U.S. v. Whren
| Decision Date | 10 July 1997 |
| Docket Number | No. 95-3193,95-3193 |
| Citation | 111 F.3d 956 |
| Parties | UNITED STATES of America, Appellee, v. Michael A. WHREN, Appellant. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the United States District Court for the District of Columbia (No. 93cr00274-01).
Lisa B. Wright, Assistant Federal Public Defender, argued the cause for appellant, with whom A.J. Kramer, Federal Public Defender, Washington, DC, was on the briefs.
Elizabeth H. Danello, Assistant U.S. Attorney, argued the cause for appellee, with whom Eric H. Holder, Jr., U.S. Attorney, John R. Fisher, Elizabeth Trosman, and Nancy R. Page, Assistant U.S. Attorneys, Washington, DC, were on the brief.
Before GINSBURG, HENDERSON, and TATEL, Circuit Judges.
Opinion for the Court filed by Circuit Judge GINSBURG.
In this appeal we are asked to decide whether a criminal defendant whose case we have remanded to the district court for resentencing may there raise for the first time a challenge to his sentence that is unrelated to the reason for the remand. We hold that he may not do so unless his newly-raised objection to the sentence is based upon an error so plain that the district court or the court of appeals should have raised it for him.
Michael Whren was convicted on four counts: One, possession with the intent to distribute 50 grams or more of cocaine base (the distribution count); Two, possession with the intent to distribute 50 grams or more of cocaine base within 1,000 feet of a school (the schoolyard count); Three, possession of marijuana; and Four, possession of phencyclidine, a/k/a PCP. Pursuant to the United States Sentencing Guidelines, Whren was sentenced to serve 168 months in prison and to pay a special assessment of $150.
The base offense level for the distribution count, determined by the quantity of drugs involved, was 32 which, considering Whren's Category II criminal history, produced a sentencing range of 135-168 months. The base offense level for the schoolyard count was 34, being the same 32 for the quantity of drugs involved plus a two-level enhancement because the drugs "directly involved a protected location." U.S.S.G. 2D1.2(a)(1). An offense level of 34 for an offender with a criminal history in Category II produces a sentencing range of 168-210 months. Whren did not dispute the district court's determination that 34 was the correct base offense level for his violation of the schoolyard statute. The district court then sentenced Whren to the maximum of 168 months on the distribution count and to the minimum of 168 months on the schoolyard count, the sentences to be served concurrently.
Whren appealed to this court arguing, among other things, that the distribution count should be vacated because it is a lesser included offense of the schoolyard count. Whren acknowledged that, because he did not appeal the sentence for the schoolyard conviction, vacatur of the distribution count would have no effect upon his overall sentence other than to reduce his special assessment by $50.
This court affirmed Whren's convictions on Counts Two, Three, and Four, as did the Supreme Court; --- U.S. ----, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). We reversed Whren's conviction on Count One, however, holding that possession with the intent to distribute is a lesser-included offense of possession with the intent to distribute within 1,000 feet of a school. "Consequently ... we remand[ed the case] to the District Court for entry of an amended judgment and resentencing on Counts One and Two." United States v. Whren, 53 F.3d 371, 376 (1995). We did not say why vacatur of the distribution count necessitated a remand for resentencing upon the schoolyard count, but Whren concedes that the remand was consistent with this court's general rule that when "we cannot ascertain whether the District Court's sentence on a valid conviction was influenced by a conviction on a separate count that is later overturned on appeal, the proper course is to remand so that the District Court may reconsider the sentence imposed." United States v. Lyons, 706 F.2d 321, 335 n. 25 (1983).
At his resentencing hearing Whren sought to raise four issues that he had not raised either at the original sentencing or upon appeal. None of the four issues was in any way related to this court's vacatur of the distribution count. Whren argued first that the district court should grant a downward departure pursuant to § 5k2.0 of the Sentencing Guidelines, in view of the Special Report to the Congress: Cocaine and Federal Sentencing Policy (February 1995), in which the Sentencing Commission asserts that there is no justification for the large disparity between the prescribed sentence for a crack cocaine offense and that for a similar offense involving powder cocaine. Whren also urged the court to grant a downward departure in light of his educational efforts in prison. Whren next argued that he should not receive the two-level sentence enhancement normally meted out for a conviction under the schoolyard statute, see U.S.S.G. § 2D1.2(a)(1), because his presence near a school was fortuitous. (He was driving by when he was stopped and arrested.) Finally, Whren argued that if the district court did not have discretion to give him a pass on the schoolyard enhancement, then it should grant him an offsetting downward departure because his offense did not run afoul of the purpose of the schoolyard statute.
