United States v. Angelique Bankston, 711 F. App'x 307

Background

Angelique Bankston was convicted on 23 counts (bank/mail/wire fraud, money laundering, false statement, conspiracy, and four counts of aggravated identity theft) and originally sentenced to 168 months (144 months on most counts + a mandatory consecutive 24 months for identity theft counts, imposed concurrently among themselves).
This court vacated one conviction and found three sentencing errors: the district court used a base offense level (BOL) of 27 instead of 25, it applied Criminal History Category (CHC) VI without adequate explanation (should have explained any upward departure from CHC V), and it failed to resolve disputes over loss amount; the court remanded for resentencing.
On remand before a different judge, the parties agreed the remand was general; the 2015 Guidelines amendment reduced Bankston’s loss-based enhancement (six vs. eight levels), benefitting her.
The district court recalculated a total offense level of 25, a CHC of VI, imposed 137 months on non-identity-theft counts, and stacked the four aggravated identity theft counts as two concurrent pairs run consecutively to produce an additional 48 months, yielding an aggregate 185-month sentence (17 months more than original).
Bankston appealed, arguing (1) the longer sentence reflects vindictiveness in violation of due process/double jeopardy because the court failed to justify increasing punishment after her successful appeal, and (2) the district court lacked jurisdiction to alter the identity-theft sentences because the appellate remand was limited to non-identity-theft counts.

Issues

Issue	Bankston's Argument	Government's Argument	Held
Whether increased sentence after remand presumptively vindictive/violates due process or double jeopardy	The longer aggregate sentence (stacking identity-theft terms) reflects vindictiveness after successful appeal; court gave no justification so presumption applies	No presumption where different judge resentences; absent presumption defendant must show actual vindictiveness, which she failed to do	Affirmed: presumption does not apply because a different judge resentenced; no evidence of actual vindictiveness and record supports court’s decision
Whether district court lacked jurisdiction on remand to alter identity-theft sentencing (i.e., remand was limited)	Prior opinion addressed only non-identity-theft counts, so remand was limited and court exceeded authority by stacking identity-theft terms	Remand is presumptively general unless the mandate unmistakably limits scope; prior opinion used general language (“REMAND the case for resentencing”) and parties treated remand as general	Affirmed: remand was general; district court had authority to reconsider entire sentence

Key Cases Cited

North Carolina v. Pearce, 395 U.S. 711 (presumption of vindictiveness when same authority increases sentence after successful appeal)
United States v. Goodwin, 457 U.S. 368 (limitations on Pearce presumption; need objective information to overcome vindictiveness concerns)
Texas v. McCullough, 475 U.S. 134 (Pearce presumption not automatically applied; context matters)
United States v. Bankston, 820 F.3d 215 (6th Cir. 2016) (prior appellate decision identifying sentencing errors and remanding for resentencing)
United States v. McFalls, 675 F.3d 599 (6th Cir. 2012) (presumption that remands are general; different-sentencer exception to vindictiveness presumption)
Gauntlett v. Kelley, 849 F.2d 213 (6th Cir. 1988) (same-sentencer presumption and its limits)
United States v. Jackson, 181 F.3d 740 (6th Cir. 1999) (insufficiency of sentencing reasons to dispel vindictiveness concerns)
United States v. Layne, 324 F.3d 464 (6th Cir. 2003) (constitutional sentencing challenges reviewed de novo)
United States v. Moore, 76 F.3d 111 (6th Cir. 1996) (example of a limited remand that unmistakably constrains scope)
United States v. Foster, 765 F.3d 610 (6th Cir. 2014) (distinguishable remand issue; concerns about framing remand orders)