United States v. Joseph Aberant ( 2021 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-4786
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JOSEPH KELVIN ABERANT,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. Terrence W. Boyle, District Judge. (5:17-cr-00025-BO-1)
Argued: October 28, 2021 Decided: November 18, 2021
Before MOTZ, KING, and HARRIS, Circuit Judges.
Vacated and remanded for further proceedings consistent with this opinion by unpublished
per curiam opinion.
ARGUED: Richard Croutharmel, Raleigh, North Carolina, for Appellant. Lucy Partain
Brown, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellee. ON BRIEF: Robert J. Higdon, Jr., United States Attorney, Jennifer P. May-
Parker, Assistant United States Attorney, David A. Bragdon, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
In 2017, Joseph Kelvin Aberant pled guilty to possession of a firearm and
ammunition as a convicted felon and making a false and fictitious statement to a firearms
dealer during acquisition of a firearm. The district court sentenced him to 200 months
imprisonment, a downward variance from the 262 to 327 months guideline range. Aberant
appealed and this court vacated that sentence as procedurally unreasonable because the
district court failed to expressly address Aberant’s motion for a downward variance or
provide any explanation for the selected sentence. See United States v. Aberant, 741 F.
App'x 905, 910 (4th Cir. 2018). On remand, the district court increased Aberant’s sentence
from 200 to 262 months. Aberant appeals, arguing that this increased sentence triggers the
presumption of vindictiveness, which went unrebutted because the district court offered no
valid reasons for imposing a harsher sentence on remand. We agree. For the reasons that
follow, we vacate and remand for resentencing before another district judge.
I.
On remand, in 2019, the district court held a resentencing hearing for Aberant,
relying on the same PSR at that hearing that the prosecution used at the original sentencing.
The government read a letter from Aberant’s daughter to the court, in which she said she
“couldn’t find the courage or the strength” to speak to the impact of Aberant’s crime on
her and her family at the original sentencing. In the letter, she attested to the ongoing
trauma that Aberant’s violence toward her and her boyfriend has caused. She also
expressed fear as to what would happen to her family upon Aberant’s eventual release from
prison.
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The government requested that the district court give Aberant the same sentence of
200 months on remand. Aberant asked for a downward variance from that sentence. The
district court rejected both arguments and sentenced Aberant to 262 months. The court
stated that it did so because:
In reviewing [Aberant’s] criminal history, it appears that he’s a violent and
dangerous person, that he committed acts of violence in the past, as his criminal
record shows, aggravated battery with a deadly weapon, battery, escape from jail. I
think a guideline sentence is appropriate in this case.
The government, after this minimal explanation, prompted the district court to provide
additional information for increasing the sentence on remand:
Your Honor, in light of your decision to impose a sentence greater than you did at
the previous sentence, may I -- would it be fair to say that you chose to do that in
part because of the defendant’s allocution, his continued failure to appreciate the
wrongfulness and harm his actions have caused?
The district court expressly rejected that suggestion by stating:
No. I would say I did it because I carefully reviewed and taken into account and
then guided by the panel opinion from the Fourth Circuit instructing me to explain
the reasons for my sentence and that I have -- the sentence previously imposed was
vacated, and having reviewed the presentence report, reviewed the 3553(a) factors,
I now exercise my sentencing judgment to impose a guideline sentence rather than
a downward variance. That’s complete, that’s my thought process and they can
examine it, see if it’s adequate, see if it’s inadequate, or give me further instructions
. . . You can appeal that to the Fourth Circuit.
In its written statement of reasons, the district court reiterated this same rationale for
imposing the new sentence:
The court imposed a sentence that was within the advisory guideline range after
reviewing the Presentence Report and the sentencing factors identified at 18 U.S.C.
§ 3553(a). The court noted the violent nature of the instant offense and the
defendant’s history of violent prior convictions, finding the defendant to be a
dangerous person. The court imposed a sentence at the low-end of the guideline
range.
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II.
Due process requires that courts protect a defendant’s right to appeal by ensuring
that “vindictiveness against a defendant for having successfully attacked his first
conviction [] play[s] no part in the sentence he receives” on resentencing. United States v.
Ventura, 864 F.3d 301, 310 (4th Cir. 2017) (quoting North Carolina v. Pearce, 395 U.S.
711, 725 (1969), overruled on other grounds by Alabama v. Smith, 490 U.S. 794 (1989)).
The presumption safeguards a defendant’s constitutional right to appeal. “[T]he first step
in determining whether a sentence violates Pearce and its progeny is determining whether
the new sentence is actually harsher than that imposed prior to the successful appeal. And
if we so conclude, we will then consider whether the defendant has demonstrated actual
vindictiveness or a reasonable likelihood of actual vindictiveness.” United States v. Abed,
3 F.4th 104, 114 (4th Cir. 2021) (internal quotation marks omitted).
The district court increased Aberant’s sentence by more than five years on remand.
Thus, no one disputes that the new sentence is “actually harsher,” than his previous
sentence. When a sentencing court increases a sentence on remand, the reasons for doing
so must affirmatively appear in the record. If they do not, a presumption that the district
court imposed a greater sentence for a vindictive purpose applies. See Alabama v. Smith,
490 U.S. 794, 798-99 (1989). “[A]ny unexplained change in the sentence is . . . subject to
a presumption of vindictiveness.” Id. at 802.