The district court ruled that it lacks authority to consider Whren's request for a downward departure based upon the Special Report of the Sentencing Commission. Whren does not challenge that ruling. The district court received testimony about Whren's educational progress in prison but ultimately concluded that such post-sentencing conduct is not a proper ground for a departure either. Whren does challenge this ruling but his challenge is both oblique--not to say cryptic--and belated, coming as it does in a footnote to his reply brief; absent extraordinary circumstances (not present here) we do not entertain an argument raised for the first time in a reply brief, Forman v. Korean Air Lines Co., Ltd., 84 F.3d 446, 448 (D.C.Cir.1996), or for that matter, in a footnote. Washington Legal Clinic for the Homeless v. Barry, 107 F.3d 32, 39 (D.C.Cir.1997). Finally, the district court expressly declined to consider Whren's arguments against penalizing him for proximity to a school because it concluded that our mandate implicitly prohibited it from doing so. It is that decision only that we now review.
Whren argues that when the court of appeals remands a case for resentencing, the district court is presumptively authorized to sentence the defendant de novo; only some limitation in the order of the appellate court--and he sees none in this case--could limit the district court's role after the remand. The Government, on the other hand, argues that the mandate in this case implicitly precluded the district court from considering anything other than our vacatur of the distribution count in resentencing the defendant on the schoolyard count.
Several circuits have held that when the court of appeals vacates a sentence the district court may, upon remand, take any evidence and hear any argument that it could have considered in the original sentencing proceeding. See United States v. Atehortva, 69 F.3d 679, 685 (2d Cir.1995); United States v. Jennings, 83 F.3d 145, 151 (6th Cir.1996); United States v. Cornelius, 968 F.2d 703, 705 (8th Cir.1992); United States v. Ponce, 51 F.3d 820, 826 (9th Cir.1995); United States v. Moore, 83 F.3d 1231, 1235 (10th Cir.1996). Two rationales have been given for this practice of de novo resentencing. In Moore, the Tenth Circuit reasoned that when a sentence has been vacated and the count remanded for resentencing the defendant is in the same position he was in before being sentenced for the first time. 83 F.3d at 1235. This is a rather formalistic approach. Although upon Whren's first appeal we remanded the case for resentencing without vacating his sentence, we do not want to rely now upon the technical distinction between vacatur and remand--to which we attached no apparent significance at the time--when substantial rights are involved.
In Jennings the Sixth Circuit offered a functional rationale for de novo resentencing upon remand: otherwise the parties would be forced to litigate every conceivable sentencing issue at the initial hearing, regardless of its relevance, lest they be precluded from later raising an issue that becomes relevant only because of subsequent events. The defendant in Jennings had not objected at his first sentencing hearing to certain findings in his pre-sentence report. The court of appeals then remanded for resentencing because the district court had overstated the quantity of drugs to be used in computing the defendant's base offense level. Upon resentencing it turned out that the findings in the PSR, immaterial when the larger quantity of drugs was being considered, would affect a sentence based upon the smaller quantity of drugs.
The Seventh Circuit has rejected the de novo approach, holding that "only an issue arising out of the correction of the sentence ordered by [the court of appeals] could be raised in a subsequent appeal." United States v. Parker, 101 F.3d 527, 528 (7th Cir.1996). The defendant in that case tried to raise in his second appeal issues that he had not previously raised (and that neither the district court nor the court of appeals had therefore ever ruled upon) and that were not affected by the remand for resentencing. By failing to raise the issues upon the first appeal, the court of appeals held, the defendant had waived them. Id.
This circuit has not previously adopted either approach to the scope of...
To continue reading
Request your trial
-
U.S. v. Gilliam
...and the court will not construe the briefs to raise an argument that is hinted at but never stated. Cf. United States v. Whren, 111 F.3d 956, 958 (D.C.Cir.1997).11 Among the convictions noted in the presentence report was a 1971 kidnaping conviction and a 1986 armed robbery conviction, for ......
-
Michigan Gambling Opposition v. Kempthorne
.... . . we do not entertain an argument raised for the first time in a reply brief . . . or . . . a footnote." United States v. Whren, 111 F.3d 956, 958 (D.C.Cir. 1997). 5. Hence the court has no occasion to address the Tribe's contention that the non-delegation doctrine is inapplicable becau......
-
U.S. v. Quintieri
...omitted)), cert. denied sub nom. Bowen v. United States, 528 U.S. 850, 120 S.Ct. 129, 145 L.Ed.2d 109 (1999); United States v. Whren, 111 F.3d 956, 960 (D.C.Cir.1997) ("A defendant should not be held to have waived an issue if he did not have a reason to raise it at his original sentencing ......
-
United States v. McGill
...analysis on remand de novo. Consistent with our usual practice, we decline to issue that instruction. See United States v. Whren, 111 F.3d 956, 959–60 (D.C.Cir.1997) ; see also United States v. Taylor, 937 F.2d 676, 684 (D.C.Cir.1991). "De novo resentencing is in essence a license for the p......
-
Reconstruction Sentencing: Reimagining Drug Sentencing in the Aftermath of the War on Drugs
...policies in order to acknowledge and seek to rectify the racially discrimi-natory impact of those laws. 170. See United States v. Whren, 111 F.3d 956, 961 n.1 (D.C. Cir. 1997) (Henderson, J., concurring) (citing United States v. Whren, 53 F.3d 371, 376 (D.C. Cir. 1995)). 171. See id. at 957......