United States of America, Plaintiff-appellant, v. William Michael Midgett, Defendant-appellee, 998 F.2d 1011 (4th Cir. 1993)

In an earlier opinion, we vacated the sentence of appellee William Michael Midgett, and remanded for resentencing. At resentencing, the United States moved for an upward departure based on the amount of drugs involved in Midgett's offenses. The district court refused to consider the motion, and the United States appeals, arguing that this refusal was error. We agree, and once again vacate and remand for resentencing.

Our earlier opinion thoroughly describes the relevant facts in this case, see United States v. Midgett, 972 F.2d 64 (4th Cir. 1992) ("Midgett I "), and we recount them here only to the extent necessary to resolve this appeal. A jury convicted Midgett of two counts of possession with intent to distribute cocaine and psilocyn, see 21 U.S.C. § 841(a) (1), and one count of maintaining a place for the purpose of manufacturing, distributing, and using those controlled substances, see 21 U.S.C. § 856(a) (1). The district court calculated Midgett's base offense level to be twenty-six, with a Criminal History Category of I. The court sentenced Midgett to sixty-three months of imprisonment, the bottom of the relevant guideline range, and Midgett appealed. We held that the district court had incorrectly employed the drug quantity table, see U.S.S.G. § 2D1.1(c), to enhance Midgett's base offense level for the section 856(a) conviction. We therefore vacated Midgett's sentence and remanded for resentencing. See Midgett I, 972 F.2d at 66-67.

At resentencing, the Government moved for an upward departure based on the amount of drugs involved in Midgett's section 856(a) offense. The district court refused to consider the Government's motion. It reasoned that the Government's failure to make such a motion at the original sentencing hearing had deprived the court of the authority to depart. Id. at 278, 288. Applying a base offense level of sixteen, see U.S.S.G. § 2D1.8, the court sentenced Midgett to twenty-five months' imprisonment. This appeal followed.

Responding to the Government's upward departure motion, the district court reasoned "that having not given-having not departed before, I am limited to sentence within the Guidelines now, or at least, not go over the Guidelines. I don't think I can give other than a Guideline sentence now. And you can appeal it.... I have ruled as a matter of law that departure is not available." J.A. at 278.¹  The Government argues that the court misconstrued our opinion in Midgett I and erred in not even considering the motion.

We agree. As a threshold matter, the district court seems to have misunderstood the breadth of a remand for resentencing. Absent explicit limitations, an order vacating sentence and remanding for resentencing "directs the sentencing court to begin anew, so that 'fully de novo resentencing' is entirely appropriate." United States v. Smith, 930 F.2d 1450, 1456 (10th Cir.), cert. denied, 112 S. Ct. 225 (1991); see also United States v. Sanchez Solis, 882 F.2d 693, 699 (2d Cir. 1989) (on remand for resentencing, court may "take new matter into account" and "need not consider whether the Government has waived its right to request [obstruction-of-justice enhancement]"); cf. United States v. Cornelius, 968 F.2d 703, 705 (8th Cir. 1992) ("Once a sentence has been vacated or a finding related to sentencing has been reversed and the case has been remanded for resentencing, the district court can hear any relevant evidence on that issue that it could have heard in the first hearing.").

The district court's authority to entertain the Government's motion was particularly clear in this case, for two reasons. First, the motion rested on evidence that had been presented at the original sentencing: the drug quantities reflected in the trial and the presentence report. Second, our earlier opinion in Midgett I imposed no limitations or restrictions on the scope of our remand for resentencing. On the contrary, we expressly raised the possibility of an upward departure based on drug quantity. See 972 F.2d at 67 ("That is not to say that drug quantities may never be considered in fashioning an appropriate sentence for a § 856(a) offense. The district court could have approached this sentencing as an upward departure case." (dictum) ).²  We were, of course, careful to "express no opinion" on the merits of an upward departure motion based on drug quantity, see id., and we repeat that disclaimer today. We hold not that the Government is entitled to an upward departure, but that it is entitled to have the district court consider such a departure.³ 

CONCLUSION

For the reasons stated herein, we vacate the sentence imposed below and remand for resentencing. At resentencing, the district court should rule on the merits of the Government's motion for an upward departure.

VACATED AND REMANDED