In United States v. Heath Powers, 15-3867, the Second Circuit (Cabranes, Pooler, Parker) issued a per curiam decision remanding to the U.S. District Court for the Northern District of New York (D’Agostino, J.) with instructions to vacate an erroneous count of conviction on a child pornography charge and for de novo resentencing. The defendant had been charged by a federal grand jury of eleven counts of production of child pornography, one count of distribution of child pornography, and one count of possession of child pornography. The Court’s description of the underlying facts indicated that the defendant also engaged in sexual acts with the seven-year old girl he had photographed. After the defendant pleaded guilty to all counts, the district court sentenced him to a below-Guidelines 480-month term of imprisonment, which included terms of imprisonment on each count, all to be served concurrently.

On appeal, the defendant argued –and the Government conceded – that there was no factual basis for the plea as to one of the counts of production of child pornography, and that it was plain error for the court to have accepted the plea as to that count.[1] The point of dispute between the defendant and the Government was the proper remedy in light of that error. The Government argued that the district court could simply enter an amended judgment and that resentencing was unnecessary.

The Second Circuit disagreed, citing its decision in United States v. Rigas, 583 F.3d 108 (2d Cir. 2009), which clarified that the rule in appeals involving “conviction errors” – as opposed to simply “sentencing errors” – was de novo resentencing by the district court. Although subsequent references to the rule set forth in Rigas were, the panel acknowledged, somewhat “ambiguous,” it remains the rule that where a conviction is partially or completely vacated on appeal, de novo resentencing by the district court is required. The only exception to this rule is when the defendant received, as the sentence on an upheld count of conviction, a mandatory minimum sentence. Under those circumstances, the amendment of the judgment is “strictly ministerial,” and resentencing is unnecessary.

Because the district court’s error here was a “conviction error” resulting in a partial vacatur of a conviction and because the defendant was not given a mandatory minimum sentence, the case had to be remanded to the district court for de novo resentencing; it was not sufficient to enter an amended judgment reflecting the remaining counts and the original sentence. It is positive that the Circuit resolved the ambiguity in its decisional law, and the rule is a fair one. In many cases, the vacatur of one count might change the district court’s view of the correct sentence to impose, and the cost to the system of sending the case back for resentencing is relatively minimal.