Judge May Have Been Vindictive, 9th Circuit Says Jason Hoppin The Recorder 01-06-2004 The 9th U.S. Circuit Court of Appeals chastised a San Diego federal judge last week for doubling the sentence of a woman who had been partly successful on appeal. Although Senior U.S. District Judge Rudi Brewster initially sentenced Fatima Peyton to 15 months for her role in an identity theft ring, he doubled that sentence on remand -- even though the 9th Circuit had thrown out six of the eight guilty verdicts against her. During the second sentencing, Brewster added an obstruction of justice enhancement that he had rejected in the first sentencing while increasing the amount of financial loss attributed to Peyton. Unanimously, the 9th Circuit said there was no evidence rebutting the presumption that the added enhancement was vindictive. The panel was divided in upholding the higher loss calculation, reasoning that some of the legal issues surrounding loss calculations had been unclear during the first sentencing. So Peyton is still likely to face a stiffer sentence than 15 months. "We ordered a general remand for resentencing; thus, the district court was free to re-examine the relevant conduct issue anew," Judge Richard Tallman wrote. He was joined by Judge Johnnie Rawlinson. But Senior Judge John Noonan dissented, saying a twice-as-long sentence can only be seen as vindictive. "Win your appeal and double your sentence," he wrote. "This cannot be our motto or that of any judicial body interested in doing justice. "The process due every defendant has been violated by the district court in violation of the Fifth Amendment." If the decision stands, Peyton may be sent back to jail. Angela Krueger, her lawyer, said Peyton has completed one stint in jail and is currently on probation. Krueger, with Federal Defenders of San Diego Inc., said Brewster's reputation isn't that of someone eager to send people off to jail. "Sometimes he can be really merciful, and sometimes not," Kreuger said. "You're never sure what you're going to get with Judge Brewster." Krueger said she is likely to ask the panel to reconsider the case. In 2002, a different panel unanimously reversed six jury verdicts against Peyton. She had been accused of participating in a credit card theft ring. She was not retried on those counts. But several of the credit card accounts Peyton was convicted of manipulating had different account numbers than those in the original indictment. The panel reversed on that basis. Assistant U.S. Attorney Steve Miller, who handled the case, could not be reached for comment. Unless the 9th Circuit reconsiders the ruling, the case will be sent back to Brewster once again for resentencing -- without the enhancement for obstruction. Krueger asked the panel to have the case reassigned to a different judge, but it declined. "We are confident [Judge Brewster] will conscientiously discharge his sentencing duties in conformance with our mandate," Tallman wrote.

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