Opinion
Case No. 18-cr-00004
07-22-2020
UNITED STATES of America, Plaintiff, v. Rene BOUCHER, Defendant.
Bradley P. Shepard, U.S. Attorney Office, Indianapolis, IN, for Plaintiff. Matthew James Baker, Bowling Green, KY, for Defendant.
Bradley P. Shepard, U.S. Attorney Office, Indianapolis, IN, for Plaintiff.
Matthew James Baker, Bowling Green, KY, for Defendant.
ORDER DENYING DEFENDANT'S MOTION TO DISMISS (ECF No. 52)
MATTHEW F. LEITMAN, UNITED STATES DISTRICT JUDGE
This case is before the Court on remand from the United States Court of Appeals for the Sixth Circuit. That court remanded "for resentencing." United States v. Boucher , 937 F.3d 702, 704 (6th Cir. 2019). Defendant Rene Boucher has filed a motion to dismiss on the ground that any resentencing would violate the Double Jeopardy Clause and/or the Due Process Clause of the Fifth Amendment because he has "already served [ ] and completed each and every aspect of the sentence imposed." (Mot., ECF No. 52, PageID.321.) For the reasons explained below, the Court DENIES Boucher's motion to dismiss. (The Court had initially set this motion for a hearing. Upon consideration of the parties’ briefs, the Court concludes that it may properly resolve this motion without a hearing. Accordingly, the Court cancels the hearing on this motion scheduled for July 27, 2020. Resentencing will still proceed on that date).
I
In 2018, Boucher assaulted United States Senator Rand Paul. The assault broke several of Senator Paul's ribs and caused a number of subsequent serious medical problems for the Senator.
Boucher pleaded guilty to one count of assaulting a member of Congress in violation of 18 U.S.C. § 351(e) pursuant to a written plea agreement. (See Plea Agmt., ECF No. 5.) As part of that agreement, Boucher waived his rights to appeal his conviction and sentence "[u]nless based on claims of ineffective assistance of counsel or prosecutorial misconduct." (Id. , PageID.13.) The Government did not waive its right to appeal Boucher's sentence.
On June 21, 2018, Boucher appeared for sentencing before United States District Judge Marianne Battani. Judge Battani determined that Boucher's sentencing range under the United States Sentencing Guidelines was 21-27 months in custody. The Government asked Judge Battani to impose a sentence of 21 months. Boucher asked Judge Battani to consider a non-custodial sentence. Judge Battani sentenced Boucher to serve 30 days in custody, to perform 100 hours of community service, to pay a $10,000 fine, and to serve one year of supervised release. (See Judgment, ECF No. 37.)
The Government timely appealed Boucher's sentence. (See Notice of Appeal, ECF No. 41.) While that appeal was pending, Boucher served his 30-day term of imprisonment, completed one year of supervised release, and completed the community-service requirement. Boucher has also paid his $10,000 fine.
On September 9, 2019, the Sixth Circuit issued a decision vacating Boucher's sentence. See Boucher , 937 F.3d at 704. The Sixth Circuit held that Boucher's sentence – which involved a substantial downward variance from the bottom of Boucher's Guidelines range – was substantively unreasonable. See id. The Sixth Circuit remanded the action "for resentencing." Id. II
Boucher now moves to dismiss on the ground that resentencing would violate the Double Jeopardy Clause and/or the Due Process Clause. (See Mot., ECF No 52.) The Court concludes that Boucher is not entitled to relief under either Clause.
A
Before turning to Boucher's constitutional arguments, the Court first addresses Boucher's suggestion in his motion that the Government is barred from seeking a new sentence because it had agreed, prior to the original sentencing, that "Boucher could argue for any sentence within the guideline range permitted by law." (Id. PageID.321.) Boucher insists that the Government "reneged on [that] agreement" when it appealed and now continues to seek a new sentence. (Id. , PageID.329.) Boucher appears to assert that because the Government purportedly broke its promise, it cannot seek a new sentence on remand. Boucher does not formally seek dismissal on this ground – his motion states that he seeks dismissal "pursuant to ... the Fifth Amendment to the United States Constitution" (id. , PageID.314) – but the Court pauses to address Boucher's contention nonetheless. The Court disagrees with Boucher's assertion that the Government reneged on a promise to him by appealing his sentence.
