However, when a case is remanded with instructions to clarify the bases for the sentence, without actually vacating it, the district court need not necessarily begin the sentencing process anew. See United States v. Ekhator, 853 F. Supp. 630, 634 - 636 (E.D.N.Y. 1994).
This distinction is reflected in 18 U.S.C. § 3742, entitled "Review of a Sentence", which distinguishes between sentences imposed as a result of an incorrect application of the sentencing guidelines, versus those sentences that are outside the applicable guideline range and/or are unreasonable. See 18 U.S.C. § 3742(e)(2), (3). Those sentences imposed as a result of an incorrect application of the sentencing guidelines are to be remanded "for further sentencing proceedings with such instructions as the court considers appropriate." 18 U.S.C. § 3742(f)(1). Those sentences which are outside the applicable guideline range and/or are unreasonable are to be "set aside" and remanded for further sentencing proceedings with such instructions as the court considers appropriate. 18 U.S.C. § 3742(f)(2). This statute "thus reflects a clear distinction between remanding for further sentencing proceedings and setting aside (i.e., vacating) a sentence." Ekhator, 853 F. Supp. at 636.
In this case, Moloney's sentence was not vacated in whole or in part by the Court of Appeals. Thus, it is not incumbent upon me to begin sentencing proceedings anew. Rather, the Court of Appeals remanded this case to me for factual findings and resentencing if necessary.
Set forth below, and based upon the evidence adduced at trial, are the requisite factual findings supporting the enhancement. Because I have come to the same determination as I previously did regarding the enhancement and sentence, no resentencing is necessary. And because no resentencing is necessary, no second hearing is required.
See United States v. Rivers, 50 F.3d 1126, 1132 (2d Cir. 1995)(finding that, on remand, if district court could clarify in a written statement that it had correctly applied Guidelines standards, no hearing was necessary); United States v. Naugle, 879 F. Supp. 262 (E.D.N.Y.)(on remand, district court explained its application of the Guidelines to the facts of the case, thus affirming its earlier sentence absent additional hearing), aff'd, 54 F.3d 765 (2d Cir. 1995); see also United States v. Miller, 900 F.2d 919, 925 (6th Cir. 1990)(although district court failed to state explicitly the statutory factors it relied upon at sentencing, correction could be made on motion of the parties and no new sentencing hearing was required).
United States v. Rivers is instructive. There, the Circuit remanded the case so that the district court could clarify two things: whether it had applied the correct version of the Guidelines (concerning unrelated offenses); and whether it understood its discretion to make a downward departure. The Circuit stated that "remand is necessary in this case primarily because the record leaves us uncertain as to the bases for the District Court's resolution of the two issues discussed above." 50 F.3d at 1132. The Circuit further stated that:
the District Court's first step on remand should be to clarify its previous actions. If these clarifications reveal that the District Judge employed the correct legal standard [concerning prior offenses] and understood his discretion to depart vertically from the career offender offense level, then the sentence as imposed should remain in force, and no further action need be taken... . The clarification may be made either by filing a brief written statement or placing an explanation on the record... . We note that such clarification would not require Rivers's presence because no resentencing would occur. Id. (Emphasis added) (Citations omitted)
This case calls for just such a clarification. A hearing was held when Moloney was sentenced in February 1995. At that time Moloney had an opportunity to object to recommendations contained in the PSI -- including the recommended Section 2B1.1(b)(7)(B) enhancement -- and he did so. Because this Decision and Order merely clarifies the bases for Moloney's sentence (all of which bases arose from evidence produced at trial and, thus, existed at the sentencing), the sentence should remain in force, and no further action need be taken.
B) The Trial Evidence Demonstrates That Moloney Individually Derived Over $ 1 Million from the Offense
Based upon the evidence produced at trial, I find that Moloney individually derived over one million dollars from the offense. To the extent my language during the sentencing proceeding did not make this clear, it was an unfortunate choice of words. However, the evidence produced at trial clearly demonstrates that Moloney individually derived such sum of money, and I now correct the record to reflect this finding.
At Moloney's sentencing, I articulated generally the numerous pieces of evidence on which my sentence was based:
The evidence concerning the renting of the apartment 10D on 330 First Avenue, the discovery of the money, over two million dollars, your connection to that apartment with fingerprints and hair samples, suitcases stacked with money, suitcases with your name on it, tapes of your repeated visits to apartment 10D, evidence that the jury saw of your carrying packs, on at least one occasion, November the 6th, 1993, a witness observed what appeared to be packets of money in back packs, the carrying of a money counter into that apartment, a carrying of card tables into that apartment, evidence from an FBI agent that she heard the money counter being used after you had entered the apartment, over a hundred and eighty thousand dollars found in your own residence in cash or travelers checks, evidence of cash expenditures to relatives and friends in several thousands of dollars, evidence of an attempt to deposit twenty-one thousand dollars in a Florida bank but declining based on the information that there would be report of that, substantial proof about your association with Mr. Millar, various other cash purchases, either separately or together with Mr. Millar relating to automobiles, homes, all of that together with your prior acts of good work must be considered by the Court. Transcript of Sentencing, February 27, 1995, at 77-78.