United States v. Resendez-Mendez

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 15, 2001
• Docket: 00-40585
• Status: Published

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

_______________________________

No. 00-40585 _______________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSÉ ALFREDO RESENDEZ-MENDEZ,

Defendant-Appellant.

_________________________________________________

Appeal from the United States District Court for the Southern District of Texas _________________________________________________

May 15, 2001

Before DAVIS, WIENER, and STEWART, Circuit Judges.

WIENER, Circuit Judge:

Defendant-Appellant José Alfredo Resendez-Mendez (“Resendez”)

asks us to vacate his 71-month sentence for illegal reentry that

the district court assessed following our vacatur and remand for

resentencing. Resendez also asks us to reinstate his original 57-

month sentence for the same crime or, alternatively, to remand

again for resentencing. We conclude that the district court’s

proffered reasons for increasing Resendez’s sentence on remand are

not sufficient to rebut the presumption of vindictiveness that

attaches when a harsher sentence is meted out on resentencing following reversal or vacatur and remand. We therefore vacate

Resendez’s subsequently imposed 71-month sentence and reinstate his

original sentence of 57 months’ imprisonment.

I.

FACTS AND PROCEEDINGS

Resendez pleaded guilty to reentering the United States

illegally after deportation, in violation of 8 U.S.C.A. § 1326. In

exchange for his plea, Plaintiff-Appellee the United States of

America (“the Government”) agreed to recommend a sentence at the

low end of the range determined in accordance with the United

States Sentencing Guidelines. Recommending a three-level reduction

for acceptance of responsibility, Resendez’s presentence report

determined the appropriate guideline range to be 57 to 71 months’

imprisonment. The district court sentenced him to 57 months, the

shortest prison term in his guidelines range, to be followed by a

three-year term of supervised release.

We vacated that sentence on appeal because the district court

had failed to afford Resendez the opportunity to speak in

mitigation of his sentence. On remand, the same judge expressed

the opinion that Resendez was inadequately remorseful and

resentenced him to 71 months in prison, the longest period in his

guideline range, to be followed by a three-year term of supervised

release.

2 Before pronouncing the new sentence, the district court

afforded Resendez allocution, asking whether he had anything to say

to the court. Resendez responded:

Yes, Your Honor. I know —— first of all, I would like to apologize again. I know I did wrong. I am here because I didn’t know I was going to get this much time. But if I knew that, I wouldn’t be talking to you right now, to this Court. I know I am not —— I have been illegal here, but also I have done some good things, also. I helped save three lives. Unfortunately couldn’t save the fourth one.1 My wife had a work accident and it has been almost a year that I was without a job, and she has trouble struggling to survive with my little daughter. I ask if it will be possible to have a less[ ] harsh sentence.

The court asked Resendez whether he was sure he had nothing else to

say, and after some further discussion stated to Resendez’s

counsel:

Because having reviewed and heard from your client now in this particular hearing, I am not convinced that he is very sincere and genuine. I am not convinced of that. Having given him the opportunity to speak to me, I just don’t think he is very —— he is very honest. I really don’t.

The defendant responded that he did not understand why the court

was “saying that I am not being honest with you. I am real sorry,

like I say.” The court replied:

Well, let’s not say you are not [sic] dishonest. You don’t appear to be very repentant. You don’t appear to —— you didn’t express any regrets having engaged in this conduct. And that you know is why people have an opportunity to address the Court. You know, they can say

1 Resendez referred to a car accident in which he rescued three drowning victims.

3 something or they don’t have to say anything. But it does touch upon a final decision to be made pursuant to the sentencing processes. I am not impressed with what you told me. I am not convinced and persuaded that you are —— you do —— you are repentant.

Resendez replied: “I don’t know how to say it, but I know I did

wrong. I am sorry for it.”

