*1 America, STATES UNITED
Plaintiff-Appellee, MEDLEY, Defendant-
Pamela
Appellant. 05-2383.
No. Appeals, States
United Circuit. Tenth NM, Robins, Albuquerque, Jacquelyn Defendant-Appellant. 9, 2007. Feb. III, Assistant Federici Joseph Fred (David Iglesias, Attorney, C. States United him with Attorney, States United NM, Plaintiff-Ap brief), Albuquerque, pellee. ANDERSON, HARTZ,
Before McCONNELL, Judges. Circuit HARTZ, Judge. Circuit the 97- Medley complains Pamela remand our imposed after sentence month origi- than the resentencing is harsher appealed. she nal 78-month sen- the district occasions On both sentencing her within tenced Sen- computed first sentence tencing Guidelines. the second range; top The increase at the bottom. range result- in her First, at the sen- changes. two ed from used the court on remand tencing rather than of the Guidelines version sentencing; at the initial version used Medley on her version should that the argued sentencing on Second, at the used. been some correctly1 applied the court remand mis- had been provisions initial at the misapplied or takenly omitted challenge to them. no makes calculations that all Guidelines 1. We assume correct, were on remand *2 836
sentencing; on the 2Bl.l(b)(l)(H) § levels under for an in- Government had noted all but one of those tended $400,000 loss of between and $1 (4) and argued Medley million; errors that Ms. there- 2 added money levels for laun- fore would benefit from a dering § remand for 2S1.2(b)(l)(B); (5) under resentencing. Ms. Medley contends that 2 added levels for justice obstruction of an unrebutted presumption § of vindictive- under 3C1.1. It calculated her criminal ness attached to the district history I, court’s category as her sentence on remand. She also argues that prior countable offense was a 1992 convic- the district disregarded court our in mandate tion California. The to resentence her in light of United States was therefore 51 to 63 months. The PSR Booker, 543 added, 125 however, U.S. S.Ct. 160 that her criminal-history (2005), L.Ed.2d 621 because it category did failed not adequately reflect her explain why her initial 78-month background. was not reasonable. disagree. There government The filed a motion for an
is no for a presumption basis of vindictive- upward departure under the Guidelines on ness; if were, there presumption “ ground that Ms. Medley’s ‘criminal was rebutted. And there was no Booker history category does adequately re- error. flect the seriousness past of [her] criminal conduct or the likelihood that will [she] I. BACKGROUND ” commit other crimes.’ R. Vol. Doc. 110 In January 2002 Ms. was con- 4A1.3). 1 (quoting § USSG It suggest- victed on fraud, five counts of wire see 18 ed that a criminal-history category of V 1343; § U.S.C. six fraud, counts of mail minimum level necessary pro- 1341; § see id. one count of making a public tect from Ms. Medley. Ms. fraudulent claim on government, see Medley objections filed in PSR 287; §id. seven counts of money launder- which she maintained that she was inno- ing, § 1956(a)(l)(B)(i); see two counts cent of all the crimes that the PSR had a impersonating employee, identified as warranting an upward depar- 912; § see id. one count making false ture, but she did not dispute the PSR’s statements, 1001; § see id. and one count application of the 2001 Guidelines. of falsely representing her social security The district court conducted the sen- number, 408(a)(7)(B). see 42 § U.S.C. The tencing hearing on December 2002. It convictions out of complex arose pattern adopted the PSR’s findings factual and its of deceit that she employed in attempting Guidelines calculation. It also determined obtain funds intended for upward that an departure was warranted victims of the New Mexico Cerro Grande because a criminal-history category of I Fire. She was not a victim of the fire. did not sufficiently account for Med- The office applied the 2001 ley’s past criminal conduct. The court version the Guidelines in her preparing found that she had violated court orders presentence investigation (PSR). report connection with a baseless lawsuit that she PSR, as modified addendum, an against had filed the University of Califor- at a arrived total offense level of after it Center, nia Medical attempted to drug (1) grouped all the conviction counts to- attorneys of opponents case, gether (2) § 3D1.2(d); USSG ap- committed fraud effort obtain plied 2Sl.l(a)(l) §§ and 2B1.1 to arrive at license, New Mexico medical and made (3) 6; base offense level of added false statements in an application pub- (under $500,000 more ruled therefore lie assistance. 2Fl.l(b)(l)(K)), plan- more-than-minimal III, § category of criminal-history 2Fl.l(b)(2)), so- (under the use of ning range of 63 to a leading (under means phisticated repre- more imprisonment, months’ *3 of iden- 2Fl.l(b)(6)(C)), use unlawful § the past criminal Medley’s of Ms. sentative of iden- means another to obtain tification of a sentence imposed The court conduct. 