Whether Petitioner was entitled to a de novo resentencing hearing relative to his challenges to the restitution order following remand from the Sixth Circuit

QUESTION PRESENTED This case raises two question of criminal law and procedure which have yet to be addressed by this Court. The first of which is whether a defendant is entitled to the presumption of a de novo resentencing hearing upon remand by a circuit court. This question has caused a split of authority among the circuit courts. A majority of circuits, including the Sixth, Eighth, Ninth, and Tenth, follow a basic rule that a district court can review sentencing matters de novo unless the remand specifically limits the lower court’s inquiry. United States v. Moore, 131 F.3d 595 (6th Cir. 1997); United States v. Caterino, 29 F.3d 1390 (9th Cir. 1994); United States v. Cornelius, 968 F.2d 703 (8th Cir. 1992); United States v. Smith, 930 F.2d 1450 (10th Cir.), cert. denied, 502 U.S. 879 (1991); United States v. Sanchez Solis, 882 F.2d 693 (2d Cir. 1989). A minority of circuits, including the First, Fifth, Seventh, and D.C. Circuits, disagree with the presumption of de novo consideration on resentencing and hold generally that every remand by its nature limits the district court to review only those issues which led the appellate court to order the remand. United States v. Ticchiarelli, 171 F.3d 24 (1st Cir. 1999); United States v. Marmolejo, 139 F.3d 528, 531 (Sth Cir.), cert. denied, 525 U.S. 1056 (1998); United States v. Parker, 101 F.3d 527 (7th Cir. 1996); United States v. Whren, 111 F.3d 956 (D.C. Cir. 1997). Thus, the question of first impression now presented to this Court is: I. Whether Petitioner was entitled to a de novo resentencing hearing relative to his challenges to the restitution order following remand from the Sixth Circuit. The second question presented involves the proper interpretation and application of the Mandatory Victims Restitution Act (“‘MVRA”). In the context of cases involving mortgage fraud, a bank issues mortgages as collateral against real estate. Often times, the victim-banks seek only partial claims of restitution for select properties while foregoing claims of restitution i on other properties. This matter raises the question of how the lower courts should calculate and order restitution in such instances involving partial claims for restitution. Specifically, the question presented herein is: Il. Whether Petitioner was denied the effective assistance of counsel during sentencing where his counsel failed to challenge the Government’s claim for partial restitution which resulted in the imposition of a greater amount of restitution than what was otherwise appropriate under the MVRA. This Court has yet to consider either of the questions presented herein. ii