July 23, 2019

Tenth Circuit: District Court Should Have Conducted De Novo Resentencing as the Scope of the Proceeding on Remand Was Not Limited

The Tenth Circuit Court of Appeals issued its opinion in United States v. West on Tuesday, May 17, 2011.

The Tenth Circuit affirmed in part and remanded the district court’s decision. Petitioner appeals from a remand sentence in which the district court made factual findings concerning three sentence enhancements. Petitioner challenges whether a prior felony conviction for failure to stop constitutes a violent felony under the Armed Career Criminal Act (ACCA) and the restitution award. Petitioner argues that while Supreme Court precedent has been set, a recently argued case before the Supreme Court, Sykes v. United States, 598 F.3d 334 (7th Cir. 2010), cert. granted, 79 U.S.L.W. 3194 (U.S. Sept. 28, 2010) (No. 09-11311), could prove to be an intervening contrary decision.

However, as a disposition in that case has not yet been reached, the law of the case for Petitioner’s appeal remains unchanged; if the Supreme Court issues an opinion favorable to Petitioner within the ninety-day window, Petitioner can file a petition for certiorari to the Supreme Court or, alternatively, he can seek a precautionary petition for certiorari arguing the Sykes issue.

As to the sentencing review, the Court determined that the district court erred by following the waiver approach, in which the restitution challenge would lie outside the grounds of the remand. The Tenth Circuit default, however, is de novo resentencing. As such, “to the extent that the district court determined that it should conduct a new sentencing proceeding, [the Court] did not limit the scope of that proceeding,” and the district court erred in determining that it lacked the authority to reconsider the restitution obligation; the district court had discretion to consider the issue.

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