U.S. v. Buitron

Full title: UNITED STATES OF AMERICA v. RICARDO BUITRON, Defendant

Court: United States District Court, S.D. Alabama

Date published: Oct 12, 2005

Criminal No. 04-00072-WS (S.D. Ala. Oct. 12, 2005)

Opinion

Criminal No. 04-00072-WS.

October 12, 2005

ORDER

WILLIAM STEELE, District Judge

This matter is before the Court pursuant to the Eleventh Circuit's order "vacat[ing] Buitron's sentence and remand[ing] his case to the district court for resentencing" in light of United States v. Booker, 125 S. Ct. 738 (2005). (Doc. 118 at 10). The defendant is ordered to file and serve, on or before October 21, 2005, a statement of position as to whether hearing or argument is required prior to re-sentencing, given the Eleventh Circuit's indication that, following remand for statutory Booker error, a defendant may present only evidence that was not relevant under a mandatory guidelines regime.¹ The defendant's statement of position shall identify the evidence, if any, he desires to offer for purposes of re-sentencing.

1 United States v. Rolle, 2005 WL 1715747 at *1 n. 1 (11^th Cir. 2005) ("Because we vacate appellant's sentences and remand the case for a new sentencing hearing — in which the court may consider evidence and arguments deemed irrelevant under the pre- Booker sentencing scheme — we do not address" his challenge to the district court's guidelines calculations).
This pronouncement is consistent with the rule that, "upon a resentencing occasioned by a remand, unless the court of appeals expressly directs otherwise, the district court may consider only such new arguments or new facts as are made newly relevant by the court of appeals' decision." United States v. Whren, 111 F.3d 960 (D.C. Cir. 1997); accord United States v. Quintieri, 306 F.3d 1217, 1228 n. 6 (2^nd Cir. 2002) (following the First, Fifth, Seventh and D.C. Circuits).

While a defendant apparently has the right to be present and to allocute when he is re-sentenced following a vacation of his sentence in its entirety,² both rights can be waived.³ The defendant is ordered to file and serve, on or before October 21, 2005, a statement of position as to whether he waives any right to be present or to allocute, given the disruption of his living situation that the exercise of such rights would entail,⁴ the ability of other witnesses to offer permitted evidence, and other factors. Defense counsel is instructed to confer with the defendant concerning these matters before submitting his statement of position.

2 See Fed.R.Crim.P. 43(a)(3) (defendant's presence required at sentencing); id. 32(i)(4)(A) (defendant must be provided the opportunity to speak "[b]efore imposing sentence"); United States v. Taylor, 11 F.3d 149, 152 (11^th Cir. 1994) (resentencing following vacation in the entirety constitutes the imposition of sentence for purposes of Rules 32 and 43).

3 See United States v. Rodriguez-Velasquez, 132 F.3d 698, 699 (11^th Cir. 1998); Fed.R.Crim.P. 43(c)(1)(B).

4 Among any other relevant considerations, presence at resentencing would remove the defendant from his current place of incarceration with no guarantee of return to that facility or his present cell; would interrupt his participation in any drug treatment or other rehabilitation program, completion of which may be required in order to obtain a reduction in his sentence; and would require interim housing at various local jail facilities.

The government is ordered to file and serve, on or before October 28, 2005, a statement of position identifying any evidence it intends to present for purposes of re-sentencing and demonstrating why the evidence has been made newly relevant by Booker.

DONE and ORDERED.