After imposing sentence, the court stated:

The Court does notice that I am modifying the sentence I heretofore imposed, but I have already stated of record that I simply had additional time to review the matter. And it is [ac]knowledged that I am doing this at a time when I am not facing sentencing ten or fifteen people at the same time; and, in addition to that, I am not convinced and persuaded from what you have told me that you are truly sorry for the commission of this offense.2

Resendez timely perfected this appeal.

II.

ANALYSIS

A. Standard of Review

Although the Government contends that Resendez did not

contemporaneously object to the lengthier sentence, our review of

the record of the resentencing proves that, to the contrary, he

effectively did so.3 Therefore, we review de novo whether the

court’s proffered reasons for increasing the sentence on remand are

2 Contrary to the implication of this remark, the record reflects that Resendez was sentenced individually in the first instance, not in a group of ten or fifteen defendants. 3 After the court pronounced the new sentence, Resendez’s counsel stated: “Your Honor, [ ] we ask the Court to reconsider the issue of the 71 months, as you imposed the original sentence of 57 months.”

4 sufficient to overcome the legal presumption that such an increased

sentence constitutes vindictiveness.4

B. Analysis

In North Carolina v. Pearce,5 the Supreme Court established

the rule that a presumption of vindictiveness attaches any time

that a defendant receives a harsher sentence on resentencing by the

same judge who imposed the previous sentence.6 We noted in United

States v. Campbell that the Pearce rule is “a prophylactic one,

addressed more to protect future litigants who appeal than to the

injustice done in the actual case. Tolerance of a court’s

vindictiveness might ‘chill’ a defendant’s right to seek an appeal

of her sentence.”7 Due process requires that a defendant not face

increased punishment solely as retribution for successfully

appealing a conviction, and also must “be freed of apprehension of

such a retaliatory motivation on the part of the sentencing

judge.”8 When a judge imposes a harsher sentence following a

4 United States v. Campbell, 106 F.3d 64, 66 (5th Cir. 1997). 5 395 U.S. 711 (1969), overruled in part on other grounds, Alabama v. Smith, 490 U.S. 794 (1989). 6 Although Pearce addressed a harsher sentence imposed on retrial, we also have applied it to resentence on remand. See Campbell, 106 F.3d at 67 (citing United States v. Vontsteen, 950 F.2d 1086, 1089 n.2 (5th Cir. 1992)). 7 Campbell, 106 F.3d at 67. 8 Pearce, 395 U.S. at 725.

5 successful appeal, “some reason for the increase must plainly

demonstrate that no vindictiveness was involved.”9

In this case, there is no evidence that the district court was

actually motivated by subjective vindictiveness in imposing the

harsher sentence on Resendez’s second appearance. It is equally

plain, however, that the court neither expressed nor indicated any

objective reason sufficient to rebut the Pearce presumption of

vindictiveness; indeed, no objective reason at all. The great

deference we owe to district courts’ sentencing is erased by the

Pearce presumption when a harsher sentence is imposed on

resentencing, and the sentencing court must rebut the presumption

of vindictiveness with some objective reason for its reassessment.

In Pearce, the Supreme Court held that a trial judge may

impose a new, lengthier sentence

in the light of events subsequent to the first trial that may have thrown new light upon the defendant’s “life, health, habits, conduct, and mental and moral propensities.” Such information may come to the judge’s attention from evidence adduced at the second trial itself, from a new presentence investigation, from the defendant’s prison record, or possibly from other sources.10

9 United States v. Schoenhoff, 919 F.2d 936, 938 (5th Cir. 1990). 10 Pearce, 395 U.S. at 723 (citation omitted); see also id. at 726 (holding that reasons for imposing more severe sentence on defendant “must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding”).

6 Our own precedent concerning such information has tended to focus

on the defendant’s criminal activity. United States v. Scott, for

example, centered on new information about the amount of drugs

involved in a conspiracy and the defendant’s personal involvement

in dealing crack cocaine.11 Similarly, in United States v.

