419 F.2d 753 | D.C. Cir. | 1970
Lead Opinion
Appellant Barnes is presently incarcerated in a Maryland penitentiary serving a state sentence. In early 1965, Barnes was convicted on a federal indictment, Cr. No. 869-64, of housebreaking, grand larceny and assault. The sentencing judge imposed a sentence of five to 15 years to run concurrently with the Maryland sentence. This court reversed that conviction on grounds not relevant to the present appeal and remanded for a new trial.
On this appeal, appellant challenges the constitutionality of the increased severity of the sentence imposed on Cr. No. 869-64 following his guilty plea on remand since the sentence now is consecutive to the state sentence instead of running concurrently with it.
In Pearce and Rice the Court held that when a criminal conviction is set aside on appeal and a new trial ordered, a harsher sentence may not be imposed upon conviction on retrial unless the increased severity is justified on the basis of “identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding.”
Revision, however, presents problems. This court could simply order that the improperly increased federal sentence under Cr. No. 869-64 run concurrently with the state sentence. But for several reasons such action may delay the start of the three valid consecutive federal sentences imposed at the same time, thereby increasing those sentences.
We are, of course, bound by the rule that a valid sentence once imposed and being served cannot be increased.
Under the circumstances, we believe that the appropriate disposition is to remand this case to the sentencing judge for resentencing in light of the relevant constitutional principles herein discussed.
Remanded for proceedings consistent with this opinion.
. Barnes v. United States, 124 U.S.App. D.C. 318, 365 F.2d 509 (1966).
. In his brief, appellant states that he challenges the validity of the other three sentences as well, but his arguments and citations concern only the validity of the new sentence in Cr. No. 869-64. We therefore address ourselves only to appellant’s challenge to that sentence. Appellant also raises several other points on appeal which we have carefully considered and find without merit.
. 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed. 2d 656 (1969).
. 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed. 2d 656 (1969).
. 395 U.S. at 726, 89 S.Ct. at 2081.
. Consecutive sentences are increased if the date at which they are to start is delayed, even though the length of the sentence itself remains the same. See Owensby v. United States, 10 Cir., 385 F.2d 58 (1967).
. United States v. Benz, 282 U.S. 304, 51 S.Ct. 113, 75 L.Ed. 354 (1931); United States v. Sacco, 2 Cir., 367 F.2d 368 (1966); Owensby v. United States, supra Note 6.
. Deutschmann v. United States, 9 Cir., 254 F.2d 487, 490-491, cert. denied, 357 U.S. 928, 78 S.Ct. 1377, 2 L.Ed.2d 1374 (1958), holds that a consecutive sentence may be increased even though the sentence to which it is anchored has begun to be served. That ease is clearly distinguishable from the present one since the sentence increased there was completely invalid originally. But the Deutschmann court’s stated position is, of course, directly contrary to Owensly and, we believe, unwise. The Deutsch-mann logic would allow a judge to increase a valid consecutive sentence long after it had been imposed. Apparently a prisoner would remain subject to the threat that his valid consecutive sentence could be increased until he had served all the prison terms to which the consecutive sentence was anchored. This, of course, would defeat all the policies behind the rule forbidding an increase in sentence after it has begun to be served. See Annot., 168 A.L.R. 706, 709 (1947).
Concurrence in Part
(concurring in part, dissenting in part):
I concur in affirmance of the judgments of conviction in all four cases on appeal.
Appellant originally was convicted and sentenced in No. 869-64 in February 1965 to five to fifteen years, to run concurrently with a Maryland term of imprisonment which the judge had been advised was for seventeen years. We reversed in No. 869-64 on May 27, 1966. Barnes v. United States, 124 U.S.App. D.C. 318, 365 F.2d 509. On December 16, 1966, Barnes was resenteneed by a different judge on his pleas of guilty in that case and in the other three cases now on appeal. Before sentencing, the judge was advised by the Office of the United States Attorney that Barnes had begun to cooperate with the Government and with grand juries in the District of Columbia and Maryland. It was revealed that Barnes’ assistance resulted in various police investigations, in the return of numerous indictments, in the initiation of others, and in the recovery of some $70,000 of stolen property. Bearing in mind these circumstances, the judge imposed an aggregate term of imprisonment in the four cases of five to fifteen years, stating:
The Court will give you credit for entering your pleas of guilty and also for your cooperation with the Government. * * *
These four sentences of five to fifteen years each to run concurrently with each other will run consecutive to the sentence imposed in the State of Maryland.
