IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________________
No. 00-40585
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSÉ ALFREDO RESENDEZ-MENDEZ,
Defendant-Appellant.
_________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
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May 15, 2001
Before DAVIS, WIENER, and STEWART, Circuit Judges.
WIENER, Circuit Judge:
Defendant-Appellant José Alfredo Resendez-Mendez (“Resendez”)
asks us to vacate his 71-month sentence for illegal reentry that
the district court assessed following our vacatur and remand for
resentencing. Resendez also asks us to reinstate his original 57-
month sentence for the same crime or, alternatively, to remand
again for resentencing. We conclude that the district court’s
proffered reasons for increasing Resendez’s sentence on remand are
not sufficient to rebut the presumption of vindictiveness that
attaches when a harsher sentence is meted out on resentencing
following reversal or vacatur and remand. We therefore vacate
Resendez’s subsequently imposed 71-month sentence and reinstate his
original sentence of 57 months’ imprisonment.
I.
FACTS AND PROCEEDINGS
Resendez pleaded guilty to reentering the United States
illegally after deportation, in violation of 8 U.S.C.A. § 1326. In
exchange for his plea, Plaintiff-Appellee the United States of
America (“the Government”) agreed to recommend a sentence at the
low end of the range determined in accordance with the United
States Sentencing Guidelines. Recommending a three-level reduction
for acceptance of responsibility, Resendez’s presentence report
determined the appropriate guideline range to be 57 to 71 months’
imprisonment. The district court sentenced him to 57 months, the
shortest prison term in his guidelines range, to be followed by a
three-year term of supervised release.
We vacated that sentence on appeal because the district court
had failed to afford Resendez the opportunity to speak in
mitigation of his sentence. On remand, the same judge expressed
the opinion that Resendez was inadequately remorseful and
resentenced him to 71 months in prison, the longest period in his
guideline range, to be followed by a three-year term of supervised
release.
2
Before pronouncing the new sentence, the district court
afforded Resendez allocution, asking whether he had anything to say
to the court. Resendez responded:
Yes, Your Honor. I know —— first of all, I would
like to apologize again. I know I did wrong. I am here
because I didn’t know I was going to get this much time.
But if I knew that, I wouldn’t be talking to you right
now, to this Court.
I know I am not —— I have been illegal here, but
also I have done some good things, also. I helped save
three lives. Unfortunately couldn’t save the fourth
one.1
My wife had a work accident and it has been almost
a year that I was without a job, and she has trouble
struggling to survive with my little daughter. I ask if
it will be possible to have a less[ ] harsh sentence.
The court asked Resendez whether he was sure he had nothing else to
say, and after some further discussion stated to Resendez’s
counsel:
Because having reviewed and heard from your client
now in this particular hearing, I am not convinced that
he is very sincere and genuine. I am not convinced of
that.
Having given him the opportunity to speak to me, I
just don’t think he is very —— he is very honest. I
really don’t.
The defendant responded that he did not understand why the court
was “saying that I am not being honest with you. I am real sorry,
like I say.” The court replied:
Well, let’s not say you are not [sic] dishonest.
You don’t appear to be very repentant. You don’t appear
to —— you didn’t express any regrets having engaged in
this conduct. And that you know is why people have an
opportunity to address the Court. You know, they can say
1
Resendez referred to a car accident in which he rescued
three drowning victims.
3
something or they don’t have to say anything. But it
does touch upon a final decision to be made pursuant to
the sentencing processes.
I am not impressed with what you told me. I am not
convinced and persuaded that you are —— you do —— you are
repentant.
Resendez replied: “I don’t know how to say it, but I know I did
wrong. I am sorry for it.”
After imposing sentence, the court stated:
The Court does notice that I am modifying the sentence I
heretofore imposed, but I have already stated of record
that I simply had additional time to review the matter.