The government can rebut the presumption of vindictiveness by pointing to
objective information in the record that justifies the increased sentence. For example, in
Alabama v. Smith, the Supreme Court found dispositive that the trial court imposed a
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harsher sentence on remand based “on evidence presented at trial, of which it had been
unaware at the time it imposed [the original] sentence on the guilty plea.” 490 U.S. at 797.
The Court contrasted the new information relied on by the trial court in Smith with a
situation where the same “sentencing judge [] presides at both trials [and] can be expected
to operate in the context of roughly the same sentencing considerations after the second
trial as he does after the first; any unexplained change in the sentence is therefore subject
to a presumption of vindictiveness.” Id. at 802.
Here, the same judge presided at both sentencing hearings and relied on the same
PSR and on no new information that he could not have considered at the original
sentencing. These circumstances give rise to a reasonable likelihood of actual
vindictiveness and thus, the presumption applies.
III.
Accordingly, we turn to whether the government has successfully rebutted the
presumption of vindictiveness in this case. The district court did not identify affirmative
information to justify an increased sentence on remand even after the government offered
reasons the district court could have relied on to do so. The court referenced Aberant’s
criminal history in general terms, but the district court knew of that history at the time of
the original sentencing.
The district court also mentioned this court’s opinion vacating the original sentence
to explain why it imposed an increased sentence on remand. However, that opinion does
not dictate or support a harsher sentence. We merely held that the district court had failed
to “expressly address the motion for a downward variance and offered no explanation for
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the selected sentence” and we remanded for resentencing on that basis. Unlike United
States v. Williams, where we instructed the district court to resentence in accordance with
a new Supreme Court decision on remand, no change in law occurred here to justify an
increased sentence. See 444 F.3d 250, 254-55 (2006).
On appeal, the government offers Aberant’s daughter’s allocution (not Aberant’s
own allocution) as a new reason for the district court to increase the sentence on remand.
But the government never raised this argument to the district court. And the district court
never mentioned the allocution as a reason for the selected sentence. Indeed, the district
court said that the minimal explanation it provided for the new sentence on remand was
“complete, that’s my thought process and they can examine it, see if it’s adequate, see if
it’s inadequate, or give me further instructions . . . You can appeal that to the Fourth
Circuit.”
The government cannot rely on a possible rationale in the record that could perhaps
have justified an increased sentence when the district court expressly stated that it did not
rely on those reasons in choosing a sentence. 1 “[I]t is the district court's responsibility to
verbalize [the] new information [to justify the increased sentence] in a manner that
affirmatively appears in the record and directly supports the imposition of the harsher
1
The Fifth Circuit has rejected an argument that an allocution “can be inferred as
newly discovered facts” for the purpose of justifying an increased sentence on remand to
overcome the presumption of vindictiveness. United States v. Penado-Aparicio, 969 F.3d
521, 526 (5th Cir. 2020), as revised (Aug. 13, 2020); United States v. Resendez-Mendez,
251 F.3d 514, 518 (5th Cir. 2001). We need not decide that issue here, given that the
district court expressly discounted reliance on any newly discovered facts.
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sentence.” United States v. Penado-Aparicio, 969 F.3d 521, 525 (5th Cir. 2020), as revised
(Aug. 13, 2020) (internal quotation marks omitted).
Because the presumption of vindictiveness applies and the government has failed to
rebut the presumption with objective information that justifies the increased sentence, we
vacate the increased sentence.
IV.
Our decision to vacate the district court’s sentence requires a remand for
resentencing. In certain situations, we have reassigned a case to a different judge on
remand:
[E]ven in the absence of established bias [and we wish to emphasize, there is no
such bias here], reassignment to a different judge on remand is appropriate in
unusual circumstances where both for the judge's sake and the appearance of justice
an assignment to a different judge is salutary and in the public interest, especially
as it minimizes even a suspicion of partiality. Specifically, we consider: (1) whether
the original judge would reasonably be expected upon remand to have substantial
difficulty in putting out of his or her mind previously expressed views or findings
determined to be erroneous or based on evidence that must be rejected, (2) whether
reassignment is advisable to preserve the appearance of justice, and (3) whether
reassignment would entail waste and duplication out of proportion to any gain in
preserving the appearance of fairness. United States v. Lentz, 383 F.3d 191, 221-22
(4th Cir. 2004) (internal quotation marks omitted); see also United States v.
Martinovich, 810 F.3d 232, 245 (4th Cir. 2016).
We have remanded this case once already for resentencing due to a lack of adequate
explanation and the absence of sufficient reasons in the record to justify the district court’s
selected sentence. 2 Given this procedural history, the case warrants remand to a different
2
See United States v. Guglielmi, 929 F.2d 1001, 1007 (4th Cir. 1991) abrogated on
other grounds by United States v. Pridgen, 64 F.3d 147, 150 n.3 (4th Cir.1995). (“The
procedural history of the instant case has left us convinced that, absent some affirmative
(Continued)
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judge for resentencing. Assignment to a different judge will serve “the public interest,
especially as it minimizes even a suspicion of partiality.” Id.V.
Accordingly, we vacate and remand for resentencing. We also direct that this case
be assigned to a different judge on remand. For the foregoing reasons, the judgment of the
district court is
VACATED AND REMANDED
FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION.
act on our part, we shall be locked in an endless cycle of remands and renewed appeals that
will move us no closer to discerning a meaningful exercise of the sentencing judge's
discretion, but will rather serve only to effect adversely the relationship of this circuit and
its district courts.”).
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