United States v. German Ventura, 864 F.3d 301

Background

Ventura and co-defendant Fuertes ran multiple brothels in Maryland and Virginia; investigation uncovered threats, violent tactics, and evidence of brothel operations.
Ventura was charged in a superseding indictment with seven counts including conspiracy (18 U.S.C. § 371), multiple interstate transportation/prostitution counts (18 U.S.C. § 2421, § 2422), sex trafficking by force/fraud/coercion (18 U.S.C. § 1591), and possession of a firearm in furtherance of a crime of violence (18 U.S.C. § 924(c)).
A jury convicted Ventura on all seven counts; the district court initially sentenced him to an aggregate 420 months.
On appeal the Fourth Circuit (First Decision) vacated the § 924(c) conviction (Count Seven) because § 1591 is not categorically a crime of violence, and remanded for resentencing.
On remand the district court entered judgment of acquittal on Count Seven but recalculated and resentenced Ventura to an aggregate 420 months (within Guidelines 360 months–life), citing trial evidence of violence and post‑sentencing prison misconduct.
Ventura appealed the resentencing; the Fourth Circuit affirmed, rejecting mandate‑rule, vindictiveness, and improper fact‑finding/post‑sentence‑conduct challenges.

Issues

Issue	Ventura's Argument	Government's Argument	Held
Did the district court violate the mandate by recalculating remaining counts after vacatur of Count Seven?	The remand required only striking Count Seven; other sentences should remain unchanged (resulting in 60‑month aggregate reduction).	The mandate permitted resentencing; the sentencing‑package doctrine allows revisiting the entire package and recalculating other counts.	Affirmed: remand did not bar the court from re‑fashioning the sentencing package; recalculation was permissible.
Was resentencing vindictive because punishment on Count Six increased by 60 months?	The increase on Count Six shows vindictiveness; no objective justification given.	Aggregate sentence did not increase (remained 420 months); Fourth Circuit uses aggregate‑package approach, so no presumption of vindictiveness.	Affirmed: no presumption of vindictiveness because aggregate sentence unchanged; defendant failed to show actual vindictiveness.
Could the district court rely on facts related to the vacated § 924(c) count (e.g., firearm possession, violent acts) in resentencing?	Court invaded the jury’s province; factual findings tied to vacated count could not be used to enhance sentence.	Sentencing courts may consider factual matters not found by jury and may consider conduct proved by a preponderance of the evidence.	Affirmed: district court may consider such facts at sentencing if proved by preponderance; no procedural error.
Could the court consider Ventura’s post‑conviction conduct while in BOP custody at resentencing?	Post‑sentencing conduct cannot be used against defendant absent Guidelines or statutory direction; consideration was improper.	18 U.S.C. § 3661 permits broad consideration of background and conduct; Pepper allows consideration of post‑conviction rehabilitation or misconduct at resentencing.	Affirmed: court properly considered BOP disciplinary record and acted within discretion; if any error, harmless.

Key Cases Cited

United States v. Fuertes, 805 F.3d 485 (4th Cir. 2015) (earlier panel opinion vacating § 924(c) conviction and remanding for resentencing)
United States v. Gray, 852 F.2d 136 (4th Cir. 1988) (adopting aggregate package approach to resentencing)
United States v. Bell, 5 F.3d 64 (4th Cir. 1993) (mandate rule principles on remand)
United States v. Townsend, 178 F.3d 558 (D.C. Cir. 1999) (sentencing package doctrine discussion)
North Carolina v. Pearce, 395 U.S. 711 (U.S. 1969) (due process and vindictiveness in resentencing)
Alabama v. Smith, 490 U.S. 794 (U.S. 1989) (requirements for rebutting vindictiveness presumption)
Rita v. United States, 551 U.S. 338 (U.S. 2007) (sentencing courts may consider facts not determined by a jury)
Pepper v. United States, 562 U.S. 476 (U.S. 2011) (resentencing may account for post‑conviction rehabilitation and conduct)
United States v. Lawing, 703 F.3d 229 (4th Cir. 2012) (court may consider conduct of which defendant was acquitted when proved by preponderance)