*1 Stephen Sady, R. Deputy Chief Defender, Portland, Or., Public defen- UNITED STATES dant-appellant. Sheldahl, Baron C. Asst. Atty., Port- land, Or., HARDESTY, Jude Somerset United States Court of WALLACE, Before: Judge, Chief TANG, PREGERSON, ALARCON, POOLE, CANBY, NORRIS, BEEZER, Submitted En Banc 1992.* HALL, BRUNETTI, FERNANDEZ, Decided Oct. Judges.
PER CURIAM: Hardesty appeals from the denial of his motion to reduce his sentence 28 U.S.C. 2255 and former Federal Rule 35(a). of Criminal Procedure He was con- victed federal district posses- court for shotgun sion of a sawed-off in violation of 5861(d), 26 U.S.C. 5871 and sentenced to §§ years’ imprisonment. ten The district Hardesty’s ordered that sentence run consecutively prison to a state serving that he was at the time of his federal conviction.
Hardesty filed a motion to correct the argued sentence. He before the district court that the consecutive sentence was illegal under this court’s decision United (Terrovona), and United States 647 n. 2 Cir.1981) (Williams). government opposed rely-
ing on this court’s earlier
decision Unit-
Thornton,
Cir.1983) {Thornton).
The district
observing
opinion
after
that the Terrovona
did not cite
denied the motion.
The district court concluded that
bound
ground
Thornton on the
panels
“when two
reach different conclu-
controls,
sions the earlier decision
court decides the
[circuit]
Supreme
or a United States
opinion
panel.”
the earlier
reverses
Unit-
*
unanimously
34(a)
Fed.R.App.P.
The en banc court
finds this case
and Ninth Circuit Rule 34-4.
argument.
suitable for decision without oral
*2
over this
jurisdiction
We have
3231.
CR-83-0134-
Hardesty,
No.
v.
ed States
1291.
to 28 U.S.C.
1990)
(citing timely appeal
(D.Or.
June
filed
OMP
affirm.
F.2d
We
Magana,
v.
States
United
May
v.
States
(9th
district
the
that
Hardesty argues
(9th Cir.
371 n.
busher, 735 F.2d
sen
his federal
improperly ordered
court
1984)).
previously
consecutively to his
run
tence to
panel of this
three-judge
aof
majority
A
Hardesty
state sentence.
imposed
of
the denial
affirmed
court
a
illegal as
is
his sentence
that
contends
holding that
the sentence
correct
de novo.
law,
is
our review
matter of
calling for
Thornton, without
apply
free
Wills,
F.2d
v.
notwithstanding that
review,
bane
en
Cir.1989).
(9th
clearly in
are
and
“Thornton
that in Terrovona
points
Hardesty
out
Hardesty,
v.
United States
conflict.”
a
November
until
held that
we
In
Cir.1992)(Hardesty).
(9th
F.2d
authority to order
the
lacked
court
district
authority to
the
it had
determining that
consecu-
served either
be
a sentence
that
call, majori-
the
an en banc
proceed without
770.
at
concurrently. 785 F.2d
tively or
Secretary
v.
relied on Greenhow
ty
of
gov-
in 1984.
Hardesty was sentenced
Services,
F.2d
Human
&
Health
consecutive
that
contends
ernment
Cir.1988).
(9th
according
Thornton.
lawful
tences are
rehearing en
for
suggestion
his
In
that
former
held
we
law
that under
asserted
Hardesty
authority of
limit the
did not
U.S.C. 3568
conflict
circuit, the irreconcilable
of
be served
sentences
that
to order
judges
must be
and Terrovona
Thornton
between
see
F.2d at
consecutively. 710
v.
In Atonio
by an en banc
resolved
O’Brien,
United States
Co., 810 F.2d
Packing
Cove
Wards
(following
Cir.1986) (O’Brien)
(9th
denied, 485
(en banc),
Thornton).
rehearing en banc
granted
We
mech
appropriate
that “the
(1988),we held
and
conflict between
resolve the
con
resolving
irreconcilable
for
anism
authority
and
prior cases
Our
Terrovona.
1478-
Id. at
decision.”
is an en
flict
banc
of
in favor
counsel
circuits
from other
provid
method is
alternative
Unless an
Consecu
rule in Thornton.
adopting the
panel faced
of this
by rule
“[a]
ed
by the law
sentencing
permitted
was
tive
for en banc
call
a
must
such
conflict
with
as 1941. See Gun
early
as
this circuit
of
normally grant
review,
court
will
which
Squier,
ton
distin
can be
prior
decisions
sentence);
1950)
consecutive
(approving
added).
(emphasis
at 1479
guished.” Id.
