In U.S. v. Amedeo, No. 05-11806 (May 24, 2007), the Court affirmed a 120-month sentence imposed on resentencing, after an original 216-month sentence was vacated on a first appeal.
At his original sentencing, pre-Booker, the district court imposed upward departures based on findings that Amedeo committed the drug trafficking offense for which he was convicted in order to facilitate a sexual assault, that this resulted in the death of the person (infected by hepatitis C), and that Amedeo distributed drugs to multiple minors. On appeal, the Eleventh Circuit vacated the departures because they were not based on "relevant conduct."
At resentencing, post-Booker, the Court imposed a 120-month sentence – above the Guideline range of 37-46 months, citing the seriousness of the offense.
The Court rejected the argument that the sentencing judge should have recused himself. The Court noted that the judge’s opinion of Amedeo, formed by prior proceedings, was not the type of "personal" or "extrajudicial" bias that can support recusal.
The Court also rejected the argument that the law of the case doctrine precluded the district court at resentencing from relying on factors that the Court had found invalid on appeal. The Court noted that the law of the case doctrine does not apply when a change in controlling law occurs. Here, Booker constituted a change in controlling law. While the district court could no longer consider certain non-relevant conduct as the basis for a departure, it could consider this conduct as the basis for a variance under the Guidelines pursuant to 18 U.S.C. § 3553(a). [Note: this holding means that the scope of conduct which a district court can take into account post-Booker is even broader than the Guidelines concept of "relevant conduct"].
The Court further rejected the argument that 18 U.S.C. § 3742(g)(2), which prohibits sentencing courts from considering new grounds for a sentence on resentencing, precluded the district court’s reliance on new factors at resentencing. The Court noted that this statute took effect (shortly) after Amedeo’s original sentencing, was not retroactively applicable, and therefore could not be relied on by Amedeo.
The Court rejected the argument that the retroactive application of Booker violated the Ex Post Facto doctrine, noting its prior precedent so holding, and that the 40-year statutory maximum provided Amedeo sufficient warning of the penalty for his crime.
Finally, the Court rejected Amedeo’s reasonableness challenge to his sentence. The Court recognized that in at least one respect, the district court imposed an upward variance based on a factor (abuse of the attorney-client relationship) that had already served as the basis for a Guideline specific offense enhancement under USSG § 3B1.3. But based on the "extraordinary" circumstances of the case (presumably, the death of a victim) it was "reasonable" for the sentencing court to consider under § 3553(a) an aspect of Amedeo’s conduct that it had already considered in imposing an enhancement. [Note: the Court’s finding of "extraordinary" circumstances to justify the variance suggests that such "double counting" would only be valid if a departure-like justification for the sentence enhancement existed].
