U.S. v. Kincaid

7 Citing cases

  1. U.S. v. Garcia-Robles

    640 F.3d 159 (6th Cir. 2011)   Cited 47 times
    Holding that on a general remand, when a sentence has been vacated on appeal as procedurally unreasonable, the defendant is entitled to a plenary resentencing

    The "open court" requirement "`ensures that a defendant at the time of sentencing will know the grounds for an upward departure' and is not satisfied by a `belated attempt . . . to correct [a] failure to provide a specific statement at the sentencing hearing' in a subsequently issued opinion." United States v. Dawe, 362 Fed. Appx. 436, 439 (6th Cir. 2010) (unpublished) (quoting United States v. Kincaid, 959 F.2d 54, 55 (6th Cir. 1992)); see also United States v. Fitzwater, 896 F.2d 1009, 1012 (6th Cir. 1990) (noting that the "in open court" requirement is essential to a defendant's "decision on whether or not to appeal his sentence"). Logic dictates, if a resentencing hearing is mandatory upon a general remand following direct appeal, such a hearing must comply with the procedural demands of § 3553(c).

  2. United States v. Dawe

    362 F. App'x 436 (6th Cir. 2010)   Cited 5 times

    If the court decides a non-Guidelines sentence is warranted, it must state, "in open court . . . the specific reason for the imposition of a sentence different from that described [in the Guidelines], which reasons must also be stated with specificity in the written order of judgment and commitment." 18 U.S.C. § 3553(c); see also United States v. Kincaid, 959 F.2d 54, 55 (6th Cir. 1992) (noting that the open court requirement "ensures that a defendant at the time of sentencing will know the grounds for an upward departure" and is not satisfied by a "belated attempt . . . to correct [a] failure to provide a specific statement at the sentencing hearing" in a subsequently issued opinion). The court's Sentencing Opinion listed in detail the reasons for its non-Guidelines sentence, including the guidance in Application Note Four to § 7B1.4 of the Guidelines and a litany of considerations under 18 U.S.C. § 3553(a).

  3. U.S. v. Martin

    438 F.3d 621 (6th Cir. 2006)   Cited 42 times
    Holding that a series of car-theft convictions were unrelated because the defendant "introduced no evidence that he planned the final three car thefts at the time of the first theft"

    This court has not consistently applied the "arbitrary and capricious" standard to challenges to Guidelines provisions, instead asking "whether the guideline is sufficiently reasonable in light of congressional directions to the Sentencing Guideline Commission." See United States v. Kincaid, 959 F.2d 54, 56 (6th Cir. 1992); see also Butler, 207 F.3d at 850 (same); United States v. Kennedy, 32 F.3d 876, 889 (4th Cir. 1994) ("The Sentencing Commission brings expertise to the implementation of its mandate, and we must accordingly defer to its interpretation as long as it is sufficiently reasonable in light of the congressional directive.") (citations and quotation marks omitted). Nevertheless, because this court has not been consistent in articulating what standard of review applies to a challenge of this sort, we will assume for the sake of argument that the Commission's selection of a conversion ratio of 50% could be struck down if such a choice were indeed "arbitrary and capricious."

  4. U.S. v. Muhammad

    146 F.3d 161 (3d Cir. 1998)   Cited 19 times
    Upholding denial of adjustment for acceptance of responsibility where defendant offered no "genuine show of contrition"

    Since, as a general matter, no one can say with any degree of certainty what penalties will be imposed prior to the drafting of a presentence report and the holding of a sentencing hearing, adoption of Muhammad's approach would require the court to conduct an extended, mock sentencing procedure on counts for which no conviction has, or indeed may ever be, obtained. See also United States v. Kincaid, 959 F.2d 54, 56-57 (6th Cir. 1992) (using maximum possible sentence to compute § 2J1.6 enhancement is not arbitrary and capricious though probable sentence based on guidelines is much lower); United States v. Williams, 932 F.2d 1515 (D.C. Cir. 1991) (upholding enhancement based on maximum sentence of original underlying offense, although Williams was convicted only of misdemeanor); United States v. Harper, 932 F.2d 1073 (5th Cir. 1991) (approving enhancement based on possible sentence although defendant had already received a much lower sentence before failure to appear); United States v. Agbai, 930 F.2d 1447 (10th Cir. 1991) (approving enhancement based on five year maximum although Agbai had received two concurrent ten-month sentences). Muhammad also argues that where an underlying offense is punishable by both a generic penalty provision and a heightened penalty provision, only the generic provision should be counted for purposes of sentencing under the bail jumping guideline.

  5. U.S. v. Sarna

    28 F.3d 657 (7th Cir. 1994)   Cited 16 times
    Stating that a factor common to many bail jumping cases cannot be a proper basis for departure

    Every court of appeals that has considered the question has concluded that the statutory maximum controls. See United States v. Sanchez, 995 F.2d 468 (3d Cir. 1993); United States v. Kincaid, 959 F.2d 54 (6th Cir. 1992); United States v. Gardiner, 955 F.2d 1492 (11th Cir. 1992); United States v. Harper, 932 F.2d 1073 (5th Cir.), cert. denied, ___ U.S. ___, 112 S.Ct. 443, 116 L.Ed.2d 462 (1991); United States v. Williams, 932 F.2d 1515 (D.C. Cir. 1991); United States v. Agbai, 930 F.2d 1447 (10th Cir. 1991); United States v. Nelson, 919 F.2d 1381 (9th Cir. 1990). We need not decide whether the plea agreement or the statutory maximum controls in this case because the offense level yielded by the counterfeiting offense plus the two-level enhancement for obstruction of justice is greater than the offense level for the failure to appear offense, even with a nine-level addition, and thus controls the calculation of Sarna's sentence.

  6. U.S. v. Sanchez

    995 F.2d 468 (3d Cir. 1993)   Cited 4 times

    We agree with Lee that the nine-level enhancement in § 2J1.6 is entirely rational when applied to a defendant in Sanchez's position, and every Court of Appeals to address the question has reached the same conclusion. See United States v. Kincaid, 959 F.2d 54 (6th Cir. 1992); United States v. Gardiner, 955 F.2d 1492 (11th Cir. 1992); United States v. Williams, 932 F.2d 1515 (D.C.Cir. 1991); United States v. Agbai, 930 F.2d 1447 (10th Cir. 1991); United States v. Nelson, 919 F.2d 1381 (9th Cir. 1990). In short, we conclude that § 2J1.6(b)'s tiered enhancement structure, based on the maximum punishment for the underlying offense, is rationally related to both to the Sentencing Commission's duties and to the statutorily authorized purposes of punishment.

  7. U.S. v. Sarna, (N.D.Ind. 1993)

    834 F. Supp. 292 (N.D. Ind. 1993)   Cited 2 times

    Case law unanimously holds that the statutory maximum controls when the defendant flees before trial or sentencing. United States v. Sanchez, 995 F.2d 468 (3rd Cir. 1993); United States v. Kincaid, 959 F.2d 54 (6th Cir. 1992); United States v. Gardiner, 955 F.2d 1492 (11th Cir. 1992); United States v. Harper, 932 F.2d 1073 (5th Cir.), cert. denied, ___ U.S. ___, 112 S.Ct. 443, 116 L.Ed.2d 462 (1991); United States v. Williams, 932 F.2d 1515 (D.C. Cir. 1991). Those cases are particularly persuasive when, as here, the lower limitation on the court's sentencing authority is based on an agreement connected to a guilty plea the court had not yet accepted; unlike the defendant in United States v. Lee, 887 F.2d 888 (8th Cir. 1989), Mr. Sarna had not yet been sentenced.