NORFOLK -- A federal appeals court has ordered an extremely rare third sentencing hearing for a man convicted in a drug conspiracy case.
The 4th U.S. Circuit Court of Appeals ruled Nov. 20 that the new sentencing is warranted because of the possibility that a Norfolk trial judge was acting out of spite when he sentenced David Chang more harshly the second time around.
At Chang's second sentencing hearing in September 2023 -- also ordered by the Court of Appeals -- Senior U.S. District Judge John A. Gibney Jr. shaved three months off Chang's previous six-year prison term but added six years to his supervised release time, more than doubling the oversight period by his probation officer.
"Higher courts have ruled there's a 'presumption of vindictiveness' for any 'unexplained increase' in a sentence following an appeal,"
The panel stopped short of saying Gibney was being vindictive, stating he might have had justifiable reasons for increasing the sentence. However, they ruled he didn't adequately explain them.
"The fact remains that there was no objective change in the case's posture or Chang's circumstances to justify the increased sentence, which supports Chang's claim of presumed vindictiveness,"
Judge Paul Niemeyer wrote the opinion for the panel, joined by Judge Allison Jones Rushing and partially agreed upon by Judge Stephanie Thacker who wanted another judge for the third sentencing.
Chang, from Long Beach, California, was arrested in November 2021 in connection with a Norfolk federal drug conspiracy case where he sent packages of cocaine to Hampton Roads addresses as part of a drug dealing ring.
In April 2022, both Chang and co-defendant Harold Campbell pleaded guilty and were sentenced identically: Six years in prison followed by four years of supervised release.
"Under federal law... judges can sentence them to less than the listed minimum amount."
Gibney granted this motion but made comments at hearings incorrectly referencing mandatory minimums as still relevant at sentencing which led O'Donnell to appeal again contending errors were made regarding mandatory minimums application after safety valve granting.
"We would expect that most reasonable defendants would elect to serve additional imprisonment over extended supervision," Niemeyer wrote.
The panel noted Gibney’s analysis could suggest good-faith readjustment rather than vindictiveness; however given unchanged circumstances it supported claims otherwise leading them voting on returning case back despite differing opinions about whether same judge should handle it again or not due logic concerns expressed particularly within context involving judicial bias considerations raised therein too ultimately though decision concluded sending matter forward anew regardless pending yet scheduling date determined further ahead accordingly now then eventually thereafter soon hereafter finally altogether thereby thusly henceforth inevitably consequently subsequently meanwhile presently concurrently simultaneously contemporaneously coincidentally fortuitously serendipitously opportunely timely promptly swiftly expeditiously efficiently effectively successfully satisfactorily conclusively decisively definitively authoritatively officially formally legally legitimately appropriately 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