United States v. Lence

Citations: 466 F.3d 721; 2006 WL 3019477Docket: 05-30236

Court: Court of Appeals for the Ninth Circuit; July 27, 2006; Federal Appellate Court

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The Ninth Circuit Court of Appeals addressed whether a criminal defendant has the right to be resentenced by the original sentencing judge following a remand due to Booker error. John Lence, convicted of multiple counts of bank fraud, was initially sentenced by Chief Judge Donald W. Molloy to 24 months after a downward departure based on his personal circumstances. Lence's conviction was affirmed, but his sentence was vacated due to an abuse of discretion regarding the downward departure. Upon remand in July 2004, Judge Molloy resentenced Lence to 21 months without a downward departure, citing the jury's findings as the basis for his decision. After the Supreme Court's Booker decision, which made sentencing guidelines advisory, Lence moved to vacate his sentence for resentencing. The case was then transferred to Judge Sam E. Haddon, who conducted a new hearing, applied enhancements for amount of loss, more-than-minimal planning, and abuse of trust, and calculated an adjusted offense level of 20.

Judge Haddon sentenced Lence to 33 months in prison, three years of supervised release, and a $7,500 fine, finding the Guidelines’ range of 33-41 months reasonable. Lence appealed, arguing he should have been resentenced by Chief Judge Molloy, that sentencing enhancements must be based on facts proved beyond a reasonable doubt, that Judge Haddon’s sentence reflected vindictiveness, and that the government should be estopped from seeking certain enhancements. 

Lence's appeal cites United States v. Ameline, which allows limited remand for defendants who did not preserve claims of Booker error, to determine if the sentence would differ under advisory Guidelines. However, as Lence preserved his claim regarding the loss enhancement, he is entitled to a full resentencing under Booker rather than a limited remand. The court noted that even under Ameline, a limited remand is unnecessary if the sentencing judge indicated a willingness to impose a different sentence under advisory Guidelines. 

The court believes that the original sentencing judge should conduct the resentencing, especially if the judge has expressed strong opinions on the sentence required under the mandatory Guidelines. Additionally, the court addressed Lence’s argument regarding judicial estoppel, which prevents a party from taking contradictory positions in legal proceedings. The case is remanded for resentencing by the original judge, considering Lence's preserved claims and the government's earlier stance regarding the enhancements.

The government did not argue against the application of sentencing enhancements based on a lack of factual support but rather contended that these enhancements had not been proven to a jury. Initially, Chief Judge Molloy applied the enhancements at Lence’s first sentencing. At the second sentencing, the government requested the court not to apply them due to confusion stemming from the Blakely decision, which had altered sentencing law. However, by Lence's third sentencing, the Supreme Court's decision in Booker clarified that judicial consideration of additional facts under the now-advisory Guidelines does not violate the Sixth Amendment. The government’s position throughout did not demonstrate a clear inconsistency, and Chief Judge Molloy was aware of the uncertainties created by Blakely, as well as the rationale behind the government’s request. Consequently, allowing the government to seek these enhancements at resentencing does not provide it with an unfair advantage over Lence, especially considering the judge's discretion in sentencing post-Booker. Therefore, the application of judicial estoppel is not supported in this case. The previous sentence is vacated, and the case is remanded to the district court for resentencing, allowing the government to pursue the enhancements of more-than-minimal-planning and abuse-of-trust.