At page 599 “when a sentence has been vacated, the defendant is placed in the same position as if he had never been sentenced.”27 citing cases
- United States v. Vivian Tat, 97 F.4th 1155 (9th Cir. 2024).publishedWhen we remand for de novo resentencing, it is a “settled principle” that vacating an appellant’s original sentence “legally ‘wipe[s] the slate clean,’” United States v. Merrell, 37 F.4th 571 , 576 (9th Cir. 2022) (quoting Pepper v. United…
- United States v. Verne Merrell, 37 F.4th 571 (9th Cir. 2022).publishedWe start from the settled principle that the vacatur of appellants’ original sentences legally “wiped the slate clean.” Pepper, 562 U.S. at 507 . “[W]hen a criminal sentence is vacated, it becomes void in its entirety,” United States v. St…
- United States v. Antonio Rivera, 799 F.3d 180 (2d Cir. 2015).published Cf. United States v. Maldonado, 996 F.2d 598, 599 (2d Cir.1993) (per curiam) (“[W]hen a sentence has been vacated, the defendant is placed in the same position as if he had never been sentenced.”).
- United States v. Echeverri, 519 F. App'x 68 (2d Cir. 2013).unpublishedWe have no choice but to remand again for a full resentencing, because “when a sentence has been vacated, the defendant is placed in the same position as if he had never been sentenced.” United States v. Maldonado, 996 F.2d 598, 599 (2d Ci…
- United States v. Schulze, 516 F. App'x 74 (2d Cir. 2013).unpublishedThat Judge Robinson concluded that Schulze was entitled to the aceeptance-of-responsibility adjustment at the first sentencing is of no matter. “[W]hen a sentence has been vacated, the defendant is placed in the same position as if he had…
- United States v. Griffin, 530 F.3d 433 (6th Cir. 2008).publishedGenerally, “[i]n order to ensure a meaningful exercise of [a defendant’s] right of allocution, he must be placed ‘in the same position as if he had never been sentenced.’ ” Riascos-Suarez, 73 F.3d at 627 -28 (citing United States v. Maldon…
- United States v. Dengenhardt, 405 F. Supp. 2d 1341 (D. Utah 2005).publishedSee United States v. Muniz, 1 F.3d 1018, 1025 (10th Cir.1993), cert. denied, 510 U.S. 1002 , 114 S.Ct. 575 , 126 L.Ed.2d 474 (1993); United States v. Maldonado, 996 F.2d 598, 599 (2d Cir.1993); United States v. Barnes, 948 F.2d 325, 332 (7…
- United States v. Degenhardt, 405 F. Supp. 2d 1341 (D. Utah 2005).publishedSee United States v. Mun-iz, 1 F.3d 1018, 1025 (10th Cir.1993), cert. denied, 510 U.S. 1002 , 114 S.Ct. 575 , 126 L.Ed.2d 474 (1993); United States v. Maldonado, 996 F.2d 598, 599 (2d Cir.1993); United States v. Barnes, 948 F.2d 325, 332 (…
- Mandarino v. Ashcroft, 318 F. Supp. 2d 13 (D. Conn. 2003).published(when a sentence has been vacated, the defendant is placed in the same position as if he had never been sentenced)
- United States v. Adams, No. 00-1212 (3d Cir. May 23, 2001).E.g., United States v. Myers, 150 F.3d 459, 462-64 (5th Cir. 1998); United States v. Rodriguez-Velasquez, 132 F.3d 698, 700 (11th Cir. 1998); United States v. Riascos-Suarez, 73 F.3d 616, 627 (6th Cir. 1996); United States v. Alba Pagan, 3…
Show 17 more citing cases
- United States v. Michael Anthony Adams, 252 F.3d 276 (3d Cir. 2001).publishedE.g., United States v. Myers, 150 F.3d 459, 462-64 (5th Cir.1998); United States v. Rodriguez-Velasquez, 132 F.3d 698, 700 (11th Cir.1998); United States v. Riascos-Suarez, 73 F.3d 616, 627 (6th Cir.1996); United States v. Alba Pagan, 33 F…
- United States v. Popovic, 8 F. App'x 22 (2d Cir. 2001).unpublished However, “when a sentence has been vacated, the defendant is placed in the same position as if he had never been sentenced.” United States v. Maldonado, 996 F.2d 598, 599 (2d Cir.1993); see also United States v. Atehortva, 69 F.3d 679, 685…
- Gregory David Werber v. United States, 149 F.3d 172 (2d Cir. 1998).publishedTherefore, the district court will be writing on a clean slate ...-.”) (internal quotation marks and citation omitted); cf. United States v. Maldonado, 996 F.2d 598, 599 (2d Cir.1993) (per curiam) (noting that “when a sentence has been vac…
- United States v. Guido Riascos-Suarez A/K/A Kennedy Diuza-Riascos, 73 F.3d 616 (6th Cir. 1996).publishedIn order to ensure a meaningful exercise of Riascos-Suarez’s right of allocution, he must be placed “in the same *628 position as if he had never been sentenced.” United States v. Maldonado, 996 F.2d 598, 599 (2d Cir.1993) (per curiam). 5…
- United States v. DeRiggi, 893 F. Supp. 171 (E.D.N.Y 1995).published([W]hen a sentence has been vacated, the defendant is placed in the same position as if he had never been sentenced.)