Schmeltzer, we upheld a lengthier prison term on resentencing in a

case that involved both new convictions on additional charges and

an applicable four-level offense increase that had been overlooked

by the first probation officer.12 “The changed circumstances —— the

convictions for four different charges and the increased offense

level —— are sufficient objective events and information justifying

an increase so as to rebut any presumption of vindictiveness,” we

wrote.13

No similar newly discovered facts, changed circumstances, or

post-sentencing occurrences emerged regarding Resendez or his

criminal behavior following his original sentencing. We take

particular note of the fact that the district court did not rescind

its previous grant to Resendez of a three-level reduction for his

acceptance of responsibility, despite the court’s rejection of

11 48 F.3d 1389, 1398 (5th Cir. 1995). 12 United States v. Schmeltzer, 20 F.3d 610, 613 (5th Cir. 1994). 13 Id.; see also Texas v. McCullough, 475 U.S. 134, 136 (1986) (involving new evidence on retrial that (1) the defendant —— not his accomplices —— had slashed a murder victim’s throat, and (2) the defendant had been released from prison only four months before the killing).

7 Resendez’s expressions of regret and remorse in his allocution as

insincere. It is as though the court was requiring the defendant’s

allocution to justify not increasing the original sentence, a

purpose opposite from allocution’s opportunity to seek a lesser

sentence.

We do not wish to discourage criminal defendants from

expressing remorse at allocution, or to impinge on a court’s

discretion to assess a defendant’s sincerity. We hold only that a

district court must identify some objective reason or reasons,

either occurring or discovered after imposition of the original

sentence, to overcome the presumption of vindictiveness and justify

a lengthier sentence when it imposes one on remand. Under the

circumstances of this case, we hold that the sentencing court’s

subjective discrediting of the defendant’s somewhat ambiguous

statements at allocution is objectively inadequate to rebut the

presumption of vindictiveness. Those statements, whether or not

disingenuous, did not constitute either objective information newly

acquired by the court following the original sentencing or

sentence-enhancing occurrences post-dating the original sentencing.

III.

CONCLUSION

We re-emphasize that the Supreme Court’s legal doctrine of

presumed vindictiveness, which we apply today, is an objective one.

As such, nothing in this opinion should be read to imply actual or

subjective vindictiveness on the part of the sentencing judge,

8 either toward Resendez for his successful appeal or toward this

court for our previous reversal and remand. Simply put, a

presumption of vindictiveness arises automatically when, on remand

following vacatur of sentence, the same judge who imposed the

original sentence assesses a stiffer one. For a harsher sentence

to stand under such circumstances, the re-sentencing court must

articulate specific reasons, grounded in particularized facts that

arise either from newly discovered evidence or from events that

occur after the original sentencing.

Our remand for failure to grant allocution has no correlation

with the presumption of vindictiveness that arose subsequently when

the sentence imposed on remand exceeded the original, vacated

sentence. Yet Resendez’s lack of sincere remorse in his allocution

is all that the sentencing court expressed in justification of the

increased sentence. As we have explained, reversal of the

presumption of vindictiveness and justification of an increased

sentence are wholly dependent on the sentencing court’s specific

verbalization of either new information or subsequent occurrences

that objectively support imposition of an enhanced sentence on

remand.

We do not take issue with the district court’s necessarily

subjective credibility call on Resendez’s sincerity or

truthfulness, either in proffering extenuating circumstances in

allocution or in expressing remorse or regret. In this case,

however, the sentencer’s subjective evaluation of the sincerity of

9 defendant’s allocution is neither relevant to the question of

vindictiveness nor probative in dispelling it. Such a subjective

determination is not a substitute for objective reasons sufficient

to reverse the legal presumption of vindictiveness and justify the

harsher sentence.

For the foregoing reasons, therefore, we vacate Resendez’s

sentence of 71 months in prison and reinstate his original 57-month

sentence, to be followed by a three-year term of supervised

SENTENCE IMPOSED ON REMAND VACATED; ORIGINAL SENTENCE REINSTATED.