2Fl.l(b)(5)(C)(i)), (under and § tification 78 months. 3D1.4). (§ It calculat- rules grouping and conviction her Medley appealed Ms. III category criminal-history of that ed raising a brief filed Her counsel sentence. sentencing her in Guidelines place would eight were stating that but nine issues imprisonment. months’ to 97 range of 78 California, 386 v. Anders under raised briefs, original of After submission L.Ed.2d 493 18 738, 87 S.Ct. U.S. to this court a letter Medley sent Ms. motion (1967) (court grant counsel’s may remanded We argument. raising a Booker that a brief counsel files after to withdraw Booker, issued resentencing because for and of avenues possible explores had sentencing, Medley’s original after Ms. merit). The all lack that demonstrates advisory; Ms. the Guidelines rendered had court the district was that ninth issue error preserved Booker Medley had version the 2001 applying erred in not sentencing; and the Guide- the 2001 of Application Guidelines. was sentencing error established version, she the 2000 lines rather Medley, v. States harmless. See three- in an additional resulted argued, Cir.2005). 248, 252 Fed.Appx. 130 under level the offense increase level un- rendered the remand said that Guideline, USSG amount-of-loss Medley’s Ms. for us to address necessary (2000). Medley also 2B1.1(b)(1) Ms. § See issues. other asserting brief se pro filed a submitted remanded remand On be vacated PSR, made objections previously 2000 Guide- under resentencing for in the the mistakes pointing lines. its brief noted in it had PSR that con- brief appellate government’s Medley’s responses of Ms. One appeal. 2001 Guidelines that use of tended her own objections was government’s plain error Noting that error. plain greater “any which objection to “seriously af- error only when arises previously which than the sentence repu- fairness, public or integrity, fects at 5. 1 Doc. R. 130 Vol. imposed.” An- Aplee. proceedings,” judicial of tation addendum office’s 38; see United 03-2026 at in No. Br. swer ob- government’s tracked the PSR Gonzalez-Huerta, F.3d 403 the 2000 applied It jections. Cir.2005) (en banc), brief 732 money-laundering counts grouped no such effect would be that there argued (wire counts the fraud from separately offense Medley’s Guidelines Ms. because fraud, claims, imperson- fraud, false mail if correct- calculated be level would statements, represen- and false ation, false govern- Specifically, ly on remand. number). com- It security social tation of money- her fraud ment asserted level offense Medley’s base mistakenly puted had been laundering counts USSG 6 under as grouping fraud the 2000 under and that together grouped under 10 levels 2Fl.l(a); added § in- would level her offense of loss 2Fl.l(b)(l)(K) an intended § loss of an intended creased 838 $500,000;
more than added levels under the district again granted an upward 2Fl.l(b)(2)(A) § for more than minimal departure, assigning a crimi- planning; added levels nal-history under category of III. It also adopted 2F1.1(b)(4)(A) § for impersonating gov- the offense-level calculations set forth in ernment employee; added levels the second PSR, under addendum to the result- 2Fl.l(b)(5)(C)(i) § ing unauthorized use of Guidelines range of 97 to 121 identification to obtain months’ imprisonment. another form of It stated that this identification; added 2 levels was sufficient satisfy pur- 2F1.1(b)(6)(C) § poses for use sophisticated sentencing, noted that it had con- means; 3553(a) sidered the § and added factors, levels under U.S.C. 3C1.1 *4 and justice. obstruction of Ms. adjusted Medley sentenced to 97 months’ offense incarceration. The level for the fraud offenses then was 26. addressed her argument: It then vindictiveness grouped the money-laundering counts, 2Sl.l(a)(2) § and under regard deter- With to the argument that was mined a base-offense level 20. After made [about] vindictiveness, I must ad- applying adjustment another two-level dress that.... I have ... reviewed] justice obstruction of 3C1.1, your § transcript, it and your look[ed] arrived at adjusted I case. you offense level of 22. do believe that have re- It computed then ceived the of a combined-offense benefit truly individual- 3D1.4, level under ized resulting analysis.... Booker I a total am always careful, very offense level of 28. The and very I’ve been feature of careful in your It calculation not noted in case. doesn’t govern- bother me that you appealed. prior ment’s appellate Please brief was the don’t ever think up- that. adjustment fact, ward As a matter of I look at impersonating gov- appellate process ernment as a employee. safety net.... Based criminal- just handle history I, many too category criminal cases in applicable