District court in 2018 sentences carjacking defendant to 195 months' imprisonment. Defendant on appeal: The district court wrongly factored in a bunch of my previous arrests, even though those arrests were not convictions. Gov't: Dude's right. First Circuit (2019): He sure is. Sentence vacated and case remanded for re-sentencing. District court (2020): Welcome back, pal! While your case was on appeal, a couple of those previous arrests led to convictions, so now your criminal-history category is actually higher than it was when I sentenced you the first time. So guess what? Your new sentence is now 240 months. Man appeals. First Circuit (2023): Seriously? The district court doubled down on its error to jack up the sentence. Finding the use of intervening, post-sentencing convictions to boost sentence to be plain error, we will vacate the 240-month sentence. "Sandbagging is not in fashion in this circuit." Remanded for a third sentencing (and while the opinion itself is far too courtly to say so, the accompanying judgment quietly orders that the case be reassigned to a different judge - hoping the third time will be a charm).
The case is United States v. Cheveres-Morales, No. 20-1245 (1st Cir. Sept. 29, 2023) ("Given that the government and the resentencing court converted what was meant to be a path toward a reduced sentence into a costly trap for an unwary defendant, letting that outcome stand would put the judicial system in a poor light." Word.).