute grants the broadest authority to the courts of appeals in fashioning the remedy. Thus, under the statute, this Court may

affirm, modify, vacate, set aside or reverse any judgment, decree, or order of a court lawfully brought before it for review, and may remand the cause and direct the entry of such appropriate judgment, decree, or order, or require such further proceedings to be had as may be just under the circumstances.

28 U.S.C. § 2106. Indeed, we cannot imagine how the appellate court’s discretion could be framed more broadly.

To suggest, however, that a circuit panel may, in an appropriate case, vacate and remand for resentencing de novo, of course, does not mean that a circuit panel is required in every vacatur to remand the case for de novo review by the district court. Quite to the contrary, the reviewing court remains free to modify or limit the issues for review on remand as it may deem appropriate; indeed, it may require such further proceedings “as may be just under the circumstances.” Id. Accordingly, many remands are limited in nature, and the mandate may sharply circumscribe the district court’s review on the second round. But this much is clear — a reviewing panel may remand for limited purposes, for broader purposes, or to permit further evidence to be presented on the second round even when a party has been given an opportunity but fails to do so on the first round.

Consonant with this broad discretion, we have often held that a general vacatur of a sentence by default allows for resentencing de novo. See United States v. Taylor, 11 F.3d 149, 152 (11th Cir.1994) (“[T]here is a distinction between modifications of sentences and proceedings that impose a new sentence after vacation of the original sentence.”). Indeed, we have had occasion to observe that “when a criminal sentence is vacated, it becomes void in its entirety; the sentence — including any enhancements — has ‘been wholly nullified and the slate wiped clean.’ ” United States v. Stinson, 97 F.3d 466, 469 (11th Cir.1996) (per curiam) (quoting United States v. Cochran, 883 F.2d 1012, 1017 (11th Cir. 1989)), cert. denied, 519 U.S. 1137, 117 S.Ct. 1007, 136 L.Ed.2d 885 (1997). Thus, we have adopted a “holistic approach” to resentencing, Stinson, 97 F.3d at 469, treating a criminal sentence as a “package of sanctions” that may be fully revisited upon resentencing. United States v. Yost, 185 F.3d 1178, 1181 (11th Cir.1999). Other circuits have recognized that this Court has allowed by default a de novo approach to resentencing. See, e.g., United States v. Quintieri, 306 F.3d 1217, 1228 n. 6 (2d Cir .2002).

Indeed, there is binding precedent in this Circuit (predating Canty) where we have squarely permitted the government [1305]*1305to present evidence at resentencing even though it amounted to giving the party “a second bite at the apple.” Thus, for example, most recently in United States v. Tampas, 493 F.3d 1291, 1305 (11th Cir. 2007), a panel of this Court considered whether to remand the case for resentencing on the issue of criminal restitution because the government had failed to prove that the defendant’s embezzlement scheme caused the victim to sustain a very large loss. The defendant squarely objected that resentencing would unfairly allow the government “two bites at the apple” to “prove that the YMCA is due restitution.” Id. The panel overruled the objection and held that the government would be allowed to introduce new evidence on remand at the resentencing. Id. The issue of whether the government could develop the facts at resentencing was clearly raised, argued, and decided by the panel. The mandatory restitution in Tampas was authorized as a “sentencing provision” found in the criminal statute 18 U.S.C. § 3663A(a), id., and required factfinding as part of the sentencing packet, see United States v. Patterson, 595 F.3d 1324, 1327 (11th Cir.2010).

Tampas is controlling case law predating Canty on whether a panel may on remand for resentencing allow the government to introduce new evidence. And, of course, “[u]nder the prior precedent rule, we are bound to follow a prior binding precedent unless and until it is overruled by this court en banc or by the Supreme Court.” United States v. Vega-Castillo, 540 F.3d 1235, 1236 (11th Cir.2008) (per curiam).

Tampas was not the first time, however, that a panel of this Court has exercised its statutory discretion in that way. Still earlier, in United States v. Ramsdale, 61 F.3d 825, 831-32 (11th Cir.1995), another panel expressly authorized the government to introduce new evidence to prove a sentencing fact on remand. Because the government had failed to “produce any evidence regarding the type of methamphetamine involved in the conspiracy,” the appellate panel vacated the sentence and remanded the case “for resentencing, at which time the government must meet its burden of proof.” Id. at 832; If there is any doubt that the panel in Ramsdale

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606 F.3d 1303, 2010 WL 1994672, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-martinez-ca11-2010.