USCA4 Appeal: 23-4615 Doc: 42 Filed: 11/20/2024 Pg: 1 of 15

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 23-4615

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DAVID HYUN CHANG, a/k/a Dave Cali,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. John A. Gibney, Jr., Senior District Judge; Lawrence Richard Leonard, Magistrate Judge. (2:21-cr-00146-JAG-LRL-1)

Argued: September 27, 2024 Decided: November 20, 2024

Before NIEMEYER, THACKER, and RUSHING, Circuit Judges.

Vacated and remanded by published opinion. Judge Niemeyer wrote the opinion, in which Judge Rushing joined. Judge Thacker wrote an opinion concurring in part and dissenting in part.

ARGUED: Matthew B. Kaplan, THE KAPLAN LAW FIRM, Arlington, Virginia, for Appellant. Alexandra Zoe Bedell, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Jessica D. Aber, United States Attorney, Richmond, Virginia, Joseph Attias, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. USCA4 Appeal: 23-4615 Doc: 42 Filed: 11/20/2024 Pg: 2 of 15

NIEMEYER, Circuit Judge:

After David Chang pleaded guilty to participation in a drug-trafficking conspiracy,

the district court sentenced him to 72 months’ imprisonment and four years’ supervised

release. The court found that Chang qualified for the safety valve under

(f) but applied that provision erroneously, and we vacated the sentence and

remanded for resentencing. Following a lengthy and fulsome hearing on September 29,

2023, the district court resentenced Chang to 69 months’ imprisonment and ten years’

supervised release. Chang contends that the new sentence was harsher than his original

sentence and therefore vindictive in violation of the Due Process Clause. See North

Carolina v. Pearce,

, 725–26 (1969), overruled in part by Alabama v. Smith,

(1989); United States v. Singletary,

, 423–25 (4th Cir.), cert.

denied,

(2023).

While the circumstances of this case arguably fail to show a “reasonable likelihood

of vindictiveness,” United States v. Goodwin,

(1982), they are

nonetheless insufficient to explain a harsher sentence. Therefore, we vacate Chang’s

sentence and remand again for resentencing.

I

From March to October 2021, David Chang participated in a drug-trafficking

conspiracy through which he supplied large quantities of cocaine from California to Harold

Campbell, a mid-level distributor in Virginia Beach, Virginia. After investigating the

suspicious conduct of a mail carrier for the U.S. Postal Service, who helped distribute the

2 USCA4 Appeal: 23-4615 Doc: 42 Filed: 11/20/2024 Pg: 3 of 15

cocaine, the government uncovered Chang and Campbell’s conduct and indicted them for

conspiracy to distribute cocaine, in violation of

. A conviction for that

offense required a mandatory minimum sentence of five years’ imprisonment and four

years’ supervised release. See

, 841(a)(1), 841(b)(1)(B)(ii).

Campbell and Chang each pleaded guilty, and the district court sentenced Campbell

in July 2022 to 72 months’ imprisonment and four years’ supervised release. When

sentencing Chang some five months later, the court noted that, while both defendants were

“scoundrels,” Chang had cooperated with the government, although he gave the

government “as little as possible” in his interviews. Nonetheless, the court found that

Chang was entitled to the “safety valve” benefits under

(f), which requires

a district court to sentence a qualifying defendant “without regard to any statutory

minimum sentence.”

(f) (emphasis added). But after the district court

calculated the appropriate sentencing range under the Sentencing Guidelines, it stated that

that range was “irrelevant because there is a mandatory minimum of five years” for the

crime to which Chang pleaded guilty. After reviewing Chang’s personal circumstances

and allowing allocution, the court concluded that Chang’s “culpability [was] at least equal

with that of Mr. Campbell” and that it “needed to avoid disparities” with Campbell.

Accordingly, it sentenced Chang to 72 months’ imprisonment and four years’ supervised

release, the same sentence it had given to Campbell.

On appeal, we vacated Chang’s sentence because the district court erroneously

concluded that its sentencing was governed by the statutory minimum even though it had

found Chang eligible for the benefits of the safety-valve provision.

3 USCA4 Appeal: 23-4615 Doc: 42 Filed: 11/20/2024 Pg: 4 of 15

On remand, the district court resentenced Chang on September 29, 2023, following

a fulsome sentencing hearing, during which it engaged with counsel on the full range of

circumstances relevant to sentencing. It recalculated Chang’s Guidelines range to be 37 to

46 months’ imprisonment and then heard arguments from counsel. During the various

exchanges, the court emphasized Chang’s senior role in a serious drug offense, observing

that “this was a fairly substantial conspiracy with a whole lot of drugs.” It also observed

that Chang was raised in a good home and contributed positively to society for many years.

