United States v. Faulkenberry
759 F. Supp. 2d 915
S.D. Ohio2010Background
- Faulkenberry was resentenced after the Sixth Circuit vacated and remanded the prior judgment due to interdependent sentencing.
- The Sixth Circuit deemed the sentences interdependent, vacated the entire sentencing package, and remanded for de novo resentencing.
- The remand in this case is general, allowing de novo consideration of the entire sentencing package under law-of-the-case principles.
- The court must follow the mandate and the law of the case, including the interdependency finding, on remand.
- The PSR originally calculated life imprisonment; post-Booker, the court may engage in judicial factfinding and apply appropriate enhancements.
- The court imposed a total sentence of 120 months and restitution of $2,384,147,105.09 jointly and severally.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the remand was general or limited | Faulkenberry argues remand limited, constraining resentencing. | Faulkenberry contends limits on scope apply to the resentencing. | Remand is general; court may resentence de novo. |
| Double jeopardy impact of resentence after overturning money laundering counts | Interdependent sentences allow resentencing of remaining counts. | Finality should bar increases in the absence of a valid basis. | No double jeopardy bar; sentencing package doctrine permits resentencing. |
| Scope of de novo resentencing when interdependent sentences exist | Courts may reconsider the entire sentencing package on remand. | Limitations should constrain reconsideration to surviving issues. | Court may reconsider the entire package to effectuate original sentencing intent. |
| Applicability of post-Booker guidelines and loss enhancements | Loss amount and related enhancements should be applied based on the record. | Enhancements should be scrutinized and limited where appropriate after Booker. | Court may apply reasonable loss estimation and enhancements consistent with advisory Guidelines. |
| Appropriate 3553(a) factors and resulting sentence | Severe penalties warranted given magnitude and role in the fraud. | Variance from Guidelines appropriate given circumstances. | A 120-month sentence with substantial, but not within-Guidelines, variances is reasonable. |
Key Cases Cited
- United States v. Moored, 38 F.3d 1419 (6th Cir.1994) (mandate and law-of-the-case binding after remand)
- United States v. Campbell, 168 F.3d 263 (6th Cir.1999) (general vs limited remand; de novo resentencing on general remand)
- United States v. Santonelli, 128 F.3d 1233 (8th Cir.1998) (limited remand directing specific reconsideration)
- United States v. Cornelius, 968 F.2d 703 (8th Cir.1992) (remand scope unspecified; general remand permitted de novo review)
- United States v. Shue, 825 F.2d 1111 (7th Cir.1987) (sentencing packaging doctrine permits reevaluation of package)
- United States v. Smith, 116 F.3d 857 (10th Cir.1997) (no restriction on reconsideration of entire sentencing package on general remand)
- United States v. Rodriguez, 112 F.3d 26 (1st Cir.1997) (no finality in total sentencing package after appeal of one count)
- United States v. DiFrancesco, 449 U.S. 117 (Supreme Court 1980) (Double Jeopardy and finality in original sentence)
- United States v. Booker, 543 U.S. 220 (Supreme Court 2005) (Guidelines advisory; consider § 3553(a) factors)
- Kimbrough v. United States, 552 U.S. 85 (Supreme Court 2007) (Guidelines are a starting point, not binding constraints)