Guide- day, one and I lines thank was 78 to God there 97 months’ are imprison- people other looking shoulder, ment. over our objections filed to the and making sure that addendum, we don’t make a but the office mistake so that rejected someone that them in a shouldn’t third addendum. in jail long as as we have sentenced The district court resentenced Ms. Med- jail.... them to I’m glad somebody else ley on November 2005. Her counsel is looking at this.... I do believe that argued vindictiveness, stating that “[i]t is the enhancements that brought were up position our that if the court were to in- for the first during time this round of sentence, crease the it could be seen as a sentencings very are justified much by sign of vindictiveness on part of the your case, actions this by and court, or on part prosecution,” case, facts the facts that R. Yol. 12 at “if Court were to existed at the time of the original sen- increase the sentence from what it found tencing. appropriate, based on basically the same R. Vol. 12 at 54-57. evidence presented [as was at the first sentencing hearing], then it would be II. ANALYSIS sign of part vindictiveness on the Ms. Medley contends that the increase Court.” Id. at 39. in her sentence on remand must be set
Restricting itself to (1) the evidence that aside because has not had been before it at the first sentencing, rebutted the presumption that the increase Supreme See first trial. for her retaliation from vindictive resulted of vindictiveness presumption that no held (2) sentencing court first imposed the judge who arose Booker because comply with not did judge who been the had also sentence new sentence original why the explain failed to a new trial granted not reasonable. at 138- See id. original sentence. after the It further held 976. S.Ct. A. Vindictiveness was over of vindictiveness presumption contends Although the for the explanation judge’s come vindic- preserve Medley did 141. id. at See in sentence. increase re- below, we need argument tiveness explana recognized that McCullough that we Assuming matter. solve prior within the Court’s not come tion did review, see United de novo apply sentencing au ‘a “permit[ting] language 1238, 1246 Gurule, F.3d an increased justify thority Cir.2006) (constitutional challenges conduct identifying relevant affirmatively novo), affirm. we de are reviewed subsequent that occurred or events ” the dis- resentencing Medley’s At Ms. Id. sentencing proceedings.’ *5 sentence higher a imposed trict court v. omitted) (brackets Wasman (quoting of her Guidelines a recalculation on based 559, 572, States, 104 S.Ct. U.S. 468 in- that this claims sentencing range. She (1984)). But, it ex 424 3217, 82 L.Ed.2d in forth set doctrine violates crease ... was never language “[t]his plained, 711, Pearce, 89 U.S. 395 v. exhaustively North all of Carolina to describe intended (1969). The 2072, 656 23 L.Ed.2d a sentence which S.Ct. circumstances possible that to case Restricting in that stated justified. Court Supreme could be increase increase [vindictiveness]” absence a sentence justifications “assure subsequent from chal- defendants occurred deter ‘events that that would convictions, could sentencing proceedings’ the Due Process their lenging re judge to absurd a lead “whenever in some circumstances requires that Clause a upon Id. sentence sults.” a more imposes severe trial, reasons after a new defendant 794, Smith, 109 490 U.S. v. Alabama affirmatively appear.” doing so must his (1989), then 2201, 865 104 L.Ed.2d S.Ct. 726, 2072. at 89 S.Ct. Id. its essen- doctrine the Pearce reduced after re- higher sentence that the argues that defen- held tial core. of vindictive- presumption mand creates actu- prove [that] “to the burden dant has not rebut- has 799-800, ness that 109 S.Ct. vindictiveness,” at id. al ted. 2201, caused the arises vindictiveness presumption however, decisions, narrowed Later is a there “in which circumstances only in 475 U.S. McCullough, v. In Texas Pearce. that the increase likelihood reasonable (1986), 976, 104 L.Ed.2d 134, 89 106 S.Ct. actual vindic- product is the to 20 the defendant had sentenced jury au- sentencing part tiveness a retrial the but after imprisonment, years’ (citation 799, 2201 109 S.Ct. at thority,” id. years. See to 50 him judge sentenced omitted). marks quotation and internal explained judge 136, 106 976. S.Ct. Rourke, v. States on new in United based Our decision higher sentence that the Cir.1992), instruc- showing that 984 F.2d trial at the second evidence of 13 original sentence Rourke’s tive. larger much played a had have included incarceration years’ at the than was crime evident in the role years’ term of parole. three See id. at that she be Booker, resentenced in light of 1065. After the sentencing hearing and 3553, because 18 U.S.C. as construed sentence, imposition of Rourke noticed Booker, required the