Thursday, July 01, 2021

No Ex Post Facto or Due Process Issues With Upward Variance at Resentencing

US v. AbedIn the 1990s, Abed played a “central role” in a drug operation that included (among other things) the use of arson as a means of intimidation. He was convicted, at trial, on numerous counts, including use of a destructive device (a Molotov cocktail) during a crime of violence under 18 USC 924(c). He faced a (then mandatory) Guideline range of 188 to 235 months in prison, plus a consecutive 360-month term on the 924(c) conviction. The district court imposed a sentence of 570 months. After Johnson in 2015, Abed filed a 2255 motion arguing that his 924(c) conviction was no longer valid. The district court granted the motion. Rather than accepting Abed’s request for a sentence of time served, the district court held a resentencing at which it imposed a sentence of 360 months in prison, which would leave him “less than three years” left to serve.

The Fourth Circuit affirmed Abed’s sentence, turning away several of his argument. First, it rejected Abed’s argument that his sentence violated the Ex Post Facto clause, in that at the time of his initial sentencing the highest sentence he could have received on the non-924(c) counts was 235 months under the then mandatory Guidelines. The court concluded that there was no Ex Post Facto issue, as Booker had made itself retroactive to any case on direct review, even those committed while the Guidelines were mandatory. Second, it rejected Abed’s argument that his sentence violated the Due Process Clause by “effectively punishing” him for successfully challenging his 924(c) conviction. The court held that any vindictiveness-based challenge failed as Abed’s new sentence was lower than his old one. Finally, the court rejected Abed’s argument that the law of the case doctrine had been violated because the district court had refused to upwardly depart at the initial sentencing hearing. The court noted that the sentence imposed at resentencing was a variance, not a departure, and based on different considerations. The court also concluded that Abed’s sentence was procedurally reasonable.

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