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October 30, 2017
  United States v. Ventura - Fourth Circuit
When More Is Not More: Fourth Circuit Upholds Resentencing that Increases Per Count Punishment But Equals Original Sentence

Areas of Law: Criminal, Sentencing

Issue Presented: Whether the District Court's re-sentence, which was equal to Petitioner's original sentence, contravened the Fourth Circuit's mandate, was vindictive, and was unreasonable.

Brief Summary: German de Jesus Ventura was found guilty of seven offenses, and sentenced to 420 months in prison. Ventura appealed, and the Fourth Circuit vacated Ventura's conviction of Count Seven. On remand, the District Court resentenced Ventura to 420 months. Ventura appealed. The United States Court of Appeals for the Fourth Circuit affirmed the District Court's resentence. In affirming, the court explained that the newly imposed sentence complied with its mandate to the District Court. Additionally, Petitioner's resentence was not larger than Petitioner's initial sentence, so there was no presumption of vindictiveness. Lastly, the sentence was reasonable.

Extended Summary: German de Jesus Ventura operated a chain of brothels in Annapolis, Maryland. A jury found Ventura guilty of seven sex trafficking and related offenses, and Ventura was sentenced to 420 months by the United States District Court for the District of Maryland. Ventura appealed. The United States Court of Appeals for the Fourth Circuit concluded that Ventura should have been acquitted of Count Seven, possession of a firearm in furtherance of a crime of violence. Accordingly, the Fourth Circuit remanded the case for the District Court to enter a judgment of acquittal and to resentence Ventura.

At the resentencing hearing, the District Court entered judgment of acquittal on Count Seven and found Ventura's offense level to fall within an advisory sentencing guideline range of 360 months to life. The District Court considered trial testimony about Ventura's violent behavior and firearm possession, and it alluded to a Government letter indicating Ventura had received five disciplinary actions while in custody. Ultimately, the District Court resentenced Ventura to 420 months. Ventura appealed his resentence to the Fourth Circuit.

Petitioner argued that during resentencing, his initial 420-month sentence should have simply been reduced by the number of months initially corresponding to Count Seven. By instead recalculating the sentences to be imposed for the six non-vacated convictions, Petitioner argued, the District Court's resentence contravened the Fourth Circuit's mandate. The Fourth Circuit disagreed.

The Fourth Circuit first reaffirmed its embrace of the "sentencing package" doctrine. This doctrine renders an entire sentence void after a reviewing court has vacated any portion of a sentence. Moreover, the Fourth Circuit's initial mandate left room for the District Court to recalculate Petitioner's sentence for the six non-vacated convictions. Accordingly, the Fourth Circuit concluded that the District Court did not exceed its mandate.

Additionally, Petitioner argued that the District Court was presumptively vindictive because it effectively increased his sentence. Petitioner contended that though his total sentence remained the same, under the count-by-count approach (followed by two sister circuits), the District Court had increased the sentence imposed for each of his six non-vacated convictions. The Fourth Circuit, however, reaffirmed that it stands with the majority of its sister circuits and employs the aggregate package approach. Under the aggregate package approach, Petitioner's new sentence was not greater than his original sentence - it was the same. Thus, Petitioner failed to establish a presumption of vindictiveness because his aggregate sentence did not increase.

Lastly, Petitioner argued that his resentence was not reasonable. Petitioner contended that by considering testimony of Petitioner's violence and firearm possession, the District Court invaded the province of the jury. Petitioner also challenged the District Court's consideration of his conduct while incarcerated. Considering procedural reasonableness, the Fourth Circuit looked to Supreme Court precedent permitting sentencing courts to consider factual matters not determined by a jury; and circuit precedent, permitting sentencing courts to consider conduct despite an acquittal if proven by a preponderance of the evidence. The Fourth Circuit was satisfied that Count Seven's underpinnings were proven by a preponderance of the evidence. Additionally, it explained that the District Court reasonably considered Petitioner's conduct during incarceration, which had been proven by a preponderance of the evidence. Then, considering substantive reasonableness, the Fourth Circuit concluded that the resentence was reasonably within the applicable advisory guideline range. Accordingly, the Fourth Circuit concluded that the resentencing was reasonable and affirmed the District Court's decision.

To read the full opinion, clickhttp://www.ca4.uscourts.gov/Op...4808.P.pdf"> here.[/L]

Panel: Chief Judge Gregory, and Judges King and Keenan

Argument Date: 05/09/2017

Date of Issued Opinion: 07/18/2017

Docket Number: No. 15-4808

Decided: Affirmed by published opinion

Case Alert Author: Ashley Fellona, Univ. of Maryland Carey School of Law

Counsel: ARGUED: Erek Lawrence Barron, WHITEFORD, TAYLOR & PRESTON, LLP, Bethesda, Maryland, for Appellant. Rachel Miller Yasser, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF: Rod J. Rosenstein, United States Attorney, P. Michael Cunningham, Assistant United States Attorney, Melanie Goldberg, Student Law Clerk, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.

Author of Opinion: Judge King

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 10/30/2017 01:54 PM     4th Circuit  

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