It used to be that a judge increasing a defendant’s sentence after a successful appeal was presumed to be acting out of vindictiveness. A petitioner cannot be punished by a sentencing judge for exercising his post-conviction right to appeal – that was the ruling in the Supreme Court case, North Carolina v. Pearce. However, the Supreme Court has since narrowed that presumption so that it now applies only to cases where “there is a ‘reasonable likelihood’ that an unexplained increase in sentence is the product of actual vindictiveness on the part of the sentencing authority.” Alabama v. Smith, 490 U.S. 794, 799 (1989).
In U.S. v. Singletary, the defendant pled guilty to crack cocaine possession with the intent to distribute. His plea agreement stated that the Guideline range would be between 27 and 33 months’ incarceration, but at the sentencing hearing the judge expressed the view that additional “aggravating” factors called for a greater sentence. During the course of the crime, Singletary and three friends had forced a terrified seventeen-year-old boy with whom they were not acquainted to drive them around in the boy’s parents’ car. Accordingly, the judge sentenced Singletary to 42 months.
Singletary appealed the sentence, and the Second Circuit Court of Appeals returned the case to the District Court for resentencing, not necessarily because it considered the sentence too harsh, but because the District judge had handed the sentence down pre-Booker. (Before the ruling in Booker, the sentencing Guidelines were mandatory – judges had to follow them. They are now considered merely advisory, meaning that judges must take them into account, but ultimately have the discretion to impose whatever sentences they consider appropriate.)
At resentencing, the District Court reviewed the facts of the case and decided to increase Singletary’s sentence to 54 months.
The defendant again appealed the ruling, arguing that the increase in sentence was vindictive. But the Court of Appeals disagreed, stating that, “because Booker fundamentally altered the law pursuant to which defendants are sentenced, that alteration of the law, standing alone, render[s] a challenge based on vindictiveness highly implausible.” U.S. v. Singletary, 458 F 3d. 72 (2nd Cir. 2006). Further, the Court of Appeals found the facts of the case to justify the District Court’s implementation of a non-Guidelines sentence, and upheld the increased sentence.