Pepper in the Pot and Double Jeopardy

While this fellow to the right appears to be making pancakes, the COA was using Pepper in its cooking.

In United States v. Vicol, No. 08--2547 (6th Cir. Nov. 19, 2010) (unpublished), the panel of Judges Martin, McKeague, and Ludington (E.D. Mich.), did not resolve for the 6th Cir. the Pepper v. United States issue currently pending in the Supreme Court (cert. granted June 28, 2010): whether post-sentencing rehab is fair game at a resentencing.

Procedural History:

*Nasty facts. D convicted at trial of kidnapping.

* Dist ct applied wrong (pre-offense) GLs, which called for base offense level of 24 rather than 32. D sentenced to 188 months (max under outdated GLs).

* Day after sentencing, gov moved to "correct" the sentence under Rule 35.

* Dist ct held hearing. Imposed new sentence of 360 months.

* On ORIGINAL appeal, COA said dist ct had lost jurisdiction by not acting within 7 days per Rule 35.

* Original COA remanded for imposition of 188-month sentence. Told both parties they could appeal after that sentence reimposed.

* 188-month sentence entered. Gov. appealed.

* COA once again heard the appeal. Found 188-month sentence was in error. Based on erroneous GL application. Another remand.

Second Remand:

* Case reassigned to new dist ct judge.

* D presented info on his rehab in prison. Asked for downward departure.

* Dist ct. said it had looked at Worley and Keller and decided it could not consider post-sentencing rehab. (These cases deal with post-Booker remands.)

* Dist ct said that even if it COULD consider post-sentencing rehab it would impose the same sentence of 360 months of imprisonment.

* D appealed.

Conclusions of COA:

* COA concluded that even if the dist ct erred regarding its decision not to consider post-sentencing rehab the error was harmless b/c dist ct was clear the sentence would not change.

* D also argued that Double Jeopardy Clause and gov's failure to cross-appeal (original 188-month sentence) should bar imposition of sentence greater than 188 months. But failed to make this argument in dist ct, so plain-error review applied.

* COA found that gov did not fail to appeal original sentence. No judgment was ever entered for original sentence. First judgment was entered for 360 months when dist ct originally "fixed" its sentence (beyond its jurisdiction). Judgment for 188 months was not entered until after first remand, and gov appealed at that time. Sentence not final, so increase in sentence upon remand did not implicate Double Jeopardy.