In an effort to keep Rene Boucher from a second sentencing hearing, his attorney argued in a recent filing with the U.S. Supreme Court that the federal government should not treat sentencing hearings as “dress rehearsals” until it gets the punishment it wants.
Boucher served a 30-day sentence, paid a $10,000 fine and performed community service in association with a guilty plea to a count of assaulting a member of Congress. The case stemmed from his 2017 tackle of U.S. Sen. Rand Paul outside the Republican lawmaker’s house.
Boucher, however, faces the prospect of having to return for another sentencing in U.S. District Court in Bowling Green after federal prosecutors appealed the initial punishment on the grounds that it was too lenient.
The 6th Circuit U.S. Court of Appeals decided in the government’s favor, ruling last year that the 30-day incarceration and fine did not take into account the extent of Paul’s injuries from the assault.
Boucher’s attorney, Matt Baker, petitioned the Supreme Court to hear his appeal of the lower court’s decision, arguing that Boucher’s rights protecting him from double jeopardy would be violated if he were ordered to be sentenced again.
Baker’s position is that the Supreme Court should grant his case a hearing because lower courts are split on when a criminal defendant should expect there to be a sense of finality when a sentence is imposed.
Baker contends that Boucher, by having served his sentence, would be subject to double jeopardy by coming back to the court for another sentencing before Special Judge Marianne Battani, who presided over the criminal case.
“The government is essentially saying that there should be a revolving door installed at the trial court level, and that resentencing can legally occur no matter how many times that a criminal defendant is punished by the imposition and complete service of a perfectly legal sentence,” Baker said in his filing, which was submitted last week.
Attorneys for the U.S. Solicitor General’s Office, which represents the government in cases before the Supreme Court, claim that questions of double jeopardy protections cannot be reviewed by the high court until Boucher’s second sentencing hearing takes place.
Baker also argues that the federal government should not be able to appeal the plea agreement reached in 2018, in which prosecutors recommended a 21-month sentence but allowed Boucher to argue for a lesser sentence.
Boucher was bound by the terms of the agreement in writing, and Baker contends that federal prosecutors are also bound implicitly to abide by the agreement.
“When the government says to a defendant: ‘You are free to argue for any sentence within the range permitted by law, and we, the government will not object ...’ and the defendant receives a sentence within the range permitted by law, then the government should not be permitted to renege on its promise and thereafter appeal the sentence,” Baker said in his filing.
For a case to be formally reviewed by the Supreme Court, four of the nine sitting justices must vote to accept it.