United States v. Kent, 710 F. App'x 8

Thomas J. Kent pleaded guilty to one count of conspiracy to commit wire fraud and was initially sentenced to 78 months’ imprisonment after the district court applied a § 3B1.1(a) role enhancement.
This Court vacated the initial sentence and remanded because the district court had not made the required findings to support the § 3B1.1(a) enhancement (United States v. Kent, 821 F.3d 362).
On resentencing the district court declined to apply the § 3B1.1(a) enhancement but again imposed a 78-month sentence, making that term an above-Guidelines sentence on remand.
Kent appealed the resentencing, arguing (1) the identical 78-month sentence was vindictive (violating due process) and (2) the above-Guidelines sentence was substantively unreasonable.
The district court explained at resentencing that the Guidelines were advisory, articulated why the case was outside the Guidelines "heartland," and applied the § 3553(a) factors in support of the 78-month term.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Vindictiveness/presumption of vindictiveness on remand	Kent: the resentencing sentence should be treated as a "more severe" sentence (like increasing remaining counts) and thus presumptively vindictive	Government: no presumption; resentencing involved a new Guidelines analysis and the same aggregate sentence does not imply vindictiveness	No presumption of vindictiveness; analogous to cases where related counts were vacated and resentencing maintained the same aggregate sentence, so presumption does not apply
Actual vindictiveness	Kent: the district court’s identical 78-month sentence evidences retaliatory motive	Government: district court reasonably concluded the original aggregate sentence remained appropriate after correcting the procedural error	No evidence of actual vindictiveness; circuit previously signaled the court might reimpose the same sentence and the district court’s reasoning was understandable
Substantive reasonableness of above-Guidelines sentence	Kent: 78 months (15 months above Guidelines) is unreasonable	Government: within district court discretion; court properly applied § 3553(a) and found the case outside the Guidelines heartland	Sentence is substantively reasonable under deferential abuse-of-discretion review; district court gave detailed § 3553(a) reasons and expressly found the case outside the Guidelines heartland

North Carolina v. Pearce, 395 U.S. 711 (1969) (due process forbids resentencing motivated by vindictiveness)
United States v. Weingarten, 713 F.3d 704 (2d Cir. 2013) (no presumption where related counts vacated and aggregate sentence maintained)
United States v. Goodwin, 457 U.S. 368 (1982) (prosecutorial vindictiveness standards referenced)
United States v. Kent, 821 F.3d 362 (2d Cir. 2016) (prior opinion vacating sentence for failure to make required enhancement findings)
United States v. Cavera, 550 F.3d 180 (2d Cir. 2008) (en banc) (deferential abuse-of-discretion standard for substantive reasonableness)
United States v. Rigas, 583 F.3d 108 (2d Cir. 2009) (rare case standard for setting aside a sentence)
United States v. Pope, 554 F.3d 240 (2d Cir. 2009) (no presumption of unreasonableness for outside-Guidelines sentences)
United States v. Chaklader, 232 F.3d 343 (2d Cir. 2000) (reapportioning sentence after correcting a Guidelines error upheld)
United States v. Hornick, 963 F.2d 546 (2d Cir. 1992) (upholding resentencing that preserved original aggregate sentence)