United States v. Josh Christopher Plunkett

Opinion by Chief Judge WALLACE.

Plunkett challenges his- 46-month sentence of imprisonment, which was imposed after he violated the terms and conditions of his probation. The district court had jurisdiction pursuant to 18 U.S.C. § 3231 . We have jurisdiction over this timely appeal of the sentence pursuant to 18 U.S.C. § 3742 . We affirm.

I

While serving an unrelated state sentence, Plunkett contacted the Federal Bureau of Investigation (Bureau) and confessed to robbing a bank several years earlier. Bureau officials admitted that without Plunkett’s confession the crime would have remained unsolved. On September 7, 1993, a hearing was held to sentence Plunkett for the crime *518 to which he confessed. In recognition of his voluntary disclosure, the district court departed downward to a base offense level of three and a guideline range of zero to six months. The district court placed Plunkett on probation for five years subject to numerous conditions, including that Plunkett not “purchase, possess, use, distribute or administer any narcotic or other controlled substance. ...”

Nonetheless, on December 15, 1994, the court issued a Warrant and Order to Show Cause as to why…

dissenting:

I dissent from this amendment to our opinion. Simply because section 3565(a) authorizes district judges to resentence upon probation violation does not render the law of the case doctrine inapplicable to all aspects of resentencing. A sentencing court would often wish to avoid reopening certain issues that were resolved at the original sentencing hearing and that have no bearing on resen-tencing but which parties might wish to raise. An example might be a technical dispute concerning a computation of the defendant’s prior offense level. I believe a district court should be free to rely upon the law of the case doctrine to prevent the reopening of such issues. Such reliance would, in no way, limit the district court’s authority under section 3565(a) to reconsider other aspects of sentencing, most particularly downward departures for morally mitigating circumstances which, after probation violation, may no longer be appropriate.

The law of the case doctrine is flexible, even, as the Supreme Court has said, “amorphous.” Arizona v. California, 460 U.S. 605, 618 , 103 S.Ct. 1382, 1391 , 75 L.Ed.2d 318 (1983). The amended language constricts the doctrine to an unnecessary…

94 F.3d 517 UNITED STATES of America, Plaintiff-Appellee, v. Josh Christopher PLUNKETT, Defendant-Appellant. No. 95-30053. United States Court of Appeals, Ninth Circuit. Argued and Submitted Oct. 19, 1995. Decided Jan. 24, 1996. As Amended March 12, 1996. As Amended Aug. 9, 1996. Christopher J. Schatz, Assistant Federal Public Defender, Portland, Oregon, for defendant-appellant. Leslie K. Baker, Assistant United States Attorney, Portland, Oregon, for plaintiff-appellee. Appeal from the United States District Court for the District of Oregon, Helen J. Frye, District Judge, Presiding. Before WALLACE, Chief Judge, D.W. NELSON and BRUNETTI, Circuit Judges. Opinion by Chief Judge WALLACE. WALLACE, Chief Judge: 1 Plunkett challenges his 46-month sentence of imprisonment, which was imposed after he violated the terms and conditions of his probation. The district court had jurisdiction pursuant to 18 U.S.C. § 3231 . We have jurisdiction over this timely appeal of the sentence pursuant to 18 U.S.C. § 3742 . We affirm. 2 * While serving an unrelated state sentence, Plunkett contacted the Federal Bureau of Investigation (Bureau) and confessed to robbing a bank several years…