Really? Interest of Justice Sentencing Remands in Federal Appellate Courts?

Yes, Virginia, There is Interest of Justice Remand Authority in Federal Appellate Courts

Conventional wisdom suggests that federal appellate courts can only order district courts to reconsider an allegedly excessive sentence if it violates substantive due process, not simply because a sentence reduction may be in the "interest of justice."

Not so. 28 U.S.C. § 2106 provides:

The Supreme Court or any other court of appellate jurisdiction may affirm, modify, vacate, set aside or reverse any judgment, decree, or order of a court lawfully brought before it for review, and may remand the cause and direct the entry of such appropriate judgment, decree, or order, or require such further proceedings to be had as may be just under the circumstances.

28 U.S.C. § 2106 (emphasis added). The Supreme Court has recognized that this statute gives courts "power to do justice as the case requires." Tinder v. U.S., 345 U.S. 565, 570 (1953). Circuit courts have interpreted this provision as authorizing both limited remands to address specific issues and general remands for complete resentencing. United States v. Claybron, 88 F.4th 1226 (7th Cir. 2023) (reconsideration of sentence in light of retroactive guidelines Amendment 821, which reduced from two to one number of additional criminal history points defendant was to receive when offense of conviction was committed while under any criminal justice sentence); United States v. Adams, 746 F.3d 734 (7th Cir. 2014) (limited remand under § 2106).

Second Circuit Support

The Second Circuit has invoked § 2106 for the specific purpose of remanding to reconsider an arguably excessive sentence in the interest of justice.

In United States v. Jones, 878 F.3d 10 (2d Cir. 2017, amended October 5, 2017), the defendant was sentenced to 15 years for biting a federal marshal tasked with returning him to prison after he violated the rules of his halfway house by verbally threatening a staff member. The court rejected the defendant's argument that the sentence violated substantive due process, observing that the district court had properly relied, inter alia, on defendant's lengthy criminal and prison history. Nonetheless, the court recognized the arguably excessive length of the sentence, given that the officer suffered no permanent damage.

Therefore, although it affirmed the sentence against the defendant's substantive due process attack the court remanded "for further consideration as may be just under the circumstances." In his concurring opinion, Judge Calabresi, joined by Judge Peter Hall, explained:

After our opinion was issued, it was called to our attention that 28 U.S.C. § 2106 permits affirmances and remands for further proceedings in the interest of justice, and has been applied in criminal situations, United States v. Guiliano, 644 F.2d 85, 89 (2d Cir. 1981); United States v. Robin, 553 F.2d 8 (2d Cir. 1977) (en banc); see also United States v. Algahaim, 842 F.3d 796, 800 (2d Cir. 2016) (affirming a sentence but remanding for further consideration of that sentence, without making express reference to § 2106). We have now altered our disposition in this case to that effect. This altered disposition may permit the district court to reconsider the sentence imposed and thereby go a long way to avoid the absurdity, which this opinion has suggested.

Id., 878 F.3d at 24 n. 6 (Calabrisi, J., concurring). Robin, cited in Jones, invoked § 2106 as authority to remand a case to a different judge and (as noted in Jones) Algahaim remanded for further consideration of sentence without actually invoking § 2106.

More recently, in United States v. Rainford, 110 F.4th 455 (2d Cir. 2024) (Menashi), the court held that the third of three defendants was entitled to a remand for the district court to reconsider his sentence of imprisonment because, even though all three defendants were sentenced on the same day, the district court reconsidered and reduced the co-defendants’ sentences at post-sentencing hearings, but did not reconsider the third defendant's sentence.

Support in Other Circuits

Courts outside the Second Circuit have also invoked § 2106 to remand for resentencing. The Third Circuit in United States v. Martinez, 137 F.4th 858 (3d Cir. 2025), held that when a defendant was entitled to seek relief under a retroactive Guidelines provision through a § 3582(c)(2) motion, the court may exercise its discretion under § 2106 to vacate the sentence and remand for resentencing on direct appeal, rather than requiring the defendant to initiate a new proceeding The court determined that vacating the sentence and ordering remand "served the interest of justice by ensuring that she was sentenced expeditiously under Guidelines applicable to her" and promoted judicial efficiency by eliminating the necessity of a separate motion for sentence reduction.

In United States v. Claybron (cited above) the Seventh Circuit exercised its § 2106 discretion to remand for limited resentencing even though the district court committed no error. The court held that "the post-sentencing proposal and enactment of retroactive Amendment 821 warrants a § 2106 remand and limited resentencing" on the defendant's robbery convictions. The court emphasized that § 2106 gives discretion to "remand a cause and require such further proceedings to be had as may be just under the circumstances" and that remand under the statute "is not limited to when the district court errs or when a full resentencing is needed."

Nothing Ventured Nothing Gained

Although § 2106 has rarely been invoked to remand a case to reconsider a sentence deemed possibly excessive though not illegal, its use in cases such as Jones and Rainford reflect its applicability to excessive sentencing cases. Thus whenever appellate counsel believes a sentence is demonstrably excessive, even if not a violation of substantive due process, counsel should invoke court's interest of justice jurisdiction under § 2106 to seek a remand for resentencing.

Richard Levitt

Levitt & Kaizer

(212) 480-4000