And it is [ac]knowledged that I am doing this at a time
when I am not facing sentencing ten or fifteen people at
the same time; and, in addition to that, I am not
convinced and persuaded from what you have told me that
you are truly sorry for the commission of this offense.2
Resendez timely perfected this appeal.
II.
ANALYSIS
A. Standard of Review
Although the Government contends that Resendez did not
contemporaneously object to the lengthier sentence, our review of
the record of the resentencing proves that, to the contrary, he
effectively did so.3 Therefore, we review de novo whether the
court’s proffered reasons for increasing the sentence on remand are
2
Contrary to the implication of this remark, the record
reflects that Resendez was sentenced individually in the first
instance, not in a group of ten or fifteen defendants.
3
After the court pronounced the new sentence, Resendez’s
counsel stated: “Your Honor, [ ] we ask the Court to reconsider
the issue of the 71 months, as you imposed the original sentence
of 57 months.”
4
sufficient to overcome the legal presumption that such an increased
sentence constitutes vindictiveness.4
B. Analysis
In North Carolina v. Pearce,5 the Supreme Court established
the rule that a presumption of vindictiveness attaches any time
that a defendant receives a harsher sentence on resentencing by the
same judge who imposed the previous sentence.6 We noted in United
States v. Campbell that the Pearce rule is “a prophylactic one,
addressed more to protect future litigants who appeal than to the
injustice done in the actual case. Tolerance of a court’s
vindictiveness might ‘chill’ a defendant’s right to seek an appeal
of her sentence.”7 Due process requires that a defendant not face
increased punishment solely as retribution for successfully
appealing a conviction, and also must “be freed of apprehension of
such a retaliatory motivation on the part of the sentencing
judge.”8 When a judge imposes a harsher sentence following a
4
United States v. Campbell, 106 F.3d 64, 66 (5th Cir.
1997).
5
395 U.S. 711 (1969), overruled in part on other grounds,
Alabama v. Smith, 490 U.S. 794 (1989).
6
Although Pearce addressed a harsher sentence imposed on
retrial, we also have applied it to resentence on remand. See
Campbell, 106 F.3d at 67 (citing United States v. Vontsteen, 950
F.2d 1086, 1089 n.2 (5th Cir. 1992)).
7
Campbell, 106 F.3d at 67.
8
Pearce, 395 U.S. at 725.
5
successful appeal, “some reason for the increase must plainly
demonstrate that no vindictiveness was involved.”9
In this case, there is no evidence that the district court was
actually motivated by subjective vindictiveness in imposing the
harsher sentence on Resendez’s second appearance. It is equally
plain, however, that the court neither expressed nor indicated any
objective reason sufficient to rebut the Pearce presumption of
vindictiveness; indeed, no objective reason at all. The great
deference we owe to district courts’ sentencing is erased by the
Pearce presumption when a harsher sentence is imposed on
resentencing, and the sentencing court must rebut the presumption
of vindictiveness with some objective reason for its reassessment.
In Pearce, the Supreme Court held that a trial judge may
impose a new, lengthier sentence
in the light of events subsequent to the first trial that
may have thrown new light upon the defendant’s “life,
health, habits, conduct, and mental and moral
propensities.” Such information may come to the judge’s
attention from evidence adduced at the second trial
itself, from a new presentence investigation, from the
defendant’s prison record, or possibly from other
sources.10
9
United States v. Schoenhoff, 919 F.2d 936, 938 (5th Cir.
1990).
10
Pearce, 395 U.S. at 723 (citation omitted); see also id.
at 726 (holding that reasons for imposing more severe sentence on
defendant “must be based upon objective information concerning
identifiable conduct on the part of the defendant occurring after
the time of the original sentencing proceeding”).
6
Our own precedent concerning such information has tended to focus
on the defendant’s criminal activity. United States v. Scott, for
example, centered on new information about the amount of drugs
involved in a conspiracy and the defendant’s personal involvement
in dealing crack cocaine.11 Similarly, in United States v.
