If these speculations are valid, defendants may be wary of appealing lest, on remand, the probation office and the prosecution revisit the Sentencing Guidelines calculations and calculate a higher range. This opportunity for sentence recalculation is effectively a tax--payable in months or even years of additional prison time--on taking an appeal. This strikes me as unfair to the defendant and bad for the system. Appeals serve an important function, and we should not create disincentives for criminal defendants to appeal when they have meritorious grounds for doing so.
Judge McConnell wonders whether "law of the case" doctrine should be applied to such situations to prevent the prosecutor from obtaining increased sentences on successful appeals.
I have complained about such unfairness, which clearly exists in Kansas. In State v. Patry, the KSC ruled that the Double Jeopardy Clause does not prevent the state from using increased criminal history after a defendant is succesful on some appeal issue. I have previously pointed out the irony of this situation. Although legislators and talking heads often complain about clients who bring "frivolous appeals," the operation of law, as interpreted by these courts, actually punishes ONLY those who have meritorious appeals. And, as a practical matter, Judge McConnell is right, it can chill the right to an appeal (or absolutely choke it off).
Patry is a 1998 (i.e. pre-Apprendi) case. Professor Berman also just blogged (here) about a Ninth Circuit case applying the Double Jeopardy Clause to restrict the state's ability to appeal a sentencing determination. Professor Berman noted that "There are significant Apprendi-related aspects to this ruling." This type of post-Apprendi argument cuts against the Patry reasoning and we should be citing Apprendi in any case involving an increase after an appeal.
In fact, I have thought since Apprendi, that one of the biggest impacts of overruling Almendarez-Torres and fully applying Apprendi to all facts, including prior convictions, would be to try to apply Double Jeopardy/compulsory joinder protection in exactly such circumstances.