Higher Sentence Imposed Following Booker Remand Not Vindictive

U.S. v. Medley, 2007 Wl 431494 (2/9/07) - Definitely a case to keep in mind when contemplating an appeal. The district court was not presumptively vindictive when she imposed a higher sentence after the sentence was reversed on appeal under Booker. The sentence went from 78 months to 97 months because the government and the probation office found new ways to enhance the guideline range. Imposing a higher sentence because mistakes were made in the original sentence does not raise a vindictiveness presumption. Ironically, the government had argued for affirmance of the original sentence on the ground that the defendant would receive a higher sentence on remand.The 10th also rejected the defendant's contention that the d.ct. had to explain why the original sentence was not reasonable. The 10th explains there may be a substantial range of reasonable sentences and the d.ct. can select any term within that range. What happened to that parsimony clause???!!! In an interesting concurrence, Judge McConnell worries that defendants are paying an "appeal tax" that may inhibit them from appealing. He posits that, since the guidelines are complicated and only provide for enhancements, mistakes are likely to be made in the defendants' favor. So, when defendants might have legitimate grievances regarding their sentences, they may not appeal for fear of ultimately getting more time, Judge McConnell thought that was unfair. He thought the Sentencing Commission should study whether sentences are higher on remand. Judge McConnell made a few suggestions to eliminate the unfairness: apply the law of the case doctrine; appellate panels might phrase their remand orders to limit what issues the d.ct. could consider; d.cts. could take notice of the "appeal tax" and lower their sentences on remand to avoid unwarranted disparities between those who appeal and those who don't.