court explain why that the district court had failed to include prior, vacated sentence was not rea parole term. See id. brought He (She sonable. does not contend that her error to the attention, district court’s argu- unreasonable.) new sentence is itself ing his imprisonment term of should review this contention de novo. See Unit reduced years three parole once the ed Acosta-Olivas, 71 F.3d term was added. See id. The court recti- (10th Cir.1995) (district court’s inter fied its error addmg three-year parole pretation of a statute or the Guidelines is term to the 13-year defendant’s sentence. novo). reviewed de See id. Because judge We discern no error. Our mandate af- explained that the increase was to “correct ter the first directed district an inadvertent omission comply court to Booker, resentence her in light of with mandate,” the statutory we held that which made the advisory, there there- was no merit to the defendant’s vin- by giving judge discretion in dictiveness claim. imposing Id. at 1066. sentence. See Medley, 130 Fed.Appx. at The circumstances of this case 252. As we have recently explained, there suggest hardly “a reasonable likelihood may be a substantial range of reasonable increase [Ms. Medley’s] sen sentences for a defendant. See United tence [was] product of actual vindic Begay, States v. Smith, tiveness.” 490 U.S. at Cir.2006). The sentencing court can prop- (citation S.Ct. 2201 quotation internal *6 erly any select term within that range and omitted). marks On the contrary, just as need explain not why did not choose the in judge Rourke was correcting an another reasonable sentence. error, the district court here comply ing with the mandate of Booker to compute III.
correctly the CONCLUSION Guidelines sentencing range and then consider that range in exercising Medley’s sentence is AFFIRMED. discretion under 18 U.S.C. § 3553. See Kristl, United States v. McCONNELL, Judge, Circuit (10th Cir.2006). 1053-55 Moreover, even concurring. were impose we to a presumption of vin dictiveness, the presumption clearly I agree with the majority that the cir- rebutted explanation the of cumstances this case do not suggest changes in the Guidelines calculation. “actual vindictiveness” on part of the sentencing judge. I agree also
On with the not does chal- majority’s lenge analysis any of of the legal narrow calculations, Guidelines question nor raised does higher she suggest that sentence on prove she can remand actual and Thus, join therefore vindictiveness. the opinion. hold we that But increase in there are her sentence reasons think deny did that our process. due current system of sentencing sys- a has tematic in bias favor of higher sentences B. Original Reasonableness of Sen- on remand from successful appeals, even tence appeals successful so, the defendant. If Ms. Medley also contends that presents troubling questions of fair- district court did not follow our mandate ness and possibly even of due process, a respect to time with a second vindictive- any “actual from wholly apart defendant, they often will dis- judges. particular of district part on ness” advisory Guidelines why the reasons cover Sen- system complex In —and a Whenever increased. be range should is surely qualify tencing Guidelines —there reversed, such and appealed is who that those chance a not-insubstantial That is what itself. present will occasion mistakes, make will the system administer then after appeal, and here: on happened adjust- applicable overlooking potentially remand, government re-examined that are Odds enhancements. and ments errors, calculations, objected to PSR are benefit these mistakes most of sug- This higher a sentence. obtained majority defendant, vast many that, appeal, after reversal upward gests relate provisions of Guidelines off even up worse will end ad- than downward defendants rather enhancements in the appel- victors they were the applicable though potentially If a justments. overlooked, most court. is late provision re- defendant will means likely that will end prospect if the calcula- than lower sentence ceive a of product primarily off is up worse flawlessly. Add performed tion were For the vindictiveness, complexity. but of defendant, who that the possibility this the of recounts manual reason same own his familiar with intimately usually is 2000 tended in Florida ballots punched not, will is way prosecution history that au- votes more valid produce pre- fly-specking the assiduous more to discover addi- tend of tax returns dits (PSR) prosecutors. report a Guidelines liability, a redo of tax tional case, example, In this produce likely to calculation the defendant’s mistakenly grouped PSR I am re- time around. range the offenses money-laundering fraud and teacher, algebra my tenth-grade minded of based enhancements applicable overlooked she would policy standing who plan- loss, minimal more