CA1: First misses an opportunity to take vindictiveness issue seriously

US v. Jenkins, No. 07-1814 (unpublished) (7/18/08) affirms a sentence.  However, the raises an unpreserved issue of prosecutorial vindictiveness.  “According to Defendant, the government sought to penalize Defendant for refusing to accept a plea offer requiring Defendant to waive his right to appeal his sentence.”  Even though I don’t think that the government was behaving vindictively, the First doesn’t take the issue seriously.

It says that the “waiver of the right to appeal represents just another bargaining chip in the plea bargaining process, a process that "flows from the mutuality of advantage to defendants and prosecutors, each with his own reasons for wanting to avoid trial and/or appeal.”  Then, it declares that just because the defendant didn’t present an actual “factual” basis for a finding of vindictiveness there was none.  But, it is pretty obvious that the First isn’t taking this issue seriously.  Obviously, a prosecutor COULD be vindictive.  But, it isn’t clear whether the First even thinks there is a remedy for that, and what sort of indicia would support such a claim.

The First does make a couple of interesting points about recent sentencing jurisprudence:

of the three decisions cited by Defendant, only Kimbrough addresses a district court's decision-making. Rita and Gall are directed to the decision-making of an appellate court

However, in the end, the First rejects the idea that the District Court felt constrained by the guidelines.  However, because this is a crack case, he gets  remand to file “a motion for reduction in sentence pursuant to the recent Guidelines amendment that lowers the sentencing range for certain categories of offenses involving crack cocaine. U.S.S.G. Amend. 706.”