to be adjourned repeatedly while defendants "complete" their cooperation. This practice makes clear not only that post-arrest conduct can be considered at sentencing, but that the timing of sentencing can be used to influence the very conduct that is to be considered.
D. Support in court of appeals opinions for the rule that courts must consider all facts and circumstances known at the time of sentencing
"Every . . . circuit" that has considered the question has held that courts can consider "a defendant's post-offense, pre-sentence conduct" at sentencing. United States v. Myers, 41 F.3d 531, 533 (9th Cir. 1994) (citing, inter alia, United States v. Keats, 937 F.2d 58, 66 (2d Cir.), cert. denied, 502 U.S. 950, 116 L. Ed. 2d 348, 112 S. Ct. 399 (1991)). Keats, holding that a defendant's criminal history category can be increased to reflect post-arrest conduct, is discussed in Part III.D.2, infra.
1. Post-offense conduct and Guidelines departures
The courts of appeals have recognized that post-offense conduct can constitute grounds for departure. For example, post-arrest "drug rehabilitation [is] a permissible ground for departure." United States v. Maier, 975 F.2d 944, 949 (2d Cir. 1992); cf. United States v. Maddalena, 893 F.2d 815, 818 (6th Cir. 1989). But see United States v. Ziegler, 1 F.3d 1044, 1047-48 (10th Cir. 1993) (post-arrest rehabilitation not valid grounds for departure, but may be considered under "acceptance of responsibility" provision of Guidelines).
In Maier, the leading case on post-offense rehabilitation in the Second Circuit, the defendant's sentencing was postponed for more than a year while she obtained drug treatment. The court of appeals found the adjournments -- and the subsequent departure -- to be proper. Cf. United States v. Antone No. 91-10417, 1992 U.S. App. LEXIS 13569, at *4 (9th Cir. June 3, 1992) (court may consider post-offense good behavior in calculating discretionary departure); United States v. Barry, 295 U.S. App. D.C. 173, 961 F.2d 260, 266 (D.C. Cir. 1992) (approving resentencing when the district court permitted defendant to provide "updated information concerning his rehabilitation efforts and the community service he had performed between the first and second sentencings").
2. Post-offense conduct and Criminal History
The court of appeals for the Second Circuit has held that criminal history scores can be adjusted to account for post-offense conduct. See United States v. Keats, 937 F.2d 58, 66 (2d Cir.) (criminal history category can be increased to reflect post-arrest conduct), cert. denied, 502 U.S. 950, 116 L. Ed. 2d 348, 112 S. Ct. 399 (1991); United States v. Espinal, 981 F.2d 664 (2d Cir. 1992) (same). At least five other circuits have reached the same conclusion. See United States v. Fayette, 895 F.2d 1375, 1380 (11th Cir. 1990); United States v. Geiger, 891 F.2d 512 (5th Cir. 1989), cert. denied, 494 U.S. 1087, 108 L. Ed. 2d 954, 110 S. Ct. 1825 (1990); United States v. Franklin, 902 F.2d 501 (7th Cir.), cert. denied, 498 U.S. 906, 111 S. Ct. 274, 112 L. Ed. 2d 229 (1990); United States v. White, 893 F.2d 276 (10th Cir. 1990); United States v. McCarthy, 961 F.2d 972, 979 (1st Cir. 1992) (specific deterrence and recidivism concerns justify "factoring . . . post-plea offenses into guidelines sentencing process"). These holdings support the proposition that relevant conduct is not limited to conduct that precedes determination of guilt.
E. Application at resentencing of rule that courts must consider all facts and circumstances known at the time of sentencing
1. A resentence is a sentence
An order vacating a sentence requires the district judge to resentence as if sentencing de novo. United States v. Maldonado, 996 F.2d 598, 599 (2d Cir. 1993) ("When a sentence has been vacated, the defendant is placed in the same position as if he had never been sentenced."); cf. United States v. Strachan, No. 93-30004, 1994 U.S. App. LEXIS 2408, at *3 (9th Cir. Feb. 1, 1994) (when sentence vacated and remanded, remand "wiped the slate clean and the district court was required to sentence from scratch on a tabula rasa"). Although Maldonado concerned application of Rule 32 of the Federal Rules of Criminal Procedure, there is no "reason why vacating a sentence on any other ground should have a different legal significance." United States v. Ekhator, 853 F. Supp. 630, 633 (E.D.N.Y. 1994). To hold otherwise would ignore the meaning of "vacate," both in plain usage and as it has been explicated in the case law in this circuit. See, e.g., United States v. Ekwunoh, 888 F. Supp. 369, 1994 U.S. Dist. LEXIS 17948, at *7 (E.D.N.Y. 1994) ("An order vacating a sentence requires the trial court to sentence de novo."). Other circuits are in agreement with the Second Circuit approach. See, e.g., United States v. Graham, No. 91-6681, 1993 U.S. App. LEXIS 6815, at *3 (4th Cir. 1993) (vacation of a sentence entails de novo resentencing unless the remanding court gives narrowing instructions). To differentiate between sentencing and resentencing would preclude consistent application of other rules pertaining to sentencing when they arise in the resentencing context. See, e.g., United States v. Pfeiffer, 886 F. Supp. 303 (E.D.N.Y. 1995) (consistent application of bail provisions of 18 U.S.C. § 3143 requires treatment of a resentence as a sentence); cf. United States v. Taylor, 11 F.3d 149, 152 (11th Cir. 1994) (holding that Federal Rule of Criminal Procedure 43, mandating presence of defendant at sentencing, applies to resentence); Paul v. United States, 734 F.2d 1064, 1066-67 (5th Cir. 1984) (same).
2. Judge must use all information available up until time of resentence
Given that a resentence is a sentence, a judge can and must consider all information available to him or her at the time of resentence. In the 1990's, because of the Guidelines, remands for resentencing are common. See United States Sentencing Commission, Annual Report 1994 133-48 (1995).
Appellate review of sentencing decisions constitutes a considerable fraction of the appellate court's workload. See Federal Judicial Center, Guideline Sentencing: An Outline of Appellate Case Law on Selected Issues (April 1995) (describing more than 1,900 reported court of appeals cases interpreting Guidelines in last seven years); Daniel Wise, After Five Years, No One Loves the Federal Sentencing Guidelines; Prosecutors Complain of More Work; Defenders See Rules Altering Practice, N.Y.L.J., Nov. 4, 1992, at 1 (describing "significant upsurge" in appeals of sentences in the wake of Guidelines); see also Anthony N. Doob, The United States Sentencing Commission Guidelines: If You Don't Know Where You Are Going, You Might Not Get There, in The Politics of Sentencing Reform 199, 250 (1995) ("The United States Sentencing Commission has performed an important function. It has demonstrated for better or worse that sentencing practice can be changed rather dramatically in a short period of time."). The number of unpublished opinions in this area is particularly great, so that an estimate of scores of cases remanded annually for resentencing in the Second Circuit is conservative.
In the pre-Guidelines era, appellate review of district court sentencing decisions was exceedingly rare. In 1962, a member of the Second Circuit Court of Appeals observed that:
At present, there is virtually no appellate review of criminal sentences in federal courts. . . . Prior to 1891, the old circuit courts had power to correct harsh sentences on appeal . . . . But the language of the 1891 statute creating the new appellate courts was thought to "repeal" that grant of authority; and since 1891 federal upper courts have generally denied themselves any power to revise sentences.