Presumed vindictiveness of increased sentence imposed by federal judge requires do-over, 4th Circuit says
A federal judge who increased a sentence of probation by six years after a drug defendant’s successful sentencing appeal will have to try again, a federal appeals court has ruled. (Image from Shutterstock)
A federal judge who increased a sentence of probation by six years after a drug defendant’s successful sentencing appeal will have to try again, a federal appeals court has ruled.
Senior U.S. District Judge John A. Gibney Jr. of the Eastern District of Virginia did not adequately explain the harsher sentence for defendant David Hyun Chang, the 4th U.S. Circuit Court of Appeals at Richmond, Virginia, ruled Nov. 20.
Law360 has coverage.
Chang had argued that the increased sentence triggered a “presumption of vindictiveness” that could not be overcome, which amounted to a violation of the due process clause. The 4th Circuit agreed.
Gibney had at first sentenced Chang to 72 months in prison and four years of supervised release. After Chang successfully argued appeal that the judge erred in applying a safety valve for cooperation, Gibney resentenced him to 69 months in prison and 10 years of supervised release.
Gibney is an appointee of former President Barack Obama.
The 4th Circuit agreed with Chang that the new sentence was harsher than the first.
“It is apparent that comparing terms of incarceration and supervised release likens clementines to kumquats and likely draws on subjective choice,” the appeals court said in an opinion by Judge Paul Niemeyer, an appointee of former President George H.W. Bush.
“But in this case, because the district court reduced Chang’s term of incarceration by only three months and increased his term of supervised release by six years, we accept Chang’s claim that his second sentence was indeed harsher than his first. The government does not dispute that conclusion, and we would expect that most, if not all, reasonable defendants would elect to serve an additional three months’ imprisonment to receive a reduction of six years from their term of supervised release,” the appeals court said.
At the resentencing, Gibney said Chang had apparently made a “leap into a criminal lifestyle” that appeared to be “wholehearted.”
Although Gibney had conducted a “fulsome” resentencing hearing, considering the full range of circumstances, “there was no objective change in the case’s posture or Chang’s circumstances to justify the increased sentence, which supports Chang’s claim of presumed vindictiveness,” Niemeyer wrote.
Niemeyer’s opinion was joined in full by Judge Allison Jones Rushing, an appointee of President-elect Donald Trump during his first term in office.
In a partial dissent, Judge Stephanie D. Thacker argued that a new judge should sentence Chang.
“To conclude [Chang] met the rebuttable presumption of vindictiveness, but then turn around and assign the resentencing on the basis of that presumed vindictiveness to the same district court judge defies logic,” wrote Thacker, an Obama appointee.
The majority said there was no need for a new judge.
“We have found nothing in the court’s comments or conduct that suggests judicial bias, partiality or some other reason for disqualification,” Niemeyer wrote.
