Published on:

Resentencing after remand from the U.S. Supreme Court was correct

In U. S. v Fowler the defendant was convicted of under the federal witness tampering statute for murdering a police officer with the intent of preventing him from communicating information about a federal criminal offense to a federal law enforcement officer. He was also charged in count two with using a firearm during a federal crime of violence, specifically a conspiracy to commit a robbery in the conspiracy to commit bank robbery and in doing so by murdering officer police officer following. Following a trial Fowler was found guilty on both counts is presentence investigation report calculated is offense level for count one the witness tampering at 46 and with his criminal history category of six he faced a recommended sentencing guideline of life in prison. For the gun possession the presentence investigation report recommended the 10 year mandatory minimum sentence. He was sentenced to life imprisonment for count one in eight consecutive term of 10 years for count two.

Fowler appealed his conviction for witness tampering arguing that the evidence was insufficient to show the officer would likely have communicated with a federal official. The conviction was affirmed by the 11th circuit, but the U.S. Supreme Court reversed, holding that the evidence was insufficient for the conviction under the witness tampering statute. On remand, the district court vacated the sentence and decided it would re-sentence the defendant and count two. The district would announced that it would not have given someone 810 year sentence on a murder with a firearm charge standing alone. After the presentence report calculated the defendant’s guideline range it found the guideline range to be life imprisonment. The court imposed a life sentence.

On appeal, the defendant Fowler argued the district court had no authority to re-sentence him on the remaining count of possession of a firearm during the commission of a federal crime, but instead was required to let the 10 year sentence stand. And he argued that the original sentence was not a “sentencing package” and the firearm count was not interdependent with the witness tampering count. He argued that the two counts were not put together under the sentencing guidelines and that the sentencing court should not impose any sentence greater than the ten-year term originally imposed.

The court rejected this argument and found that in a multi-count case, the when the case is remanded, the district court has the authority to fully revisit the sentencing and may look at the entire and facts of the case of for the re-sentencing. The court held that the inter dependence requirement for re-sentencing was only applicable to unbundling decisions in 2255 cases. Here the sentence was part of multi-count package that may be revisited to ensure the overall sentence on the surviving counts is consistent with the court’s intent.

The court also rejected Fowler’s position that his life sentence violated due process rights because it was imposed as a punishment for his Appellate reversal. The 11th circuit rejected this argument finding the sentence imposed was no more severe than the original sentence and therefore was not the product of vindictiveness.