United States v. DeGeorge

United States Court of Appeals for the Ninth Circuit · 2004 · Evidence

EvidenceSentencingRestitutionAllocutionHybrid representationBookerDue ProcessEx Post Facto

Facts

DeGeorge was resentenced after a prior appeal in which the Ninth Circuit had affirmed his conviction and remanded for resentencing. On remand, the prosecution sought to recapture a two-level obstruction-of-justice adjustment that had previously been reversed, but the district court declined to apply it. The district court imposed a sentence above the advisory Sentencing Guidelines range after discussing the 18 U.S.C. § 3553(a) factors, and it also ordered restitution that included amounts DeGeorge challenged. At the resentencing hearing, the court allowed DeGeorge to address the court before sentencing and denied his request to act pro se as co-counsel while also retaining private counsel.

Issue

Whether the district court committed reversible error at resentencing by allegedly relying on false prosecutorial assertions, applying Booker, imposing an above-Guidelines sentence, including challenged expenses in restitution and offense-level calculations, denying allocution, or refusing hybrid representation. Also, whether previously decided restitution-related issues could be relitigated on this appeal.

Rule

A resentencing court's above-Guidelines sentence is reviewed for reasonableness and is upheld when the court explicitly considers and explains the 18 U.S.C. § 3553(a) factors. Issues decided in a prior appeal are foreclosed by the law of the case doctrine. A defendant's right to allocution is satisfied when the court allows him to address the court before sentence is imposed under Rule 32(i)(4)(A)(ii). Denial of hybrid representation is reviewed for abuse of discretion.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Phoenix, a federal judge resentenced Omar Velez after remand. The advisory range was 24 to 30 months, but the judge imposed 42 months after discussing deterrence, the seriousness of the fraud, protection of the public, and the defendant's repeated deception during the scheme, and then explained why the Guidelines range understated those concerns.

On appeal, Omar argues only that the sentence was improper because it exceeded the advisory Guidelines range. How should the appellate court most likely rule?

Explanation. The claim is treated as a challenge to the reasonableness of the sentence. Under the majority opinion, an above-Guidelines sentence is upheld when the district court explicitly considers and extensively discusses the § 3553(a) factors and fully explains the variance.