412 F. App'x 370
2d Cir.2011Background
- Mends was convicted on Jan 7, 2008 for Count One (passport secured by a false statement) and Count Two (aggravated identity theft); sentenced to 1 month on Count One and a 2-year mandatory consecutive term on Count Two.
- This court vacated the Count Two conviction and remanded after Flores-Figueroa v. United States, 129 S. Ct. 1886 (2009).
- On remand, the government moved to dismiss Count Two; the district court resentenced Count One to time served and imposed a two-year supervised release.
- Rule 11(b) requires a factual basis for a guilty plea and understanding of each charged offense; the court must ensure the conduct constitutes an offense.
- Mends challenged the plea’s basis under the “use” prong of 18 U.S.C. § 1542 and whether he personally made the false statements; the court declined to adopt his novel interpretation.
- The court held the sentence on Count One and the remand for de novo resentencing were necessary due to improper resentencing and the Law of the Case considerations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of plea to Count One given the use/false statement issue | Mends argues no personal false statement basis for use prong | Government contends use prong broad; allows no requirement of personal statement | No plain error; plea valid under statutory text |
| Whether there was a sufficient factual basis for using the passport | personal false statements not shown; wrong basis for use | Use prong does not require personal statement; passport used willfully | No plain error; record supports willful use of passport |
| Procedural propriety of resentencing Count One to time served | Time-served was an upward variance/departure without explanation | District court erred procedurally; within-range guidance misapplied | Vacate and remand for proper resentencing de novo |
| Whether Double Jeopardy bars any sentence above one month on Count One | Remand could lead to higher sentence; affects finality | No finality interest prevents resentencing where conviction appealed | Double Jeopardy does not bar resentencing on remand |
| Scope of mandate and need for de novo resentencing following partial reversal | Mandate did not permit resentencing Count One | Default rule requires resentencing when part of conviction reversed | Remand for de novo resentencing on Count One required |
Key Cases Cited
- United States v. Garcia, 587 F.3d 509 (2d Cir. 2009) (Rule 11 and factual-basis standard for guilty pleas)
- United States v. Maher, 108 F.3d 1513 (2d Cir. 1997) (Governs interpretation of plea-basis standards)
- Browder v. United States, 312 U.S. 335 ((U.S. 1941)) (Use of passport complete when passport is used)
- Jean-Baptiste, 166 F.3d 102 (2d Cir. 1999) (Court declined adding non-textual elements to § 1542 offense)
- Hasan, 586 F.3d 161 (2d Cir. 2009) (Addresses scope of § 1542 interpretation)
- United States v. D’Oliveira, 402 F.3d 130 (2d Cir. 2005) (Procedural error in resentencing under Guidelines)
- Quintieri, 306 F.3d 1217 (2d Cir. 2002) (Remand for de novo resentencing following partial reversal)
- United States v. Rigas, 583 F.3d 108 (2d Cir. 2009) (Default rule for resentencing when part of conviction reversed)
- United States v. Bryce, 287 F.3d 249 (2d Cir. 2002) (Double Jeopardy and finality notions in sentencing)
- Torrellas, 455 F.3d 96 (2d Cir. 2006) (Plain-error review considerations)