He graduated from college, served in the U.S. Air Force, and was honorably discharged.

The court stated, “Mr. Chang had a pretty nice life until he was in his mid-30s and

something went haywire on him.” It noted that, prior to participating in the drug

conspiracy, he was convicted of driving while under the influence and became involved in

illegal gambling, which led to a guilty plea for money laundering. Addressing Chang, the

court summarized, “[F]or some reason, you really jump[ed] into criminal conduct with both

feet in your mid-30s. I think that that indicates a degree of inexcusable seriousness that I

don’t see in a lot of other people.”

The court then systematically weighed the sentencing factors listed in

(a). When it considered the need to avoid sentencing disparities, it recognized that

Campbell had a more extensive criminal history than Chang but noted, “I don’t think we

look just at the prior criminal record. We look at the conduct, and the conduct here is that

Mr. Chang was no small-time dealer. He was a major supplier.” The court then imposed

a sentence of 69 months’ imprisonment and ten years’ supervised release. With respect to

the term of supervised release, the court explained to Chang, “I’m doing that because of

4 USCA4 Appeal: 23-4615 Doc: 42 Filed: 11/20/2024 Pg: 5 of 15

your leap into a criminal lifestyle. Your adoption of a criminal lifestyle just seems to be

wholehearted.”

Thus, at his original sentencing hearing, the court sentenced Chang to 72 months’

imprisonment and four years’ supervised released, and, at his resentencing hearing, it

sentenced him to 69 months’ imprisonment and ten years’ supervised release.

Chang filed this appeal from the district court’s judgment, contending mainly that

the district court sentenced him more harshly on remand to punish him for successfully

exercising his appellate rights, in violation of the Due Process Clause.

II

Chang’s primary contention on appeal is that, following his successful appeal, he

received a harsher sentence at resentencing, which, in the circumstances of this case,

requires us to presume that the district court improperly punished him for exercising his

appellate rights. See Singletary,

. He concludes that “because the facts do

not rebut this presumption, [his] new sentence . . . must again be set aside,” as it violated

the Due Process Clause of the Fifth Amendment.

The Due Process Clause does indeed prohibit a district court from imposing a

harsher sentence on resentencing to punish a defendant for successfully exercising his

appellate rights. See Pearce,

. To protect against such violations, Pearce

created a rebuttable presumption, stating:

In order to assure the absence of such a [vindictive] motivation, we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning

5 USCA4 Appeal: 23-4615 Doc: 42 Filed: 11/20/2024 Pg: 6 of 15

identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding.

. Thus, “Pearce established a rebuttable presumption of vindictiveness whenever

a judge imposes a more severe sentence upon a defendant after a successful appeal,” and

“to defeat this presumption, the district court must justify its increased sentence by

affirmatively identifying relevant conduct or events that occurred subsequent to the original

sentencing proceedings.” Singletary,

(cleaned up).

Since Pearce, however, the Supreme Court has substantially tempered the rigidity

of the Pearce presumption, noting that it is not so sweeping and mechanical a rule as to

apply in every case “where a convicted defendant receives a higher sentence on retrial.”

Smith,

(quoting Texas v. McCullough,

(1986)). As the

Smith Court explained, “the Pearce presumption was not designed to prevent the

imposition of an increased sentence on retrial ‘for some valid reason associated with the

need for flexibility and discretion in the sentencing process,’ but was ‘premised on the

apparent need to guard against vindictiveness in the resentencing process.’”

(quoting

Chaffin v. Stynchcombe,

(1973)). Thus, the Smith Court limited the Pearce

presumption to circumstances where there was a “reasonable likelihood that the increase

[was] the product of actual vindictiveness.”

(cleaned up). We have thus recognized

that when “the same judge, in the same posture,” imposes a harsher sentence “following a

successful appeal,” the “presumption of vindictiveness applies to any unexplained increase

in [the defendant’s] sentence.” Singletary,

(emphasis added) (citing Smith,

).

