Untie a Sentencing Knot at Your Own Risk

The unpublished case of US v. Faulkenberry, (available here) illustrates the risk of higher sentencing many defendants face on remand.

Faulkenberry was originally sentenced to 120 months in a “sentencing bundle” consisting of concurrent sentences on multiple counts for money laundering, wire and securities fraud. The Sixth Circuit vacated the money laundering convictions, and remanded for resentencing – noting “Had the district court known that the money-laundering convictions were invalid, it might have chosen to make some of the other sentences consecutive rather than concurrent.” (The earlier opinion is at US v. Faulkenberry, 614 F.3d 573 (6th Cir. 2010)).

The district court followed this lead, imposing a total of 120 months at resentencing, changing two sentences from concurrent to consecutive. Faulkenberry appealed on double jeopardy and due process grounds.

Because a defendant who appeals his sentence can have no “legitimate expectation of finality” in that sentence, the Court (quoting the Second Circuit) explained defendants assume the risk of “untying the intricate knot of calculations should he succeed [on appeal]:”

When a defendant challenges convictions on particular counts that are inextricably tied to other counts in determining the sentencing range under the guidelines, the defendant assumes the risk of undoing the intricate knot of calculations should he succeed. Once this knot is undone, the district court must sentence the defendant de novo.