In U.S. v. Martinez, No. 08-13846 (May 19, 2010), the Court, denying a motion for rehearing or rehearing en banc, the Court rejected the argument that its prior decision in U.S. v. Canty foreclosed the Court of Appeals, when it vacated a sentencing enhancement based on the defendant’s leadership role, to allow the government at resentencing to present new evidence in order to establish that the leadership enhancement was warranted.
The Court noted its broad appellate power under 28 U.S.C. § 2106. The Court further noted its precedent which in some cases when it reversed a sentence called for a de novo resentencing, while in other cases (as in Canty) providing for narrower relief. Thus, while in Canty it was appropriate to deny the government a “second bite at the battle” on resentencing because the government at the first sentencing had disclaimed reliance on other evidence, in Martinez’ cases, where defense counsel had not clearly objected to the leadership enhancement, it was fair on resentencing to allow the government to present new evidence regarding the defendant’s leadership role.
