By Jacqueline L. Bonneau and Harry Sandick on July 20, 2016
In United States v. White, 15-229-cr the Second Circuit ordered a remand for resentencing via summary order, instructing the lower court to consider the defendant’s post-sentencing rehabilitation. Although the order cannot be cited as precedent, it represents an important reminder that practitioners can raise new factual arguments at resentencing based on changes in the defendant’s circumstances since the time of the initial sentencing proceedings.
In 2013, White was convicted of several counts of making false claims against the United States and was sentenced to thirty-three months’ imprisonment. After an initial successful appeal, White was resentenced to time served. In connection with her resentencing, White sought a shortened term of supervised release based on her rehabilitation during her ongoing incarceration. During the resentencing hearing, the lower court erroneously concluded that it was not required to consider White’s post-sentencing rehabilitation and declined to shorten her term of supervised release.
In deciding to remand the case for a second resentencing, the Circuit explained that district courts are “obliged at resentencing to take into account such material changes in [the] circumstances [of the defendant] as have arisen since the original proceeding.” Based on this principle, the lower court erred in concluding that White’s post-sentencing rehabilitation need not be considered in fashioning her new sentence.
White highlights the opportunities available to practitioners during resentencing proceedings. Even where a case is remanded for resentencing solely on the basis of a legal error, during resentencing, practitioners can and should raise new factual arguments that highlight any changes in their clients’ circumstances that might mitigate the penalties to be imposed. This rule provides an appropriate benefit for those defendants who have endeavored to change their lives after being convicted.
Commentary
This is not only a good case for the defendant it is an important case because I would bet that most lawyers and judges believe that the law is settled in these resentencing cases that only the legal error can be addressed. Prosecu-tors always make that argument and judges always seem to accept it. This case makes it clear that this is not the case.
David Zapp & Johanna Zapp