6 USCA4 Appeal: 23-4615 Doc: 42 Filed: 11/20/2024 Pg: 7 of 15

There is a broad range of conduct, events, and circumstances that can justify a

harsher sentence on remand without raising a suspicion that the district court’s harsher

sentence was motivated by vindictiveness. Although the Supreme Court has stated that a

district court “may justify an increased sentence by affirmatively identifying relevant

conduct or events that occurred subsequent to the original sentencing proceedings,”

Wasman v. United States,

(1984), it has since clarified that that

formulation was “never intended to describe exhaustively all of the possible circumstances

in which a sentence increase could be justified,” McCullough,

. Rather,

the touchstone is whether the circumstances show that there was a “reasonable likelihood

of vindictiveness.” Goodwin,

. Any attempt to itemize exhaustively the

non-vindictive considerations that might justify an increased sentence would inevitably

omit some “objective information” that might indeed justify a harsher sentence.

McCullough,

(quoting Goodwin,

). A court at a

resentencing proceeding generally has broad discretion to resentence a defendant on a clean

slate. See Pepper v. United States,

(2011).

In Pepper, for example, the Court held that the “law of the case” doctrine did not

prevent a district court on remand from reconsidering the extent of an earlier departure

from the Sentencing Guidelines, even though the prior sentence was vacated on an

unrelated ground.

. In so holding, the Court confirmed that district courts

possess discretion to “reconfigure the sentencing plan” when a prior sentence has been

vacated.

(quoting Greenlaw v. United States,

(2008)). The Pepper

Court’s instruction was clear. When a sentence has been vacated and the case remanded

7 USCA4 Appeal: 23-4615 Doc: 42 Filed: 11/20/2024 Pg: 8 of 15

for resentencing, district courts are to resentence on a clean slate, imposing the punishment

they think appropriate without undue hindrance from prior sentencing proceedings. See

Against this general principle, we must recognize that the Pearce presumption, even

though it demands an explanation for any harsher sentence after a successful appeal, must

not be construed to unduly undermine a sentencing court’s “flexibility and discretion in the

sentencing process.” Chaffin,

.

While the Supreme Court has thus discouraged courts from rigidly applying Pearce,

the Court has retained the principle at Pearce’s core that a harsher sentence imposed after

a successful appeal cannot stand where there appears a “reasonable likelihood” of

vindictiveness. Goodwin,

. And that reasonable likelihood is established

where there is an “unexplained increase” — i.e., where “the same judge, in the same

posture,” imposes a harsher sentence “following a successful appeal.” Singletary,

(emphasis added). Even then, however, the presumption may be rebutted if the

district court identifies “objective information in the record justifying the increased

sentence.” Goodwin,

.

Applying these principles to this case, we ask first whether Chang’s second sentence

was actually harsher than his first. Only if it was do we then ask whether the Pearce

presumption of vindictiveness applies and whether the district court rebutted it. See United

States v. Ventura,

(4th Cir. 2017) (citing United States v. Kincaid,

(4th Cir. 1992)).

At Chang’s initial sentencing, the district court imposed a 72-month term of

imprisonment and a four-year term of supervised release. At his resentencing, the court

8 USCA4 Appeal: 23-4615 Doc: 42 Filed: 11/20/2024 Pg: 9 of 15

imposed a 69-month term of imprisonment and a ten-year term of supervised release.

Chang claims that even though he received a shorter term of incarceration, his second

sentence was nonetheless harsher than his first because of the large increase in his term of

supervised release.

To be sure, terms of incarceration and supervised release are not commensurate.

While both serve as forms of punishment and curtail a defendant’s liberty, they are “not

interchangeable.” See Mont v. United States,

(2019) (quoting United

States v. Johnson,

(2000)). Incarceration clearly restricts a defendant’s

freedom to a greater extent than does supervised release. Thus, courts cannot weigh terms

of incarceration and supervised release with any mathematical certainty. If a district court

at resentencing imposes a longer term of supervised release but a shorter term of

incarceration, the sentence might not be harsher for purposes of the Pearce presumption.

For instance, if the court had reduced Chang’s term of imprisonment from 72 months to 46

months — the top of his Guidelines range — and increased his term of supervised release

from four years to six years, Chang might have preferred to serve that sentence. It is

apparent that comparing terms of incarceration and supervised release likens clementines

to kumquats and likely draws on subjective choice. But in this case, because the district

court reduced Chang’s term of incarceration by only three months and increased his term

of supervised release by six years, we accept Chang’s claim that his second sentence was

indeed harsher than his first. The government does not dispute that conclusion, and we

would expect that most, if not all, reasonable defendants would elect to serve an additional

9 USCA4 Appeal: 23-4615 Doc: 42 Filed: 11/20/2024 Pg: 10 of 15

three months’ imprisonment to receive a reduction of six years from their term of

supervised release.

