United States v. Weingarten
713 F.3d 704
2d Cir.2013Background
- Weingarten was convicted in EDNY of two counts under 18 U.S.C. § 2423(a) and three counts under § 2423(b) for sexually abusing his minor daughter; he was originally sentenced to 30 years.
- On appeal, Count Three was vacated for lack of sufficient territorial nexus, and remanded for resentencing on the remaining four counts.
- At resentencing (2011), the district court kept the aggregate 30-year sentence but changed Count Four to run consecutively while others ran concurrently.
- Weingarten challenges: (1) § 2423(b) is a lesser included offense of § 2423(a) and thus consecutive sentences violate double jeopardy; (2) potential merger/pyramiding penalties for related counts; (3) increased sentence on remand after vacatur without intervening circumstances violates due process.
- The Court evaluates double jeopardy under Blockburger, discusses congressional intent, and applies remand sentencing principles to determine if the reimposed sentence is permissible.
- The panel affirms the district court’s judgment, concluding no double jeopardy violation, no improper merger, and no due process violation under Pearce/Sisani frameworks.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §2423(b) is a lesser included offense of §2423(a) | Weingarten: §2423(b) is contained in §2423(a) so consecutive sentences violate double jeopardy | Weingarten: same conduct under both statutes supports merger | No; §2423(a) and §2423(b) require proof of distinct elements and may be sentenced separately. |
| Whether Congress intended consecutive sentences for §2423(a) and §2423(b) | Government: offenses are distinct and may be punished separately | Weingarten: counts structured as stages of one undertaking warrant merger | No merger; Blockburger governs and supports consecutive sentences. |
| Whether increased sentence on remand after vacatur violates due process (PISANI framework) | Government: Pisani allows increased sentence after related counts vacated | Weingarten: Pisani limited to unrelated counts; vacatur of related count changes mosaic | Pisani limited to unrelated counts; here related counts remain and the circuit properly remanded with de novo consideration. |
| Whether Pearce/vindictiveness doctrine applies to remand sentencing | Weingarten: presumption of vindictiveness applies to increased sentence after appeal | Government: no vindictiveness shown; same aggregate sentence justified | No presumption or actual vindictiveness; the district court adequately justified the remand sentence. |
| Whether the remand sentencing preserved the overall severity and was appropriate under 3553(a) factors | Yes; the court conducted de novo review, considered 3553(a) factors, and maintained a just total aggregate sentence. |
Key Cases Cited
- United States v. Khalil, 214 F.3d 111 (2d Cir. 2000) (establishes Blockburger analysis for distinct offenses)
- Prince v. United States, 352 U.S. 322 (U.S. 1957) (limited merger when one offense is a preliminary step to another)
- United States v. Gore, 154 F.3d 34 (2d Cir. 1998) (limited merger principles; relation to Prince)
- United States v. Maslin, 356 F.3d 191 (2d Cir. 2004) (double jeopardy review de novo; guidance on related counts)
- United States v. Basciano, 599 F.3d 184 (2d Cir. 2010) (Blockburger same-elements test application to conspiracy/related offenses)
- United States v. Dixon, 509 U.S. 688 (1983) (establishes same-elements test (Blockburger) over earlier tests)
- Pearce, 395 U.S. 711 (U.S. 1969) (vindictiveness due process concern after successful appeal)
- Gall v. United States, 552 U.S. 38 (U.S. 2007) (3553(a) factors and individualized sentence)
- Pisani, 787 F.2d 71 (2d Cir. 1985) (addressed increasing a sentence on unrelated counts after vacatur)