United States v. Lewis Alston
2013 U.S. App. LEXIS 14443
| 4th Cir. | 2013Background
- Alston pleaded guilty to possession of five grams or more of crack cocaine under 21 U.S.C. § 841 and to maintaining a dwelling for cocaine use under § 856.
- The government sought an enhanced penalty under § 841(b)(1)(B) and § 851 based on prior felony drug offenses, triggering a 10-year minimum.
- Original sentencing yielded a 150-month term after rejecting an upward departure; the government did not appeal.
- This Court overruled Harp and vacated Alston’s sentence on appeal, remanding for de novo resentencing to follow Simmons.
- On remand, the probation officer recalculated to a 23 offense level, IV criminal history, and a 70–87 month range; the government again sought an upward departure.
- The district court imposed 120 months along with concurrent supervised releases after stating it would reach the same result regardless of guideline advice and later considered retroactivity of the Fair Sentencing Act (FSA).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Mandate rule on remand governing upward departure | Alston: district court cannot reconsider departure already denied on remand | Alston's reading of mandate restricts de novo consideration | District court allowed de novo consideration and reconfiguration under mandate |
| Retroactive application of the Fair Sentencing Act | Alston: FSA retroactively applies; would alter guidelines and §3553(a) result | Government: apply FSA retroactively only if warranted | Retroactive application required but error harmless; sentence unchanged in effect |
| Substantive reasonableness of the sentence under 3553(a) | Alston argues sentence was punitive to achieve rehabilitation | Government argues proper balancing of §3553(a) factors | Sentence affirmed; not based on rehabilitation impermissibly and satisfies §3553(a) factors |
Key Cases Cited
- Susi, United States v., 674 F.3d 278 (4th Cir. 2012) (mandate rule and de novo resentencing on remand)
- Pepper v. United States, 131 S. Ct. 1229 (2011) (vacate entire sentence on general mandate to permit resentence)
- Harp, United States v., 406 F.3d 242 (4th Cir. 2005) (premature application of prior policy; cited as overruled by Simmons)
- Simmons v. United States, 649 F.3d 237 (4th Cir. 2011) (en banc; overruled Harp; directs sentencing per Simmons on remand)
- Gall v. United States, 552 U.S. 38 (2007) (requires individualized consideration of §3553(a) factors)
- Revels v. United States, 455 F.3d 448 (4th Cir. 2006) (empty-formality principle in remand proceedings)
- Dorsey v. United States, 132 S. Ct. 2321 (2012) (FSA retroactivity”)
- Tapia v. United States, 131 S. Ct. 2382 (2011) (cannot lengthen a sentence to ensure rehabilitation; but may consider §3553(a)(2)(D))