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A Federal sentencing court’s limitation on the issues that can be raised at a resentencing was affirmed

The Eleventh Circuit Court of Appeals decided that a district court can limit the issues that will be heard at a defendant’s resentencing. In U.S. v. Willis, the defendant was convicted in federal court of a felony drug trafficking offense and sentenced as a career offender because of his prior convictions. He appealed his conviction to the court of appeals in Atlanta but his conviction was affirmed. After his appeal process was complete, Willis filed a 2255 motion to vacate his conviction arguing, among other issues, that his counsel had been ineffective for failing to challenge his career offender enhancement. The government agreed that he was not eligible for the enhancement, but it did not agree to the several other issues raised in the 2255 motion. The sentencing court denied the 2255 motion except for the career offender issue and directed the probation office to prepare a new presentence investigation report reflecting the fact that Willis was not a career offender. Willis filed objections to certain enhancements the report. These same objections had been raised prior to the first sentencing hearing and had already been denied.

The Probation Officer responded to those objections and the judge set the sentencing for two days later. The judge found he was not a career offender, but refused to continue the sentencing, refused to hear any arguments challenging the guidelines range, and refused to grant the governments motion for downward departure for cooperating.

After some effort, the appellate court discerned the issues Willis was appealing. Willis’ brief was apparently less than adequate, judging from the unflattering comments in this opinion. As a result of the failure to raise an appeal from the other 2255 issues, the court found that Willis waived his right to challenge the adverse 2255 rulings. The appellate court decided that the district court did not err by refusing to allow Willis to argue any of his objections, except for the career offender issue.

The other issue on appeal was Willis’s claim that under ยง3552(d) his federal criminal sentencing hearing should have been set no less than 10 days from the date his attorney received the Probation Officer’s response to his objections to the Presentence Investigation Report. An attorney for a defendant convicted of a crime in Miami as in any other area can object to the inaccuracies in this report. The court noted that Rule 32(g) requires a 7 day period between the Probation Officer’s response and the sentencing date. Though it was a technical error, it was harmless because the PSR was substantially the same as the version in his first sentencing and the defendant was not prejudiced.

Finally the court reviewed Willis’s challenge that the sentence was substantively unreasonable. Here the district court denied the government’s motion for downward departure for substantial assistance cooperation. This was the reason given by the sentencing court for denying the reduction. “After reviewing Willis’s criminal history, the court determined that Willis was a lifelong major drug dealer who had been very successful at using the system by saying I will provide substantial assistance every time he was caught in the act.” The judge imposed 151 months which was the bottom of the guideline range. The sentencing judge clearly understood it had the power to depart and the appellate court stated that it lacked jurisdiction to consider the sentencing court’s ruling.