United States v. James LeRay McIntosh, 2013 U.S. App. LEXIS 422

Background

McIntosh was indicted in 2007 on possession of crack cocaine with intent to distribute and carrying a firearm during a drug-trafficking offense, based on a November 2005 stop, but the indictment wrongly alleged February 2007.
The government dismissed the erroneous indictment without prejudice and obtained a second indictment with the correct date; McIntosh entered a conditional guilty plea to the new indictment.
This court held in United States v. McIntosh, 580 F.3d 1222 (11th Cir. 2009) that the double jeopardy clause barred a second prosecution based on the second indictment; the case was remanded to dismiss the second indictment.
After dismissal of the second indictment, the district court sentenced McIntosh to 120 months under the pre-FSA guidelines; McIntosh challenged whether sentencing could proceed without a pending indictment.
McIntosh argued the district court violated the Grand Jury Clause, Rule 7(a), Rule 12(b)(3)(B), and separation-of-powers by sentencing without an indictment and by not applying the FSA retroactively.
The Eleventh Circuit affirmed the district court’s denial of termination and withdrawal motions, vacated the sentence, and remanded for resentencing under the FSA.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Double Jeopardy upon sentencing	McIntosh argues sentencing on original conviction after dismissal of the original indictment violates double jeopardy.	McIntosh argues the second indictment constituted a new prosecution; sentencing should be barred.	No violation; sentencing proceeded as a continuation of the original proceedings.
District court jurisdiction without pending indictment	Indictment is a jurisdictional prerequisite; absence of indictment deprived court of power to sentence.	District court remained empowered because the conviction existed and stated federal offenses.	District court retained jurisdiction despite indictment dismissal.
Grand Jury Clause and 'answer for' at sentencing	Sentencing without an outstanding indictment violates the Grand Jury Clause's requirement to answer for a felony.	Indictment benefits were satisfied at conviction; sentencing does not implicate the clause.	Clause does not require indictment at sentencing; no violation.
Rule 7(a) and Rule 12(b)(3)(B) challenges	Sentencing without an indictment violates Rule 7(a) and Rule 12(b)(3)(B).	Rule 7(a) tracks the Grand Jury Clause; Rule 12(b)(3)(B) permits challenges to indictment defects acted before conviction.	No Rule 7(a) violation; Rule 12(b)(3)(B) not violated because the defect existed pre-conviction and post-conviction challenges are improper here.
Fair Sentencing Act application	Pre-FSA penalties controlled because offenses occurred before FSA, so sentencing should reflect pre-FSA minimums.	FSA penalties apply to post-Act sentencing of pre-Act offenders as clarified by Dorsey and related cases.	Resentencing required under the FSA revised penalties.

Key Cases Cited

United States v. McIntosh, 580 F.3d 1222 (11th Cir.2009) (double jeopardy and indictment-dismissal issues on remand)
Cotton v. United States, 535 U.S. 625 (Supreme Court 2002) (indictment defects not necessarily jurisdictional; Rule 7(b) waiver effects)
Ex parte Bain, between 1887 U.S. Reports and 1885 (1880s) (indictment as prerequisite to jurisdiction; overruled by Cotton)
Ex parte Wilson, 114 U.S. 417 (1885) (indictment prerequisite to prosecution; early Grand Jury Clause interpretation)
United States v. Peter, 310 F.3d 709 (11th Cir.2002) (distinguishes Meacham; indictment defects and jurisdiction)
United States v. Meacham, 626 F.2d 503 (5th Cir.1980) (indictment failed to describe a federal offense; jurisdictional defect)
Dorsey v. United States, — U.S. —, 132 S. Ct. 2321 (2012) (FSA penalties apply to post-Act sentencing of pre-Act offenders)
United States v. Vaughn, 694 F.3d 1141 (10th Cir.2012) (indictment defect analysis in a jurisdictional context)
Pearce, 395 U.S. 711 (1969) (double jeopardy and sentencing context)
Fern, 155 F.3d 1318 (11th Cir.1998) (functions of an indictment)
Johnson, 713 F.2d 633 (11th Cir.1983) (indictment functions and protections)
United States v. Burge, 407 F.3d 1183 (11th Cir.2005) (statutory interpretation of sentencing statutes)
Rojas, — F.3d — (2011) (FSA penalties apply to post-Act sentencing)