Appeal from the United States District Court for the Eastern District of Pennsylvania
Aldisert, Higginbotham and Sloviter, Circuit Judges.
HIGGINBOTHAM, A. LEON, JR., Circuit Judge.
The present case involves an appeal from a criminal conviction for distribution of heroin and aiding and abetting the distribution of heroin, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Defendant-appellant Mildred Carrasquillo asserts that the district court erred in imposing an increased sentence following her reconviction after her original conviction had been reversed as the result of a successful appeal. This court must consider whether the reasons articulated by the district court to justify the increased sentence are constitutionally permissible considerations under the due process requirements of North Carolina v. Pearce, 395 U.S. 711, 23 L. Ed. 2d 656, 89 S. Ct. 2072 (1969).
We conclude that the reasons articulated by the district court do not comport with the standard set forth in Pearce and will therefore vacate the sentence below and remand the matter for resentencing.
Various aspects of this case have been before us on two previous occasions. On November 1, 1980, Mildred Carrasquillo ("Carrasquillo"), pursuant to the rule of United States v. Zudick, 523 F.2d 848 (3d Cir. 1975),*fn1 entered a conditional guilty plea to two counts of an indictment charging her with distribution of heroin in violation of 21 U.S.C. § 841 (a)(1), and aiding and abetting that crime in violation of 18 U.S.C. § 2. On December 22, 1980, Judge McGlynn sentenced Carrasquillo to concurrent three-year prison terms to be followed by a special parole term of three years.
In United States v. Carrasquillo, 667 F.2d 382 (3d Cir. 1981), this court reversed the judgment and remanded the matter with directions that the district court determine whether the indictment should be dismissed with or without prejudice for violation of the Speedy Trial Act, 18 U.S.C. § 3162(a)(2). Judge McGlynn subsequently determined that the indictment should be dismissed without prejudice.
The United States then filed an information charging Carrasquillo in two counts with viiolating 21 U.S.C. § 841(a)(1), alleging the same two incidents to which she had pleaded guilty in 1980. Upon defendant's motion that Judge McGlynn recuse himself, the case was transferred to another judge.
Carrasquillo again entered a plea of guilty to the two counts on September 14, 1982, and following a hearing on November 16, 1982, was sentenced to a twelve-year prison term on Count I, with parole eligibility to be determined pursuant to 18 U.S.C. § 4205(b)(2), and to be followed by three years of special parole. On Count II, the execution of a fifteen-year term of imprisonment was suspended and a five-year probationary term was imposed to run consecutively to the prison term under Count I.
Carrasquillo appealed to this court challenging the validity of the sentence imposed upon reconviction inasmuch as it exceeded the original 1980 sentence by nine additional years of imprisonment and because the district court did not articulate reasons for the increase. Pursuant to the consent of both the United States Attorney and counsel for the defendant to remand this case, our court issued an order in United States v. Carrasquillo, C.A. No. 82-1764, directing the district court either to resentence Carrasquillo to a term not in excess of the original sentence or, alternatively, to articulate the reasons for an increase in sentence.
On June 20, 1983, the district judge explained the reasons underlying the difference between the December 22, 1980 sentence of Judge McGlynn and his November 16, 1982 sentence. He stated that the November 16, 1982 sentence was not a "harsher" or "longer" term that the original December 22, 1980 sentence, but constituted a restructuring of Judge McGlynn's earlier sentence. Appendix ("App.") at 6-7. He further stated that even assuming arguendo that the second sentence was more onerous, Carrasquillo's continued involvement and association with drug-related activities, as inferred from three intervening arrests on drug charges, in combination with her continued abuse of narcotic, sufficed as ...