United States v. Thomas Whitmore
682 F. App'x 626
| 9th Cir. | 2017Background
- In 1991 Whitmore was convicted on multiple drug counts including a continuing criminal enterprise (CCE) conviction and sentenced to life without parole under the then-mandatory quantity-based sentencing regime; he was 26 and had two prior nonviolent misdemeanors.
- On direct appeal (1994) the Ninth Circuit affirmed most convictions but left count 37 (attempt) problematic and contemplated vacatur of count 1 (conspiracy) depending on later developments; the district court later vacated count 37 and count 1 at different times, but amendments to the judgment were delayed until 2014–2015.
- Whitmore sought resentencing on remand; the district court did not hold a resentencing hearing when it amended judgments, and Whitmore was without counsel when the amended judgment became final in 2014.
- Whitmore argued the district court erred by failing to resentence him with counsel and allocution, and raised additional claims: (1) jury did not properly find drug-quantity thresholds (Apprendi-related and sufficiency/aggregation arguments), and (2) Double Jeopardy/Housley claim that his attempt convictions (predicates) cannot be cumulatively punished with the CCE.
- The government argued waiver of resentencing and of the Apprendi/Housley claims because Whitmore (or a stand-in for his counsel) previously agreed resentencing was unnecessary and because he failed to raise those issues on direct appeal.
- The Ninth Circuit vacated Whitmore’s sentence and remanded for resentencing, directing the district court to provide counsel and allocution and to decide in the first instance whether to consider the other claims; the court also instructed amendment of the judgment to vacate count 37.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether district court erred by not holding resentencing and affording counsel and allocution after remand | Whitmore: judgment became final in 2014 and he was entitled to resentencing, counsel, and allocution; failure prejudiced him | Government: Whitmore waived resentencing when stand-in counsel agreed it was unnecessary in 1994 | Vacated sentence and remanded for resentencing; district court must provide counsel and allocution; waiver not clearly established on record |
| Jurisdiction/timeliness of appeal | Whitmore: appeal timely from the 2014 amended judgment | Government: (agreed the court has jurisdiction) | Court has jurisdiction under 28 U.S.C. § 1291; appeal timely under Fed. R. App. P. 4(b)(2) |
| Whether jury findings and drug-quantity aggregation satisfied Apprendi and sufficiency requirements | Whitmore: quantity findings invalid—improper aggregation, insufficient evidence for any single violation, jury didn’t find quantities as required by Apprendi | Government: waived because not raised on direct appeal | Court did not decide; left issues to district court to consider in first instance |
| Whether Double Jeopardy (Housley) requires vacatur of attempt predicate convictions used for CCE | Whitmore: attempt predicates cannot be cumulatively punished with CCE per Housley | Government: waived for failure to raise on direct appeal | Court did not decide; remanded for district court to consider whether to exercise discretion to hear the claim; directed vacatur of count 37 in amended judgment |
Key Cases Cited
- Apprendi v. New Jersey, 530 U.S. 466 (2000) (criminal facts that increase penalty beyond statutory maximum must be found by jury)
- United States v. Avila-Anguiano, 609 F.3d 1046 (9th Cir. 2010) (when partial affirmance unbundles a sentencing package, district court may resentence on remand)
- United States v. LaFromboise, 427 F.3d 680 (9th Cir. 2005) (judgment not final until amended judgment is entered under certain remand circumstances)
- United States v. Gunning, 401 F.3d 1145 (9th Cir. 2005) (denial of allocution or counsel on resentencing can be prejudicial when sentence could have been lowered)
- United States v. Housley, 907 F.2d 920 (9th Cir. 1990) (district courts cannot impose cumulative punishments for attempt and CCE unless offenses are distinct)
- Griffith v. Kentucky, 479 U.S. 314 (1987) (new rules of criminal procedure apply retroactively to cases not yet final)
- Small v. Operative Plasterers' & Cement Masons' Int’l Ass’n, 611 F.3d 483 (9th Cir. 2010) (timely appeal divests district court of jurisdiction to enter subsequent judgment)