Issues a lower court may consider on remand

US v. Susi:  This appeal challenges the sentence imposed following a remand for re-sentencing. Susi raises three issues here: 1) the district court did not recalculate the Sentencing Guidelines as part of the re-sentencing; 2) the re-sentencing court imposed sentence based on the impermissible factor that Susi exercised his right to trial; and 3) the sentence was procedurally and substantively unreasonable because the court did not provide an adequate explanation on the record for the sentence. The Fourth Circuit affirmed the sentence.

The main issue in this appeal is what a lower court may consider on remand: is the defendant entitled to a de novo hearing at re-sentencing, does the re-sentencing court consider the entire sentence anew, including any objections to the Guidelines range? Or is the re-sentencing limited in correcting the error in the original sentence? The Fourth Circuit considers here the "mandate rule," wherein the re-sentencing court is bound to carry out the mandate of the superior court, and may not reconsider issues that mandate laid to rest, referring to its earlier case, United States v. Bell, for its explanation of the "law of the case" doctrine, of which the mandate rule is a "specific application." Under this doctrine, the dictates of the higher court forecloses re-litigation of issues decided by the lower court but foregone on appeal or otherwise waived.

The sentencing error identified by the Fourth Circuit when it vacated Susi’s sentence originally, dealt with the district court’s consideration of factors outside the scope of the record during the § 3553(a) analysis and calculating the restitution ordered, so the error below, according to the Fourth Circuit, in no way impacted the calculation of his Guidelines range. Since the guidelines range was not objected to in the original appeal by Susi, it was unnecessary and duplicative to recalculate the Guidelines in order to address the error that caused the remand.

Additionally, Susi’s second argument that he was penalized merely by exercising his constitutional right to a trial (he received a higher sentence than his co-conspirators who took plea deals to resolve the charges against them) was undercut by the fact that he received a lower sentence on remand of 160 months than he originally received, 180 months. The Fourth Circuit has previously stated in United States v. Perry, that in order to prove improper or vindictive motive by the government against someone exercising a constitutional right, a presumption of improper vindictive motion must arise, a presumption only warranted in cases in which a reasonable likelihood of vindictiveness exists, e.g. when a defendant succeeds in attacking his sentence on appeal, and then receives a higher sentence on re-trial. That did not happen here, so this appeal issued failed.

Finally, in discussing Susi’s third appeal issue, the Fourth Circuit held for the first time that a below-Guidelines sentence is entitled to a presumption of reasonableness, when a defendant challenges the length of the below-Guidelines sentence as being substantively unreasonable. Also, this presumption would not apply where a defendant challenged the substantive reasonableness on other grounds, nor would this presumption apply when the government appeals a district court’s sentence as substantively unreasonable.