Post-Conviction Relief for Immigrants

(C)  Exercise of Right to Appeal.  Due process is violated if a defendant is sentenced more harshly upon re-conviction in retaliation for exercising the right to appeal following a successful appellate attack based on vindictive motives.[287]  There is a rebuttable presumption of judicial vindictiveness whenever a harsher sentence is imposed after a successful appeal and “there is a ‘reasonable likelihood’ that the increase in sentence is the product of actual vindictiveness on the part of the sentencing authority.”[288]  The presumption may only be overcome by evidence placed on the record by the sentencing judge in support of the claim that factors, events or conduct occurred after the first sentence that justify imposition of greater punishment than was originally imposed.[289]  No presumption of vindictiveness arises, however, when the first sentence was based upon a guilty plea, and the second followed a jury trial.[290]

[287] See North Carolina v. Pearce, 395 U.S. 711 (1969); United States v. Peyton, 353 F.3d 1080 (9th Cir. Dec. 31, 2003) (where court imposed twice a long a sentence after a successful appeal resulted in reversal of six of eight convictions, court of appeal held the record does not rebut presumption that district judge acted in a vindictive manner by applying obstruction of justice enhancement on resentencing after he had considered, but rejected, this enhancement at the original sentencing); Nulph v. Cook, 333 F.3d 1052, 1057 (9th Cir. 2003); United States v. Garcia-Guizar, 234 F.3d 483, 489 (9th Cir. 2000) (holding that the Pearce presumption applies to resentencings as well as retrials); People v. Williams, 61 Cal.App.4th 649 (1998); People v. Henderson, 60 Cal.2d 482 (1963). 

[288] Pearce, supra, at 799 (citation omitted). 

[289] Ibid. 

[290] Alabama v. Smith, 490 U.S. 794 (1989).