The Government did not agree in the Plea Agreement, in any other document, or orally not to appeal Boucher's sentence. While the Government did promise to permit Boucher to argue for any sentence within the Guidelines range, that was not a promise not to appeal a below-Guidelines sentence. As the Sixth Circuit explained when it rejected Boucher's challenge to the Government's appeal:
Boucher argues that the government promised orally not to appeal his sentence. As support, he points to a pre-plea communication from the Assistant U.S. Attorney indicating that defense counsel would be free to recommend any authorized sentence, as well as language from the presentence report that Boucher reads as an agreement not to oppose defense counsel's recommended sentence. But neither source constrains the government's right to appeal or its arguments on appeal. On top of that, the written plea agreement "supersede[s] all prior understandings, if any, whether written or oral, and cannot be modified other than in writing signed by all parties or on the record." R. 5 at 9. All of this takes us back to bedrock contract and plea agreement principles: The "determinative factor in interpreting a plea agreement is not the parties’ actual understanding of the terms of the agreement; instead, an agreement must be construed as a reasonable person would interpret its words." United States v. Moncivais , 492 F.3d 652, 663 (6th Cir. 2007). Whatever Boucher may have believed, the four corners of the plea agreement restrict his appellate rights, not the government's or anyone else's.
United States v. Boucher , 905 F.3d 479, 481 (6th Cir. 2018). Boucher is therefore not entitled to dismissal on the basis that the Government somehow breached a pre-sentencing agreement when it appealed his sentence.
B
The Court now turns to Boucher's argument that a resentencing here would violate his rights under the Double Jeopardy Clause. Boucher first contends that he "has served every bit of a perfectly legal sentence," and thus he may not be subjected to "an additional sentence for the very same offense to which he plead guilty and accepted his punishment." (Mot., ECF No. 52, PageID.327.) In support of this argument, Boucher does not cite a single case in which any federal court has ever found a Double Jeopardy violation under the circumstances present in this case. Instead, he relies primarily upon the decision of the United States Supreme Court in Ex Parte Lange , 85 U.S. 163, 18 Wall. 163, 21 L.Ed. 872 (1873). But Lange does not help Boucher.
As the Supreme Court has explained, Lange stands for the limited proposition that a district court may not impose a sentence greater than that authorized by the statute of conviction:
In Ex parte Lange , the defendant had been convicted of stealing mail bags, a federal offense punishable by either a $200 fine or a 1-year prison term. The trial court, however, sentenced Lange to a $200 fine and one year in prison. Lange paid the fine and spent five days in prison before seeking a writ of habeas corpus from the trial court. The trial judge then vacated the earlier judgment and sentenced Lange to one year's imprisonment from that date. Lange sought a writ of habeas corpus in this Court, which held that he was entitled to be released. The Court noted that Lange's fine had already passed into the Treasury and could not be returned to him. If the second sentence were enforced, Lange would therefore have paid a $200 fine and spent a year plus five days in prison. See id. , at 175. This punishment would obviously have exceeded that authorized by the legislature. Lange therefore stands for the uncontested proposition that the Double Jeopardy Clause prohibits punishment in excess of that authorized by the legislature, see United States v. DiFrancesco, 449 U.S. 117, 139, 101 S.Ct. 426, 438, 66 L.Ed.2d 328 (1980), and not for the broader rule suggested by its dictum.
Jones v. Thomas , 491 U.S. 376, 382–83, 109 S.Ct. 2522, 105 L.Ed.2d 322 (1989) (emphasis added). Given the limited holding in Lange , that decision does not support Boucher's argument here that resentencing would violate the Double Jeopardy Clause. Unlike in Lange , an increase in the custodial portion of Boucher's sentence on resentencing – so long as the Court does not exceed the statutory maximum, which it will not do – will not result in Boucher serving a punishment "in excess of that authorized by the legislature." Id.