Because Chang’s second sentence was harsher than his first and he was sentenced

“by the same judge, in the same posture, following a successful appeal, . . . a presumption

of vindictiveness applies to any unexplained increase in his sentence.” Singletary,

. The more difficult question is whether the district court adequately explained its

harsher sentence. The government notes that in between the two sentencings, the district

court obtained documentation providing greater insight into the extent of Chang’s alcohol

and cocaine abuse. For example, Chang introduced medical records that described, among

other medical conditions, his diagnosis with severe alcohol-use disorder.

But while these facts were presented in more detail at the resentencing, the district

court generally took them into account during Chang’s original sentencing. More

importantly, the district court did not mention that additional information about Chang’s

medical condition when explaining its decision to increase Chang’s term of supervised

released from four years to ten years. To the contrary, the court at resentencing explained

that increase for other reasons, stating, “I’m doing that because of [Chang’s] leap into a

criminal lifestyle. [His] adoption of a criminal lifestyle just seems to be wholehearted.”

Yet, the court considered that reason at Chang’s original sentencing, and none of the facts

relevant to that reason had changed so as to justify an increased sentence.

To be sure, the court’s careful and fulsome analysis of Chang’s personal

circumstances and criminal record at resentencing might still suggest a good-faith

readjustment of Chang’s sentence, rather than one motivated by any sense of

10 USCA4 Appeal: 23-4615 Doc: 42 Filed: 11/20/2024 Pg: 11 of 15

vindictiveness. But the fact remains that there was no objective change in the case’s

posture or Chang’s circumstances to justify the increased sentence, which supports

Chang’s claim of presumed vindictiveness. Because Chang was given a harsher sentence

by the same judge, in the same posture, following a successful appeal,” Singletary,

, we conclude that Pearce’s presumption of vindictiveness arose and was not

rebutted. In these circumstances, we vacate Chang’s sentence and remand for resentencing.

III

The government contends that Chang failed to preserve his claim of vindictive

sentencing before the district court, and therefore we should review Chang’s argument for

plain error, a standard that the government claims Chang has not satisfied.

While Chang questions whether the plain-error standard applies, we have

recognized, without deciding the question, that a consensus of persuasive authority holds

that it does. See Singletary,

n.4 (first quoting United States v. Vontsteen,

(5th Cir. 1992) (en banc); then citing United States v. Johnson,

(6th Cir. 2013); and then citing United States v. Baugham,

(D.C. Cir. 2010) (per curiam)). And we can discern no good reason why that standard

should not apply here. Upon hearing his harsher sentence, Chang could readily have

objected, citing Pearce, and the district court would then have had the opportunity to

address his objection and perhaps avoid this appeal. Because he failed to bring his

objection to the court’s attention, he must now satisfy the requirements for plain-error

review on appeal.

11 USCA4 Appeal: 23-4615 Doc: 42 Filed: 11/20/2024 Pg: 12 of 15

But even applying the plain-error standard of review, we are satisfied that we should

exercise our discretion to correct the error.

Federal Rule of Criminal Procedure 52(b) provides, “A plain error that affects

substantial rights may be considered even though it was not brought to the court’s

attention.” As used in the Rule, “plain error” means an error that is “clear or obvious,

rather than subject to reasonable dispute.” Puckett v. United States,

(2009) (citing United States v. Olano,

(1993)). And the Rule requires

that the error affect the defendant’s substantial rights — i.e., it must affect the outcome of

the proceedings before the district court. See

(quoting Olano,

). Thus,

under the plain-error standard, the defendant must show (1) an error that he did not

“affirmatively waive” that (2) was “clear or obvious, rather than subject to reasonable

dispute,” and that (3) “affected the outcome of the district court proceedings.”

(cleaned

up). Even if the defendant makes that showing, he must still persuade the appellate court

to exercise its discretion to correct the error, as the Rule makes the recognition and

correction of plain error discretionary. See Fed. R. Crim. P. 52(b) (providing that “plain

error . . . may be considered” (emphasis added)). We exercise that discretion to correct a

plain error when “the error seriously affected the fairness, integrity or public reputation of

judicial proceedings.” Puckett,

(cleaned up). Thus, satisfying the plain-

error standard is obviously “difficult.” United States v. Covington,

, 730–31

(4th Cir. 2023) (quoting Greer v. United States,

(2021)).