Schmeltzer, we upheld a lengthier prison term on resentencing in a
case that involved both new convictions on additional charges and
an applicable four-level offense increase that had been overlooked
by the first probation officer.12 “The changed circumstances —— the
convictions for four different charges and the increased offense
level —— are sufficient objective events and information justifying
an increase so as to rebut any presumption of vindictiveness,” we
wrote.13
No similar newly discovered facts, changed circumstances, or
post-sentencing occurrences emerged regarding Resendez or his
criminal behavior following his original sentencing. We take
particular note of the fact that the district court did not rescind
its previous grant to Resendez of a three-level reduction for his
acceptance of responsibility, despite the court’s rejection of
11
48 F.3d 1389, 1398 (5th Cir. 1995).
12
United States v. Schmeltzer, 20 F.3d 610, 613 (5th Cir.
1994).
13
Id.; see also Texas v. McCullough, 475 U.S. 134, 136
(1986) (involving new evidence on retrial that (1) the defendant
—— not his accomplices —— had slashed a murder victim’s throat,
and (2) the defendant had been released from prison only four
months before the killing).
7
Resendez’s expressions of regret and remorse in his allocution as
insincere. It is as though the court was requiring the defendant’s
allocution to justify not increasing the original sentence, a
purpose opposite from allocution’s opportunity to seek a lesser
sentence.
We do not wish to discourage criminal defendants from
expressing remorse at allocution, or to impinge on a court’s
discretion to assess a defendant’s sincerity. We hold only that a
district court must identify some objective reason or reasons,
either occurring or discovered after imposition of the original
sentence, to overcome the presumption of vindictiveness and justify
a lengthier sentence when it imposes one on remand. Under the
circumstances of this case, we hold that the sentencing court’s
subjective discrediting of the defendant’s somewhat ambiguous
statements at allocution is objectively inadequate to rebut the
presumption of vindictiveness. Those statements, whether or not
disingenuous, did not constitute either objective information newly
acquired by the court following the original sentencing or
sentence-enhancing occurrences post-dating the original sentencing.
III.
CONCLUSION
We re-emphasize that the Supreme Court’s legal doctrine of
presumed vindictiveness, which we apply today, is an objective one.
As such, nothing in this opinion should be read to imply actual or
subjective vindictiveness on the part of the sentencing judge,
8
either toward Resendez for his successful appeal or toward this
court for our previous reversal and remand. Simply put, a
presumption of vindictiveness arises automatically when, on remand
following vacatur of sentence, the same judge who imposed the
original sentence assesses a stiffer one. For a harsher sentence
to stand under such circumstances, the re-sentencing court must
articulate specific reasons, grounded in particularized facts that
arise either from newly discovered evidence or from events that
occur after the original sentencing.
Our remand for failure to grant allocution has no correlation
with the presumption of vindictiveness that arose subsequently when
the sentence imposed on remand exceeded the original, vacated
sentence. Yet Resendez’s lack of sincere remorse in his allocution
is all that the sentencing court expressed in justification of the
increased sentence. As we have explained, reversal of the
presumption of vindictiveness and justification of an increased
sentence are wholly dependent on the sentencing court’s specific
verbalization of either new information or subsequent occurrences
that objectively support imposition of an enhanced sentence on
remand.
We do not take issue with the district court’s necessarily
subjective credibility call on Resendez’s sincerity or
truthfulness, either in proffering extenuating circumstances in
allocution or in expressing remorse or regret. In this case,
however, the sentencer’s subjective evaluation of the sincerity of
9
defendant’s allocution is neither relevant to the question of
vindictiveness nor probative in dispelling it. Such a subjective
determination is not a substitute for objective reasons sufficient
to reverse the legal presumption of vindictiveness and justify the
harsher sentence.
For the foregoing reasons, therefore, we vacate Resendez’s
sentence of 71 months in prison and reinstate his original 57-month
sentence, to be followed by a three-year term of supervised
release.
SENTENCE IMPOSED ON REMAND VACATED; ORIGINAL SENTENCE REINSTATED.
10