Where an offender is re-sentenced following a successful appeal and re-trial, the second sentencing judge should start with the proposition that the offender ought not receive a harsher sentence than that imposed after the first trial. A heavier sentence should only be imposed where the earlier sentence was outside the appropriate range or the facts are significantly different. The policy considerations against heavier sentences on re-trial — avoiding deterrence of meritorious appeals and avoiding any appearance of retribution — are powerful and must be considered before any departure.
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