U.S. Court of Appeals for the Second Circuit, 2012

United States v. Moge

United States v. Moge
U.S. Court of Appeals for the Second Circuit · Decided February 22, 2012 · Jacobs, Calabresi, Pooler
463 F. App'x 20

United States v. Moge

Opinion

SUMMARY ORDER

Abdi Emil Moge and Ali Awad appeal from judgments entered in the United States District Court for the Southern District of New York resentencing each of them, following this Court’s remand in United States v. Awad, 369 Fed.Appx. 242 (2d Cir. 2010) (summary order) (“Awad 7”), to a term of imprisonment of 84 months for conspiracy to distribute and to possess with intent to distribute a controlled substance. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.

The defendants argue that the district court erred in concluding that its mandate was limited to resentencing them on the conspiracy to distribute count (“Count One”), and that it should have resentenced them de novo on all counts for which they were convicted. Whether the district court misinterpreted its sentencing authority is a question of law which we review de novo. See United States v. Hurtado, 47 F.3d 577, 585 (2d Cir. 1995).

The district court was correct to resen-tence the defendants only on Count One. When an appellate court remands based on a sentencing error as opposed to a conviction error, the default rule is that the district court should engage in limited re-sentencing confined to addressing the particular error identified by the appellate court. See United States v. Rigas, 583 F.3d 108, 115 (2d Cir. 2009); United States v. Quintieri, 306 F.3d 1217, 1228 (2d Cir. 2002). In Awad I, we remanded this case for resentencing because the district court had misinterpreted the maximum statutory sentence permissible on Count One. We remanded expressly “so that the district court can sentence defendants ... for their convictions pursuant to Count One of the Indictment in a manner consistent with this order.” Awad I, 369 Fed.Appx. at 247. The mandate was thus plainly limited to resentencing the defendants on Count One alone.

None of the exceptions to the default rule of limited resentencing to correct sentencing errors apply in this case. The remand in Awad I did not “undo[j the entire knot of calculation” underlying the defendants’ sentences so as to require de novo resentencing on all counts. Quintieri, 306 F.3d at 1228 (internal quotation marks omitted). The applicable Guidelines ranges were unaffected, and the defendants’ sentences on the other counts were entirely independent of their sentences on Count One. Nor is this a case in which a sentencing issue “had no practical effect on a defendant’s sentence at the original sentencing but becomes relevant only after appellate review.” Id. at 1229. The sentencing issue which the defendants now seek to raise-the disparity between their sentences and those of other similarly situated defendants-was specifically argued at their original sentencing and rejected by the district court. It was also argued on appeal and rejected in Awad I. Finally, there are no “cogent and compelling reasons,” such as “an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice” that would require de novo resentencing in this case. Id. at 1230 (internal quotation marks omitted).

*23 We have considered the defendants’ remaining arguments and find them to be without merit. For the foregoing reasons, the judgments of the district court are hereby AFFIRMED.

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