No Expectation of Finality in Served Sentences Under Appeal: Double Jeopardy, Due Process, and Law of the Case in Resentencing

Introduction

United States v. John Jackson, 3d Cir. No. 23-2508 (Mar. 21, 2025), addresses the question whether defendants who have completed service of an original sentence—while that sentence remains under appeal—enjoy any constitutional protection against resentencing once the appellate court vacates the sentence and remands for resentencing. In this trilogy of appeals (Jackson I, Jackson II, Jackson III), Carolyn and John Jackson were convicted in federal court under the Assimilative Crimes Act of numerous counts of child abuse and endangerment. After three rounds of appeals and resentencings before Judge Katharine Hayden, the Third Circuit vacated their sentences for a third time (Jackson III) on statutory and procedural grounds and directed reassignment to a different judge. On remand, Judge Susan Wigenton prepared new Presentence Reports and imposed longer prison terms. The Jacksons appealed again, arguing that (1) resentencing after they had already served their prior terms violates the Double Jeopardy and Due Process Clauses, (2) the Sixth and Fifth Amendments bar judicial fact-finding at sentencing when it raises a Guidelines range, (3) the law of the case compelled a different outcome on certain sentencing issues, and (4) the resulting sentences were procedurally and substantively unreasonable.

Summary of the Judgment

The Third Circuit affirmed. It held (1) no Apprendi-type violation occurred when the district court made factual findings by a preponderance of the evidence to apply an aggravated‐assault Guideline so long as the sentence remained below the statutory maximum; (2) defendants under appeal “have no reasonable expectation of finality” in their sentence until direct review concludes or the time to appeal expires, even if they have already served the original term—hence resentencing does not violate Double Jeopardy or Due Process; (3) once a sentence is vacated, there is no “law of the case” on sentencing issues and the reassigned judge may reassess all contested facts and guideline applications; and (4) the new sentences were both procedurally and substantively reasonable under 18 U.S.C. § 3553(a).

Analysis

1. Precedents Cited

Apprendi v. New Jersey, 530 U.S. 466 (2000): Jury must find beyond a reasonable doubt any fact that increases the statutory maximum. The court reaffirmed that judicial fact‐finding remains permissible when the sentence stays below that maximum.
Alleyne v. United States, 570 U.S. 99 (2013): Extended Apprendi to mandatory minimum enhancements, but did not disturb judicial fact‐finding for guideline ranges not affecting statutory bounds.
United States v. DiFrancesco, 449 U.S. 117 (1980): Held that resentencing after vacatur does not violate Double Jeopardy because the defendant’s “reasonable expectation of finality” in an appealed sentence only arises after direct review ends or the appeal period lapses.
United States v. McMillen, 917 F.2d 773 (3d Cir. 1990): Reiterated that no expectation of finality arises while a sentence remains appealable; left open the narrow question whether a fully served sentence might be final if appeal time has expired.
United States v. Fisher, 502 F.3d 293 (3d Cir. 2007) and United States v. Gonzalez, 905 F.3d 165 (3d Cir. 2018): Confirmed that judicial fact‐finding at sentencing for Guidelines calculations does not trigger Apprendi concerns unless it increases the statutory maximum or minimum.

2. Legal Reasoning

(a) SENTENCING FACTS AND THE FIFTH/SIXTH AMENDMENTS. The court reiterated that judicial fact‐finding under the preponderance standard to compute advisory Guidelines—so long as neither the statutory maximum nor mandatory minimum is raised—does not offend the jury‐trial or due process guarantees (citing Apprendi, Fisher, Gonzalez).

(b) DOUBLE JEOPARDY AND DUE PROCESS. The Third Circuit applied DiFrancesco and its progeny to hold that a sentence under appeal (and subject to appellate vacatur) is not final, regardless of whether the defendant has physically completed service of the term. No “reasonable expectation of finality” ever attaches while appellate review remains open. Consequently, the Double Jeopardy Clause does not bar resentencing, and due process is not otherwise violated.

(c) LAW OF THE CASE. Once this Court vacated the prior sentences in Jackson III, the district court’s earlier sentencing determinations ceased to be binding law of the case. A vacated sentence leaves the defendant unsentenced, and the reassigned judge may re-evaluate any contested sentencing facts and guideline applications de novo.

(d) REASONABLENESS REVIEW. The Third Circuit conducted both procedural and substantive reasonableness review under Tomko, Grier, and Raia. It found no procedural error—any Guidelines misapplication was harmless because the court announced an alternative sentencing analysis—and no abuse of discretion in the final terms imposed.

3. Impact

Reinforces that all sentencing facts under the advisory Guidelines can be found by judges by a preponderance so long as statutory floors and ceilings remain intact.
Establishes unambiguously in the Third Circuit that served sentences under direct appeal carry no finality protection; defendants cannot escape resentencing—even after full confinement—if the original judgment is vacated.
Clarifies that the law‐of‐the‐case doctrine yields fully upon appellate vacatur of a sentence; reassigned judges are free to revisit earlier fact findings and guideline groupings.
Limits the potential for “windfalls” where defendants might otherwise benefit from sentencing errors by premature release and the passage of time.

Complex Concepts Simplified

Apprendi Principle: “Any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.”
Advisory Guidelines Fact-Finding: Judges may use the preponderance of the evidence standard to allocate offense levels within an advisory range. Such findings do not threaten Apprendi so long as the statutory maximum/minimum remains unchanged.
Reasonable Expectation of Finality: For constitutional protection against double jeopardy, a sentence must have become sufficiently firm that a defendant reasonably believes it will not be altered. Under DiFrancesco, this only happens after the direct‐appeal process ends or the appeal window closes.
Law of the Case: A court’s prior rulings normally govern later stages of the same litigation. But once a sentence is vacated on appeal, the defendant is treated as if unsentenced—thus there is no binding law of the case on sentencing issues.

Conclusion

United States v. John Jackson crystallizes three key rules for federal sentencing practice in the Third Circuit:

Judicial fact-finding for advisory Guidelines remains constitutional so long as no statutory maximum or minimum is raised;
Defendants under direct appeal have no protected expectation of finality in their sentences—even if fully served—so resentencing after vacatur does not violate Double Jeopardy or Due Process; and
Once an appellate court vacates a sentence, the previously imposed terms and fact findings lose their binding effect under the law of the case.

By affirming the resentencings, the Third Circuit ensures that sentencing errors can be corrected without yielding to unfair shortcuts or procedural loopholes, and it provides clear guidance to district courts and practitioners on the proper scope of resentencing authority.