United States v. Elia Orlando
2016 U.S. App. LEXIS 9552
7th Cir.2016Background
- Orlando was indicted for producing and possessing child pornography and pleaded guilty to four counts in April 2014 under a plea agreement in which the government promised to recommend 35 years imprisonment followed by lifetime supervision.
- At the August 2014 sentencing the district court imposed 40 years imprisonment and lifetime supervised release with mandatory and discretionary conditions, but did not discuss § 3583(d) findings or state the standard conditions on the record.
- Orlando appealed; the parties jointly moved to vacate and remand in light of United States v. Thompson, and this Court vacated and remanded for resentencing.
- At the May 2015 resentencing the district court limited the proceeding to supervised-release issues, declined to revisit the prison term, and delayed imposing any term or conditions of supervised release until Orlando’s release from custody.
- Orlando appealed again arguing (1) the district court failed to conduct a full resentencing, (2) it committed procedural error by not considering § 3553 factors and post-sentencing rehabilitation, and (3) the government breached the plea agreement by not recommending 35 years at the May 2015 proceeding.
- The Seventh Circuit found the district court misinterpreted the remand, vacated the sentence, ordered a full resentencing, rejected Orlando’s breach claim, and declined to reassign the case to a different judge.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether remand required full resentencing | Orlando: remand should trigger full resentencing including prison term | Government: agreed full resentencing is appropriate | Court: remand in light of Thompson required vacating entire sentence; full resentencing ordered |
| Whether district court procedurally erred by not considering § 3553 factors and rehabilitation | Orlando: court failed to consider post‑sentencing rehabilitation and § 3553 factors | District court: believed remand limited to supervised‑release conditions; parties did not object | Court: misinterpretation likely caused omission; full resentencing will permit consideration of § 3553 and Pepper rehabilitation evidence |
| Whether district court lawfully delayed imposing supervised‑release term and conditions | Orlando: delay left sentence defective because no term was imposed | District court/government: requested postponement of discretionary conditions until release | Court: district court erred by not imposing at least the mandatory term (minimum 5 years) and required § 3583(d) conditions; delay of discretionary conditions may be permissible but has drawbacks |
| Whether government breached plea agreement by not recommending 35 years at May 2015 proceeding | Orlando: government failed contractual promise to recommend 35 years | Government: had recommended 35 years at original sentencing; at May 2015 it lacked opportunity because court refused to revisit prison term | Court: no breach — obligation to recommend arose only if court provided opportunity at resentencing; defendant did not preserve objection so plain‑error review fails |
Key Cases Cited
- United States v. Thompson, 777 F.3d 368 (7th Cir. 2015) (vacated sentences and remanded for full resentencing because reconsideration of supervised‑release conditions may affect prison terms)
- United States v. Kappes, 782 F.3d 828 (7th Cir. 2015) (district courts must make adequate findings before imposing standard supervised‑release conditions)
- United States v. Siegel, 753 F.3d 705 (7th Cir. 2014) (recommended practice: impose conditions at original sentencing and hold brief hearing before release to reconsider modifications)
- Pepper v. United States, 562 U.S. 476 (2011) (district courts may consider post‑sentencing rehabilitation at resentencing)
- Santobello v. New York, 404 U.S. 257 (1971) (remedies for governmental breach of plea agreements include specific performance and resentencing)
- United States v. Neal, 810 F.3d 512 (7th Cir. 2016) (§ 3583(e)(2) permits modification of supervised‑release conditions after imposition)
- Orloff v. Willoughby, 345 U.S. 83 (1953) (court not bound by government’s concession of error)
- United States v. Malone, 815 F.3d 367 (7th Cir. 2016) (interpret plea agreements using contract principles; ambiguities construed against government)
- United States v. Diaz‑Jimenez, 622 F.3d 692 (7th Cir. 2010) (breach must be material to warrant relief)
- United States v. Cahill, 920 F.2d 421 (7th Cir. 1990) (government agreements must be scrupulously performed)