In Hooks v. Sheets, No. 08-4549, the Sixth Circuit faced a challenge to the district court's imposition of the same sentence, following a remand for resentencing in light of State v. Foster, 845 N.E.2d 470 (Ohio 2006). Because defendant was always subject to consecutive rather than concurrent sentences in the discretion of the trial court, his resentencing under Foster did not raise ex post facto or due process concerns, and as such, defendant's sentence is affirmed.
US v. Woods, No. 07-5463, concerned a challenge to the district court's imposition of a 108-months' imprisonment for a conviction on one count of manufacturing methamphetamine. In vacating the sentence and remanding for resentencing, the court held that although the district court correctly applied an enhancement under the guidelines for reckless endangerment during flight, its finding that the possession of a firearm by a co-conspirator was reasonably foreseeable is without evidentiary support and clearly erroneous as it relied on an inference that if a drug conspiracy involves substantial amount of drugs, a defendant should foresee that a co-conspirator is likely to possess firearms.