The maximum sentence authorized by the statute of conviction is 10 years. See 18 U.S.C. § 351(e) ("Whoever assaults any person designated in subsection (a) of this section shall be fined under this title, or imprisoned not more than one year, or both; and if the assault involved the use of a dangerous weapon, or personal injury results, shall be fined under this title, or imprisoned not more than ten years, or both.").
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Boucher next contends that resentencing would violate the Double Jeopardy Clause because it would upset his legitimate expectation of finality in his completed sentence. In support of this contention, he cites statements from a number of appellate decisions for the proposition that a defendant may have an expectation of finality in a fully served sentence. (See Mot., ECF No. 52, PageID.323-26.) But, as the Government notes, none of those decisions addressed whether a defendant could have such an expectation while his sentence is being appealed by the Government. (See Gvt. Resp., ECF No. 57, PageID.346-48.) And the Supreme Court's decision in United States v. DiFrancesco , 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980), strongly suggests that a defendant has no reasonable expectation of finality in a sentence that is under appeal by the Government. In DiFrancesco , the Supreme Court explained a defendant "of course, is charged with knowledge" of the statutes permitting the Government to appeal his sentence, and therefore "he has no expectation of finality in his sentence until the appeal is concluded or the time to appeal has expired." Id. at 136, 101 S.Ct. 426. Here, Boucher has always been charged with knowledge that the Government had a statutory right to appeal his sentence, see 18 U.S.C. § 3742(b), and at the time he began serving his custodial sentence, he was aware that the Government had exercised that right. Under these circumstances, and in light of DiFrancesco , Boucher could not have had a reasonable expectation that his thirty-day sentence would be final. Thus, the Court rejects Boucher's expectation-of-finality Double Jeopardy argument
There is one further flaw in both of Boucher's Double Jeopardy arguments. They rest upon Boucher's contention that he "served every bit of a perfectly legal sentence." (Mot., ECF No. 52, PageID.327.) But the Sixth Circuit has concluded that his sentence was not "perfectly legal" and that it was, instead, "substantively unreasonable." Boucher , 937 F.3d at 704. That Boucher's Double Jeopardy arguments rest upon an inaccurate characterization of his original sentence is another reason that the Court cannot accept them.
Boucher's circumstances are not unique. Indeed, there appear to be several cases in which appellate courts have remanded for resentencing after a defendant has completed the custodial portion of his sentence. See, e.g., United States v. Christman , 607 F.3d 1110, 1121-22 (6th Cir. 2010) (remanding for resentencing after defendant had served his five-day sentence); United States v. Camiscione , 591 F.3d 823, 827-29 (6th Cir. 2010) (remanding for resentencing after defendant served his one-half day sentence); United States v. Smith , 860 F.3d 508, 512 (7th Cir. 2017) (remanding for resentencing after defendant completed 14-month original sentence). These cases appear to reflect the general rule that "a sentence may be increased after a successful appeal by the Government." United States v. Rosario , 386 F.3d 166, 170 (2d Cir. 2004). Boucher has not persuaded the Court that the Double Jeopardy Clause prevents the Court from following that rule here.
C
The Court also cannot accept Boucher's argument that a resentencing here would violate the Due Process Clause. The Supreme Court has rejected the argument that "the Due Process Clause provides greater double-jeopardy protection than does the Double Jeopardy Clause." Sattazahn v. Pennsylvania , 537 U.S. 101, 116, 123 S.Ct. 732, 154 L.Ed.2d 588 (2003). Thus, because (for the reasons explained above) resentencing would not violate the Double Jeopardy Clause, it does not violate the Due Process Clause.
III
For all of the reasons stated above, Boucher is not entitled to the dismissal of the charge against him. His motion to dismiss (ECF No. 52) is therefore DENIED .