than on intended only if the errors exam-grading correct means, unlawful sophisticated ning, use to have consented student complaining identification, justice, obstruction use *7 felt confi- I never regraded. entire exam employ- government impersonating risk. Defendants the enough to run dent cumulatively result- oversights ee. These the same. feel frequently must range nine- advisory Guidelines in an ed have valid, it should defen- lower are speculations teen months If these lest, the the bottom on from (measuring appealing wary may been be dants sentencing, initial During pros- range). remand, office probation chose notice or did not either Guidelines Sentencing revisit ecution errors, and the dis- range. these object to not to calculate calculations cal- PSR the erroneous adopted trict recalculation for sentence opportunity This advisory determining or in months culations payable effectively is tax— is this case Unless range. time—on prison Guidelines of additional years even many similar aberrational, must be there un- me as strikes This appeal. an taking the benefit receive defendants sys- cases where for the and bad fair to calcula- function, less-than-perfect of a important serve Appeals tem. tion. disincentives not create and we should they when to defendants criminal that, who administer if those It follows doing so. grounds meritorious to scour occasion system have however,
At this point, the existence of There is no doctrinal why reason sen- such a appeals purely specula- “tax” on is tencing subjected calculations cannot be Commission, tive. Sentencing which this rule. These expressly are calculations statutorily charged is keeping with by rele- found trial court on based evidence vant purpose statistics presented improving to it. Tellingly, dowe not allow 995(a), sentencing, 28 U.S.C. does not trial courts to legal revisit other or factual collect or analyze changes data on findings when, on remand inas the case of length of sentencing after I urge remand. sentencing calculations, predicate evi- it to do If my so. hunch there dence for are those findings was available at systematic tendencies increases toward the time of is hearing. See Unit- correct, it would also be useful to Monsisvais, ed know States v. 946 F.2d (10th whether product Cir.1991). these are the of recalcula- If recom- officers, tions objections by mends a miscalculated sentence at the trial the prosecution, level, or exercises of Booker and fails to challenge or otherwise discretion district Empirical courts. correct its mistakes on appeal, law-of-the- study of these matters academic re- case suggests they doctrine should not be searchers would be illuminating. allowed to take a try on remand. possible
One remedy to problem, if Even if an approach such were not it turns out really problem, there is a adopted wholesale, individual appellate apply principles of “law of the case” panels might consider phrasing their re- determinations. In other mands in sentencing decisions more nar- words, prosecution required would be rowly. every Not remand for re-sentenc- any objections raise PSR ing need be de novo. Appellate courts are initial sentencing; if the initial sentence is entitled to direct lower courts to address reversed, the remand would be limited specific issues on remand. See Unit- correcting the error identified on appeal Webb, ed States v. 98 F.3d 587-88 and would not extend to novo Cir.1996); de recalcula- Smith, v. tion of the entire advisory Cir.1997) (holding range. that on remand “the district court is free to reconsider the sentencing package de This is way similar to the appeals work novo appellate unless the specifi- court has in other legal general rule, contexts. aAs cally limited the district court’s discretion “once a issue, court decides an the same remand”). may issue relitigated in subsequent proceedings in the same Grigsby case.” Finally, district courts would do well to *8 Barnhart, 294 F.3d Cir. take possibility of an tax” “appeal into 2002) (quoting Ute Indian Tribe account in their exercise of Booker sen- Uintah Ouray Utah, Reservation v. tencing discretion. Title 18 U.S.C. Cir.1997)). F.3d 3553(a)(6) Ac instructs courts to avoid un- cording doctrine, to this lower court rul warranted disparities among de- ings not contested on appeal are aban fendants with similar records who have they are assimilated into the law been found guilty of similar conduct. If doned— may case—and not be upon revisited is true that defendants PSRs whose remand absent compelling circumstances. been recalculated as a result Price, See Demarest v. 942 n. remand systematically receive sen- (10th Cir.1997). tences than not, those who do provi- courts district suggests sion it. counter something to and do notice
take RELATIONS LABOR
NATIONAL
BOARD, Petitioner, INC., Respondent. SOOPERS,
KING Appeals, Circuit.
Tenth 13, 2007.
Feb.