- United States v. Ekwunoh, 888 F. Supp. 369 (E.D.N.Y 1995).publishedIn United States v. Maldonado, 996 F.2d 598, 599 (2d Cir.1993), the court of appeals held that, for purposes of Federal Rule of Criminal Procedure 32, “when a sentence has been vacated, the defendant is placed in the same position as if he…
- Kaziu v. United States, 108 F.4th 86 (2d Cir. 2024).published(holding that right to in-person allocution by the defendant applies during resentencing after appeal)
- United States v. James Johnson, 387 F. App'x 105 (2d Cir. 2010).unpublished([W]hen a sentence has been vacated, the defendant is placed in the same position as if he had never been sentenced.)
- United States v. Murgas, 321 F. Supp. 2d 451 (N.D.N.Y. 2004).published(When a sentence has been vacated, the defendant is placed in the same position as if he had never been sentenced.)
- State v. Keathly, 145 S.W.3d 123 (Tenn. Crim. App. 2003).publishedSee United States v. Maldonado, 996 F.2d 598, 599 (2d Cir.1993); Barnes, 948 F.2d at 332 ; Phillips, 936 F.2d at 1256 ; Walker, 896 F.2d at 301 ; Posner, 868 F.2d at 724 ; United States v. Buckley, 847 F.2d 991, 1002 (1st Cir.1988), cert.…
- United States v. Pfeiffer, 886 F. Supp. 303 (E.D.N.Y 1995).published([W]hen a sentence has been vacated, the defendant is placed in the same position as if he had never been sentenced.)
- United States v. Axelrod, 48 F.3d 72 (2d Cir. 1995).publishedSee United States v. Maldonado, 996 F.2d 598, 599 (2d Cir.1993) (per curiam).
- United States v. Axelrod, 48 F.3d 72 (2d Cir. 1995).publishedSee United States v. Maldonado, 996 F.2d 598, 599 (2d Cir.1993) (per curiam).
- United States v. De Alba Pagan, 33 F.3d 125 (1st Cir. 1994).publishedSee United States v. Maldonado, 996 F.2d 598, 599 (2d Cir.1993); Barnes, 948 F.2d at 332 ; Phillips, 936 F.2d at 1256 ; Walker, 896 F.2d at 301 ; Posner, 868 F.2d at 724 ; United States v. Buckley, 847 F.2d 991, 1002 (1st Cir.1988), cert.…
- United States v. John Frank Rodgers, 101 F.3d 247 (2d Cir. 1996).publishedSee, e.g., United States v. Maldonado, 996 F.2d 598, 599 (2d Cir.1993).
- United States v. Moloney, 945 F. Supp. 46 (W.D.N.Y. 1996).published(finding that, for purposes of a defendant’s right to allocution, “when a sentence has been vacated, the defendant is placed in the same position as if he had never been sentenced)
- United States v. Naugle, 879 F. Supp. 262 (E.D.N.Y 1995).publishedSee also United States v. Maldonado, 996 F.2d 598, 599 (2d Cir.1993); United States v. Gangi, 45 F.3d 28, 31 (2d Cir.1995) (“[Defendant must have an opportunity to respond to the government’s characterization of his post-sentencing coopera…
v.
Erasmo MALDONADO, Jr., Defendant-Appellant
Defendant pro se Erasmo Maldonado, Jr., appeals from a November 30, 1992 judgment of the United States District Court for the Eastern District of New York, John R. Bar-tels, Judge, convicting him of possession of cocaine with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B) (1988), and sentencing him principally to 70 months’ imprisonment, to be followed by a four-year term of supervised release. On appeal, Maldonado contends, inter alia, that the district court (a) failed to afford him an opportunity to address the court before the imposition of sentence, and (b) failed to make findings as to the quantity of cocaine for which Maldonado was responsible.
Maldonado was originally sentenced, after entering a plea of guilty, in October 1991. Following a collateral attack on his conviction, the district court in October 1992 vacated his sentence. On November 30, 1992, Maldonado was resentenced. As the government acknowledges, however, Maldonado was not afforded an opportunity to speak at the resentencing proceeding.
Rule 32 of the Federal Rules of Criminal Procedure provides, in pertinent part, that “[b]efore imposing sentence, the court shall ... address the defendant personally and determine if the defendant wishes to make a statement and to present any information in mitigation of the sentence.” Fed. R.Crim.P. 32(a)(1)(C). For purposes of this Rule, when a sentence has been vacated, the defendant is placed in the same position as if he had never been sentenced. See, e.g., United States v. Barnes, 948 F.2d 325, 330 (7th Cir.1991); United States v. Shubbie, 778 F.2d 199, 200 (5th Cir.1985); cf. United States v. Ayres, 76 U.S. (9 Wall.) 608, 610, 19 L.Ed. 625 (1869) (effect of order granting new trial is to permit defendant to raise any matter that may normally be raised prior to trial).
Accordingly, after entering its October 1992 order vacating Maldonado’s original sentence, prior to imposing any new sentence the district court should have afforded Maldonado the opportunity to address the court. Since this did not occur, we vacate the November 30, 1992 judgment of conviction and remand for proceedings in which Maldonado is given an opportunity to speak in accordance with Fed.R.Crim.P. 32(a)(1)(C). The court is, of course, to make any findings required by Fed.R.Crim.P. 32(c)(3)(D).
Vacated and remanded.