...you just might get it (and you might not like it)!
The 5th Circuit recently published a case (U.S. v. Rodriguez), in which a defendant pled guilty to conspiracy, making false statements in the acquisition of firearms, selling firearms to prohibited persons, and selling firearms without a license in exchange for an agreement by the government not to seek any offense-level increases at sentencing.
The presentence investigation report (PSR), recommended a sentencing range of between 51 and 63 months (due to a base offense level of 18 and a four-level aggravating role increase). Rodriguez objected to the increase and the government conversely supported the increase (thereby breaching its plea agreement not to seek an offense-level increase at sentencing). The district judge ultimately rejected parts of the PSR, which resulted in an advisory guidelines sentencing range of 37 to 46 months. The defendant was sentenced to 37 months.
Rodriguez appealed based on the government's breach of his plea agreement. Upon the government's concession that it had indeed breached the agreement, the 5th Circuit remanded the case for resentencing and ordered that the sentencing be conducted by a different judge because of the government's breach. (Once again, be careful what you wish for!)
At resentencing, Rodriguez renewed his prior objections to the PSR; they were denied. Based upon his independent analysis, the second judge concluded, contrary to the original judge’s ruling, that the advisory guidelines sentencing range was 46 to 57 months. Rodriguez was sentenced to 47 months - 9 months more than his original sentence!!
Rodriguez challenged the greater sentence on appeal, claiming that it was either vindictive or apparently vindictive - he lost.
After reading the opinion, I cannot criticize the legal reasoning of the Court. They got it right. But, as a third-grader (and many criminal defense attorneys) would say "That's Not Fair!!!"
