UNITED STATES of America, Plaintiff-Appellee, v. Stephen Donald JONES, Defendant-Appellant
114 F.3d 896
9th Cir.
1997
Check Treatment

*1 America, UNITED STATES

Plaintiff-Appellee, JONES,

Stephen Defendant- Donald

Appellant.

No. 96-30291. Appeals, Court of States

Ninth Circuit. May 7,

Argued and Submitted Decided June Bryan Lessley, E. Assistant Federal Pub- Defender, Eugene, OR,

lic for defendant- appellant. Hoar,

Sean B. Assistant United At- torney, OR, Eugene, plaintiff-appellee. Before: BRUNETTI and KOZINSKI, Judges. Circuit KOZINSKI, Judge. Appellant pled guilty knowingly manu- facturing, conspiring to manufacture and distribute, marijuana; he was sentenced to 5 prison $1,000 and ordered to Claiming given he had not been enough presentence time to report read the before sentencing, and therefore had not present been able to accurate financial infor- mation, he moved for pursuant to 28 U.S.C. 2255.

The district petition, court his or- dering

the clerk hearing [to] set a date for resen- tencing____ op- Petitioner shall have the portunity present contradicting alleged inaccuracies presentence report, and shall be resen- tence based on the court’s consideration of such evidence. March at 3. The Order con-

cluded: “The issue to be decided at the is the $1,000.00fine.” Id. at 3-4.

897 post-sentencing He on the district court conduct. relies Unit- now contends Jones (9th 801, him accord- refusing Klump, in to resentence v. 57 F.3d 803 erred in time of Cir.), Caterino, effect at the ing to the Guidelines v. 29 F.3d refusal that (9th 1394 and United States —a prison. in him He have cost several Gomez-Padilla, 286 that, his initial sentence was argues because Cir.1992). Gomez-Padilla, however, deals improper, district court was procedurally only with the in which a sentence situation the sentence and resen- required to vacate appeal “is determined on under 18 U.S.C. novo, thereby permitting reconsid- de tence imposed in [§ ] 3742 to have been violation every of the sentence. eration of element law____” 35(a). Fed.R.Crim.P. Caterino Gomez-Padilla, merely passage cites § is mistaken. U.S.C. Jones obviously that is 29 F.3d at 1394 dicta. See provides: (“In bar, post-sentencing the case at judgment that the If the court finds issue.”). Klump entirely not at relies on jurisdiction, or that the rendered without Caterino; moreover, supposed it mocks the imposed was not authorized sentence by holding proper that it is for a “rule” attack, open to collateral law or otherwise penal- to consider a state-court such a denial or or that there has been ty imposed sentencing and between resen- rights infringement constitutional of the tencing, “post-sentencing because a sen- judgment prisoner as to render “post-sentencing is not conduct.” 57 tence” attack, the court vulnerable to collateral Gomez-Padilla, event, any In F.3d at 803. judgment aside vacate and set the shall Caterino, Klump concern discharge prisoner or resen- and shall appeals. remand from the court of The grant a new trial or correct tence him or rule, right wrong,2 or has Gomez-Padilla appropriate. may appear as the sentence nothing say resentencing pursuant about added). ¶3 § (emphasis 28 U.S.C. say, resentencing to section 2255—that is to judges gives district wide the statute intervening remand. without post- choosing proper scope berth Judge Hogan was proceedings. While of caselaw to the the absence permitted to consider all of the sen- tence, contrary, give we must effect to the intent required to he was not do so.1 Sentencing Congress and the Commis resentencing, judge re-imposed At spe no make sion. Guidelines—which $1,000 fine; considering infor- he did so after that, resentencing require cial — post-dated im- regarding mation events fine, “any the court consider position original (Specifically, of the fine. presented as to the defendant’s situation, post- improved his financial Jones ability fíne.” U.S.S.G. mortgage.) sentencing, by paying down a 1.2(d)(2). Indeed, § courts should consid 5E argues now that the court should Jones equitable “any pertinent consider er argues have considered this information. He 5E1.2(d)(7). § common circuit, Id. This ations.” the law of this courts at under fines be tailored to considering prescription that precluded from sense pending judge imposes a more severe denying [W]henever In his order release resentenc- trial, upon a new a defendant after sentence Judge Hogan framed this issue affirmatively doing so must the reasons for his whether was correct that “the court is as Jones appear. must be based Those reasons at to limit the issues resentenc- concerning objective identifiable 24, 1996, ing.” May at 2. He concluded occurring part conduct on the authority. Despite Id. the dissent’s he had such original sentencing pro- the time of the conclusion, Judge contrary it seems clear that ceeding. Hogan knew he could consider more than the no reason to think the There is States,- See, e.g., changed Koon v. United this. 2035, 2046, -, -, U.S. See, possibly wrong. e.g., Quite (1996) ("DDjistrict North Carolina retain courts Pearce, sentencing discre their traditional much of tion."). (1969): 23 L.Ed.2d 656 denying defendant’s motion finan- In the order can mean circumstances resentencing, pending entered af- for release fine is set. at the time the circumstances cial (“No had ter the court limitation U.S.C. See also 18 court seemed to indicate the district concern- the information placed on shall be *3 character, had not been remanded because the sentence and conduct background, ing the appeal, it had no being vacated on a of an offense which convicted person of a imposing a new term of to consider may and receive the United court of incarceration. ap- purpose of an for the consider (un- sentence.”); § 1B1.4 U.S.S.G. propriate The court stated: “may Guidelines, sentencing judge der the by inappo- cited The cases limitation, any consider, information Medrano, 5 F.3d States v. site. and background, character concerning the (9th Cir.1993), Sus- defendant, unless otherwise (9th Cir.1993), taita, 1 and Unit- law”); by Nichols v. United prohibited F.2d 1009 Fagan, States, resentencing the remands for (1994)(“As 1927-28, gen- L.Ed.2d 745 involving appeals ordered after direct were ‘may sentencing judge proposition, a eral Accordingly, length the sentences. the of inquiry broad appropriately conduct remand, length information about the as to the kind scope, largely unlimited either length and the the sentences was heard of consider, may or the of he In this the sentences reconsidered. of (quoting from which it come.’” source however, only pertinent the issue is Tucker, 404 U.S. United States v. fine____ the of $1000 (1972))). length of defendant’s term of incarceration the and statu- The court followed not at issue.” by considering best tory commands 68, 69] [ER re-setting Jones’ available information district court To' me this indicates that the it to consider did not believe had discretion AFFIRMED. aspects the sentence. Even if that is all of inference, however, it is at best not a correct Dissenting. Judge, whether the court knew it had uncertain involving “re- such discretion a case majority grant- agree I with the ap- after direct mands trial involving length the sentences.” peals the sen- “permitted all to consider agree not re- I also that he was tence.” court, re- I would remand to the quired he had the discretion to do so. requesting expedite it the exer- spectfully in accordance resentence Jones whether to discretion whether “to consider all cise of its the time of guidelines with in effect at aspects of the sentence” of first-time hearing, including the safe- offender. 3553(f), ty valve of 18 U.S.C. disregard the five- which allowed the court to

year statutory minimum for Jones’s offense. time of guidelines

Under the in effect at the resentencing hearing, Jones’s sentence

would 24-30 months instead of have been which he was sentenced —a months to imprison- difference of to 3 1/2 Angelo; ABROMSON; Ronald Leslie ment! Ballan; Camardella; Elie De Eli Louis Kolker, Cominges; and the believe, however, Sandra the trial I do not plaintiff the Court class certified judge understood that he had discretion (“Class”) persons consisting all resentence Jones accordance with purchased the common entities who guidelines. current