Applying the standard to this case, we recognize that imposing a harsher sentence

on a defendant after his successful appeal without identifying intervening circumstances to

12 USCA4 Appeal: 23-4615 Doc: 42 Filed: 11/20/2024 Pg: 13 of 15

justify the increase violates the clearly established rule against vindictive sentencing under

the Due Process Clause. Thus, it amounted to “error” for purposes of Rule 52(b), as “error”

involves some “deviation from a legal rule.” Puckett,

(cleaned up).

Moreover, the prohibition against vindictive sentencing has been clear since, at the latest,

1969. See Pearce,

. Finally, the “error” in this case affected its outcome,

as Chang received a harsher sentence than he otherwise might have. Thus, we conclude

that Chang has satisfied the three conditions necessary for application of the Rule.

Though the Rule gives us discretion to not correct the error, we are persuaded to do

so here, as we believe that any sentencing proceeding that raises and fails to rebut Pearce’s

presumption of vindictiveness undermines the fairness and integrity of the proceeding. See

Olano,

(quoting United States v. Atkinson,

(1936)). And

to correct the error, we are vacating Chang’s sentence and remanding for resentencing.

IV

Because of our ruling, we need not address Chang’s claim that his sentencing was

procedurally and substantively unreasonable. We also deny Chang’s motion to remand

this case to a different district judge. The judge below conducted thorough and reasonable

sentencing hearings, and we have found nothing in the court’s comments or conduct that

suggests judicial bias, partiality, or some other reason for disqualification.

VACATED AND REMANDED

13 USCA4 Appeal: 23-4615 Doc: 42 Filed: 11/20/2024 Pg: 14 of 15

THACKER, Circuit Judge, concurring in part and dissenting in part:

I concur in part, and dissent in part.

I concur in that part of the opinion that holds that under the circumstances of this

case, the presumption of vindictiveness is unrebutted and that remand for re-sentencing is

the appropriate remedy. However, I dissent from that part of the opinion that remands to

the same district court judge for re-sentencing. I would respectfully remand to a different

judge for re-sentencing. To conclude Appellant met the rebuttable presumption of

vindictiveness, but then turn around and assign the re-sentencing on the basis of that

presumed vindictiveness to the same district court judge defies logic.

The majority opinion quite clearly concludes, “Because Chang was given a harsher

sentence by the same judge, in the same posture, following a successful appeal,

Singletary,

. . . Pearce’s presumption of vindictiveness arose and was

not rebutted.” Ante at 11. And, pursuant to our precedent, “bias on the part of the

sentencing judge,” “requir[es] remand to a different judge.” United States v. Guglielmi,

(4th Cir. 1991). Vindictiveness is akin to bias. It does not make sense

to conclude that there is a presumption of judicial vindictiveness but then say “[t]he judge

below conducted thorough and reasonable sentencing hearings, and we have found nothing

in the court’s comments or conduct that suggests judicial bias, partiality, or some other

reason for disqualification.” Ante at 13. In concluding that the presumption of

vindictiveness is not rebutted, we did find a suggestion of judicial bias. That does not mean

that I am saying the district court judge was actually vindictive or biased in this case. I am

14 USCA4 Appeal: 23-4615 Doc: 42 Filed: 11/20/2024 Pg: 15 of 15

simply saying that once the law presumes vindictiveness, then the law also requires remand

to a different judge.

Beyond that, even absent a finding of presumptive bias, I am of the view that

reassignment to a different judge on remand would preserve the appearance of judicial

integrity. See United States v. Nicholson,

(4th Cir. 2010) (Explaining

that absent a claim of bias reassignment is appropriate in “unusual circumstances where

both for the judge’s sake and the appearance of justice an assignment to a different judge

is salutary and in the public interest, especially as it minimizes even a suspicion of

partiality”); United States v. North Carolina,

, 582–83 (4th Cir. 1999) (same);

see also United States v. Galecki,

(4th Cir. 2019). “When we remand a

case, we may reassign it to a different judge when ‘the appearance of fairness and

impartiality is best advanced by reassignment.’” United States v. McCall,

(2019) (quoting United States v. Neal,

, 1000 n.5 (4th Cir. 1996)).

15