I agree with the court that under the decision of the Supreme Court in Pearce and Rice the sentence in No. 869-64 could not thus be increased by being made consecutive to the Maryland sentence because such an enlargement, following the reversal of an earlier conviction, would amount to a penalty upon Barnes for having appealed. The court also holds, however, that the other three federal sentences remain valid as consecutive to the Maryland sentence. Yet it does not simply direct that the sentence in No. 869-64 revert to its original concurrent status, for fear that such a revision might delay the effectiveness, and thus invalidly enlarge, the other three sentences. Instead, the court remands for resentencing.
The difficulties expressed by the court in its remand of No. 869-64 for resen-tencing are the product of its holding that the other three sentences continue to be valid as consecutive to the Maryland sentence. I experience no such difficulties as it is my opinion that all four federal sentences should remain concurrent with one another.
The Supreme Court declared in Pearce and Rice that,
In order to assure the absence of [a vindictive] motivation, we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear.
North Carolina v. Pearce, 395 U.S. 711, 726, 89 S.Ct. 2072, 2081, 23 L.Ed.2d 656. The record on these appeals fails to reveal any objective information concerning the conduct of the appellant occurring after the original sentencing which would justify an enlargement of that sentence. Accordingly that sentence must revert to its original status as concurrent with the Maryland sentence. On the other hand, the record clearly demonstrates that the trial judge intended to
By unifying as concurrent all four sentences their consecutiveness to the Maryland sentence, not merely that in No. 869-64, became subject to the constitutional objection enunciated in Pearce and Rice. The record supports the trial judge’s conclusion that all four sentences should be treated similarly, and there is no explanation, as necessitated by Pearce and Rice, why not only the sentence in No. 869-64 .but, by reason of their concurrency with it, the three other federal sentences were enlarged by being made consecutive. In disregarding the concurrency of the four sentences, and treating three of them as independent, the court denies the accused the protection required by Pearce and Rice. He is not given this protection when only one of the four sentences is prevented from being consecutive to the Maryland sentence; for this leaves the total term of confinement unaffected, with no explanation why the trial judge added the consecutiveness after the reversal of No. 869-64. Accordingly, the danger that the accused might have been penalized for having appealed, which in Pearce and Rice led to the decision there, attaches here to the four combined sentences.
I reach the same result by another route. Pearce and Rice disrupted the consecutiveness of the federal sentences, not their concurrency. Under that decision the sentence in No. 869-64 can no longer be consecutive to the Maryland sentence, thus destroying the scheme of consecutiveness. The concurrent scheme, however, was unaffected by Pearce and Rice and I can see no justification for this court to disturb it.
In sum, Barnes should in my view serve five to fifteen years under the federal sentences, with credit for such time as he might serve in the Maryland case, and subject of course to such parole and other rights as he might have under federal statutes. This result is not only just, as consistent with the sentencing court’s recognition of the mitigating circumstances which led him to combine into one the four federal sentences, but the only result which gives meaning to the Pearce and Rice decision as applied to these cases.
. I understand from footnote 2 of the majority opinion that the court affirms the judgments of conviction.
. Appellant has adequately challenged all four federal sentences. He did so in his pro se Motion to Vacate and Set Sentences Aside and later in his brief before this court. Moreover, whether a sentence is to begin after a long state sentence or concurrently therewith is such a substantial question that we would be obliged to consider it.
. In remanding for resentencing the court does not appear to offer guidance to the District Court as to how to solve the problems it suggests.