In his third round of appeals, we affirmed defendant Cureton's convictions and sentences for using a firearm during a crime of violence and related crimes.
In his statement under Circuit Rule 54, Cureton urges full resentencing on a theory of plain error. The government argues for either affirmance or a limited remand along the lines of United States v. Paladino ,
In our reviews of § 924(c) sentences imposed before Dean was decided, we have looked in the district court records for reliable signals as to whether the sentences were constrained by the Roberson rule. If it was clear that the sentence was not constrained by Roberson , we have simply affirmed the sentence. United States v. Wheeler ,
The signals here fit into the cloudy category. Cureton was originally convicted of attempted extortion, interstate communication of a ransom demand, two counts of possessing a firearm during a crime of violence, and three counts of distributing crack cocaine near a school. He was first sentenced to a total of 744 months (62 years) in prison. In the first appeal, we held that Cureton should have been sentenced for only one § 924(c) offense, and on remand his sentence was reduced by 300 months (the mandatory minimum for the second § 924(c) offense) to 444 months (37 years). Cureton appealed again, and we remanded because of issues raised about conditions of supervised release. On remand, the district court imposed the same total sentence of 444 months, leading to the present appeals.
That total sentence used the bottom of the guideline range for the crack cocaine charges and the mandatory minimum 84 months on the § 924(c) charge. Yet each round of sentencing has included the statutory maximum 240 months for the ransom demand, signaling that the judges were not inclined to reduce the sentence for that predicate crime. Also, the 360 months of non-924(c) sentences take into account several very serious crimes. Finally, in the course of all three sentencings, including the opportunity to reduce the sentence after the initial remand, neither the original sentencing judge nor the judge on remand has given any sign that he felt constrained by Roberson or believed that the reduced total sentence of 444 months was too severe.
Under these circumstances, a limited Paladino remand should suffice. We order a limited remand so that the district court can determine whether it would have imposed the same sentence on Cureton, knowing that in light of Dean , it may consider the mandatory sentence under § 924(c) when deciding the sentences for other crimes, or whether the court wishes to have a new opportunity to exercise its discretion and judgment in a complete resentencing. We shall retain jurisdiction over these appeals pending the district court's response.
SO ORDERED.