514, 514-15
Warden,
Hayden
of this
panel
Greenhow,
three-judge
a
Gunton, we stat
Cir.1941)(same). In
oppos
two
are
there
held that where
court
that
may, without
authority, a panel
ing lines
a
law that
recognized
rule
rule of
review,
follow
is a well
en
calling for
banc
[i]t
criminal
has violated the
“successfully posed as the
who
person
has
which
and State
enough
relied
of both the
long
to be
for
statutes
circuit
complain of the or-
may
did
at 636. Greenhow
Government
upon.”
punished
or
We
he
tried
decision.
is
der
banc
which
not cite
Atonio
unto
is a sentence
extent
Each
to the
Greenhow
such offenses.
overrule
therefore
nobe
order-
itself,
would
there
otherwise
conflicts with Atonio.
that
handling
of this
cases
procedure
ly
that
sovereigns.
two
kind between
that his
requests
illegal
was
sentence
our restatement
471. Since
or,
in 185
time served
be reduced
Thornton, no
court
appellate
this rule
alternative,
be
probation
substitut-
that
See,
analysis.
the Terrovona
approved
district
sentence.
the federal
ed for
In addi-
O’Brien,
at 1346.
e.g.,
pursuant to 18
jurisdiction
had
tion, eight
agree
PREGERSON,
of our sister circuits
Judge, dissenting:
federal district courts have the
I respectfully dissent because I believe
impose a sentence that commences after
position
that the
set forth in footnote 2 of
completion
existing
of an
state sentence.
*3
Williams,
United States v.
my opinion in
States,
Harding
See
v. United
851 F.2d
644,
(9th Cir.1981),
651 F.2d
647
2n.
appro-
1305,
(11th Cir.1988);
Pinaud v.
1306
priately balances the interests of both the
James,
27,
(2d Cir.1988);
Unit
851 F.2d
Attorney General and those of the district
Campisi,
697,
(3d
622 F.2d
Attorney General,
The
through the
Civiletti,
Cir.1980);
Causey v.
621 F.2d
Prisons,
Bureau of
has the discretion to
691,
(5th Cir.1980);
Cox v. United
designate
place
of confinement.
Arron,
ex
rel.
C.F.R,
U.S.C.
Lee,
0.96.
United States v.
§
denied,
grant
this
(8th Cir.),
authority precluded
cert.
587-88
the Dis-
419 U.S.
95 S.Ct.
trict
Court under 18 U.S.C.
3568 from
States,
(1974);
Anderson v. United
ordering that a federal sentence run con-
denied,
(10th Cir.),
cert.
currently
sentence,
with a state
I believe it
L.Ed.2d 567 equally prevented the District Court from
States,
(1969);
Jervis v. United
ordering a
However,
consecutive sentence.
(1st Cir.1967).
the District Court was free to recommend
either situation.
hand,
on the other
stands
failing
recognize
alone in
the rule enun
Footnote 2 of Williams sets forth this
ciated in
as the
the cir
position. The recommendation of the Dis-
cuit. Terrovona relied on three cases ad
trict
invariably
Court was
by
followed
dressing
question
whether a district
Bureau of
I
approach
Prisons.
believe this
court could order concurrent sentences un
best accommodated the interests of both
der former 18
See Terrovo
the Bureau of Prisons and the District
na,
770; Williams,
Court.
way,
the District Court ac-
644; Segal,
States v.
We conclude that the better rule is stated
Thornton and our sister
know,
a decade.
As far as we
circuits.
District
capacity,
en banc
Thorn-
we reaffirm
Courts in
this circuit adhered to it until the
ton and overrule
the extent Crime Control Act of 1984 became effec
that it is inconsistent with Thornton. See, e.g.,
Posey,
United States v.
tive.
district court did
ordering
not err in
Har-
(C.D.Cal.1987)
F.Supp.
(noting that
desty’s sentence to run consecutively to his
order of consecutive sentence was modified
undischarged state sentence.
to reflect a recommendation to the Attor
ney General).
the district
its
refusing
abused
discretion in
approach
Williams
appeal
has the
updated
presentence
order
report. We
of consistency and
If
balance.
the District
do not review this issue en banc and leave Court could not order a concurrent
panel opinion’s
disposition
ques-
tence, it should not have been able to order
tion intact. Hardesty,
AFFIRMED. giving the District harsher, lighter. but amake
Accordingly, I dissent. *4 STATES
UNITED GALLIANO, Steve
Marcus
Argued and Submitted 22, 1992. Oct.
Decided Nev., for Roske, Vegas, Las J.
Randall defendant-appellant. Atty., Las Damm, Asst. U.S. Gregory
J. Nev., Vegas,