US v. Alston: Alston was convicted of possession with intent to distribute more than 5 grams of crack and maintaining a dwelling used to sell drugs. The Government filed an 851 information based on Alston's prior convictions, producing a 10-years mandatory minimum sentence. Alston's Guideline range was 120 to 150 months in prison. He was sentenced to 150 months, after the district court rejected a Government motion for an upward departure due to Alston's criminal history. The Fourth Circuit vacated the sentence in light of Simmons and remanded. At resentencing, Alston's Guideline range was 70 to 87 months. Second time around the district court granted the Government's motion and departed upward, imposing a 120-month sentence.
The Fourth Circuit affirmed Alston's second sentence. It rejected Alston's argument that the mandate of the first appeal prohibited the Government from renewing its departure request (it did not cross appeal the initial denial), noting that the sentence was vacated and remanded for resentencing de novo. Given the "much altered Guidelines range landscape" at resentencing, and its duty to follow 3553(a), the district court was free to consider the Government's request. The court also found the district court's failure to retroactively apply the Fair Sentencing Act harmless and that Alston's sentence was substantively reasonable.