U.S. v. Singletary
| Decision Date | 19 July 2006 |
| Docket Number | Docket No. 05-6145-CR. |
| Citation | 458 F.3d 72 |
| Parties | UNITED STATES of America, Appellee, v. Quentin SINGLETARY, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Second Circuit |
Robert G. Smith, Assistant Federal Defender (Jay S. Ovsiovitch, on the brief), Rochester, NY, for Defendant-Appellee.
Bradley E. Tyler, Assistant United States Attorney (Kathleen M. Mehltretter, Acting United States Attorney, on the brief), United States Attorney's Office for the Western District of New York, Buffalo, NY, for Respondents.
Before CABRANES, STRAUB, and HALL, Circuit Judges.
We consider here whether a presumption of vindictiveness is created by the decision of a sentencing judge, on a remand pursuant to United States v. Fagans, 406 F.3d 138 (2d Cir.2005), to impose a longer prison term than had been imposed at the original sentencing. At issue is the relation of two doctrines: (1) the rule that, absent newly discovered facts or a change in law, the imposition of a harsher sentence on remand following an appeal creates a presumption that the sentencing court acted vindictively to punish the defendant for appealing the original sentence, see, e.g., North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); United States v. Bryce, 287 F.3d 249 (2d Cir.2002); see also United States v. Goodwin, 457 U.S. 368, 374, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982), and (2) the advisory nature of the United States Sentencing Guidelines ("U.S.S.G." or "Guidelines") in the wake of the Supreme Court's decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
Defendant Quentin Singletary appeals from an amended judgment of the United States District Court for the Western District of New York (David G. Larimer, Judge) entered on November 2, 2005. The amended judgment reflected a new sentence that the District Court imposed pursuant to a Fagans remand by this Court following Singletary's appeal of his original sentence, which had been imposed prior to the Supreme Court's decision in Booker. The District Court had originally sentenced Singletary principally to 42 months' imprisonment. On the Fagans remand, the District Court imposed a sentence principally of imprisonment for 54 months.
On appeal, Singletary challenges his new sentence on two grounds. First, he argues that under Pearce and its progeny, the increased length of imprisonment imposed on remand creates a presumption of vindictiveness on the part of the District Court. Second, he argues that the District Court violated his Sixth Amendment right to trial by jury when, in calculating the appropriate advisory sentence under the Guidelines pursuant to Booker and United States v. Crosby, 397 F.3d 103 (2d Cir. 2005), it relied on facts neither proven to a jury beyond a reasonable doubt nor admitted by defendant. As we explain below, neither argument is persuasive. Accordingly, we affirm.
The facts material to this appeal are undisputed. Singletary pleaded guilty to the single count of an information charging him with violating 21 U.S.C. § 841(a)(1) by possessing cocaine base ("crack") with the intent to distribute it. Under the plea agreement Singletary signed, he and the Government agreed that his base "offense level" under the Guidelines was 12, his criminal history category was V, and his sentencing range would be 27 to 33 months' imprisonment. The agreement contained the disclaimer that the District Court might not make the same calculations and that Singletary could not withdraw his guilty plea if the District Court imposed a sentence more harsh than that anticipated by the parties.
At the original sentencing hearing, the District Court found that the projected range of 27 to 33 months was correct. It also found, however, that an upward departure was appropriate under U.S.S.G. § 5K2.4.1 The basis for the upward departure was that Singletary and three other persons coerced Marshall Jones, a seventeen-year-old boy whom they did not know, into driving them around in his parents' car. Jones testified that while he was alone in the family car, Singletary approached him, demanded that Jones give Singletary's friend "a ride," and appeared to have a weapon.2 The District Court therefore departed upwardly, adding three levels to the "offense level," with a resulting imprisonment range of 37 to 46 months. The District Court then imposed a sentence principally of 42 months' imprisonment.
Singletary appealed his sentence. Following the Supreme Court's decision in Booker, this Court remanded the case to the District Court for resentencing consistent with Booker and our decision in Fagans. See United States v. Singletary, No. 04-6003 (2d Cir. May 31, 2005).
On remand, the District Court advised the parties that it was again considering upwardly departing from the 27-to-33-month range and that it did not consider its previous sentence of 42 months to be a "cap or ceiling" limiting the new sentence under the advisory Guidelines. Singletary objected, arguing that no sentence above 42 months could be proper. Following briefing and a new sentencing hearing, the District Court sentenced Singletary principally to 54 months' imprisonment. The District Court stated at its October 28, 2005 hearing that
when the Court considered this previously, it was required pretty much to consider the sentencing in terms of the then mandatory guidelines. Those guidelines are now advisory. And based on the language in Booker... and other cases from the Second Circuit since then, the Court is charged now with considering the guidelines, but also determining ultimately what a reasonable sentence should be under Section 3553(a) of Title 18.
Then, after considering on the record various factors—such as Singletary's lengthy criminal record notwithstanding his young age,3 the seriousness of his carjacking,4 and a need to deter others from committing similar acts—the District Court explained that in its post-Booker discretion, it would impose a non-Guidelines sentence principally of imprisonment of 54 months. This appeal followed.
Singletary argues that because no new facts before the District Court at resentencing justified an increased sentence, the District Court's imposition of twelve additional months of imprisonment creates a presumption of vindictiveness. He relies principally on North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), in which the Supreme Court held that
[i]n order to assure the absence of such a [vindictive] motivation, we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal.
Id. at 726, 89 S.Ct. 2072; see Goodwin, 457 U.S. at 374, 102 S.Ct. 2485 (); see also Bryce, 287 F.3d at 256-57 . The District Court on remand imposed twelve more months of imprisonment than it did initially, even though there had been no apparent change in defendant's circumstances or in the court's understanding of the record of his crime. Defendant argues that the Pearce presumption of vindictiveness thereby arose. We disagree.
The Supreme Court has clarified that the Pearce presumption "do[es] not apply in every case where a convicted defendant receives a higher sentence on retrial" or at resentencing. Texas v. McCullough, 475 U.S. 134, 138, 106 S.Ct. 976, 89 L.Ed.2d 104 (1986). The presumption exists to prevent not "enlarged sentences after a new trial" but rather "vindictiveness of a sentencing judge." Id. Recognizing that "the Pearce presumption may operate in the absence of any proof of an improper motive and thus . . . block a legitimate response to criminal conduct," the Court has limited application of the presumption "to circumstances where its objectives are thought most efficaciously served." Alabama v. Smith, 490 U.S. 794, 799, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989) (internal quotation marks and citation omitted). Accordingly, before a defendant may invoke the Pearce presumption, there must be a "reasonable likelihood that the increase in sentence is the product of actual vindictiveness on the part of the sentencing authority." Id. (emphasis added and citation and quotation marks omitted). "Where there is no such reasonable likelihood, the burden remains on the defendant to prove actual vindictiveness." Id. at 799-800, 109 S.Ct. 2201 (citing Wasman, 468 U.S. at 569, 104 S.Ct. 3217).
We read Pearce and its progeny to require a preliminary analytical step before a reviewing court can determine whether the presumption of vindictiveness compels a reviewing court to vacate an increased sentence. This first step, which defendant has elided in his argument, is to determine whether the presumption even applies. In that regard we look to see if it is reasonably likely that the District Court imposed the increased sentence because it was actually being vindictive. Id. at 799, 109 S.Ct. 2201. If we find a "reasonable...
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