Shorter Term of Imprisonment With Significantly Longer Term of Supervised Release Is Presumptively Vindictive

US v. Chang: Chang and Campbell were convicted of conspiracy to distribute cocaine. Campbell was sentenced to 72 months in prison, plus a four-year term of supervised release. Chang, sentenced later, received the same sentence. His sentence was vacated, however, because the district court had erred in concluding he wasn’t eligible for safety valve relief. At resentencing, the district court focused on what it called Chang’s “leap into a criminal lifestyle” and ultimately imposed a 69-month term of imprisonment – a slight reduction from the original, but above the now applicable 37-46 month Guideline range – and a ten-year term of supervised release.

On appeal, the Fourth Circuit vacated Chang’s sentence and remanded for another resentencing. Chang’s primary argument was that his sentence was vindictive and he was punished as the result of his successful initial appeal. The court agreed that Chang’s sentence was “harsher than his first,” even though it involved a lesser term of imprisonment. While “courts cannot weigh terms of incarceration and supervised release with any mathematical certainty,” with the supervised release term more than doubled this was not a particularly close case. The court then went on to conclude that the district court did not adequately explain its harsher sentence, noting that what the district court did rely on imposing the second sentence was information available to it during the initial sentencing. In other words, there was not new information upon which the district court could base a decision to impose a harsher sentence. Chang’s sentence had to be vacated, even under plain error review (as Change did not object to the harsher sentence when imposed).