923 F.2d 1494 | 11th Cir. | 1991
Lead Opinion
Appellant Larry Jackson was tried, convicted, and sentenced on six counts arising out of a drug smuggling conspiracy. Six years later Jackson’s sentences on two of the counts were modified because the prison terms originally imposed on those counts were illegally excessive. The illegal sentences were reduced, as was Jackson’s overall period of incarceration under the resulting sentencing package. Jackson nonetheless appeals the reduction of his illegal sentences, arguing that the process used to correct them deprived him of his right of allocution — the right to be present and address the sentencing court formally before imposition of sentence. He further contends that when the court correcting his sentences went beyond reducing the length of the prison terms imposed for the challenged counts/ making those terms consecutive to the term imposed for count one rather than concurrent as they had been before, the court went beyond its authority under Rule 35 and violated his double jeopardy rights. We affirm the sentences.
Only the prison terms Appellant Jackson received on four counts are relevant to this appeal: on count one, a RICO conspiracy charge, Jackson was sentenced to a term of twenty years; and on counts two, three, and four — all violations involving possession of more than 1,000 pounds of marijuana with intent to distribute — he was sentenced to terms of fifteen years each. The three fifteen-year terms were to be consecutive to each other, but concurrent to the twenty-year sentence for count one. Because the sentences on the two counts not relevant to this appeal were also concurrent to the count one twenty-year term, Jackson’s total incarceration was to be for forty-five years.
Approximately six years after Appellant Jackson was sentenced, one of his co-defendants, Joseph Lightsey, brought a Rule 35 motion to correct Lightsey’s sentences. Lightsey’s motion challenged the legality of the fifteen-year terms imposed on counts two and three — the same counts-two and three on which Jackson had been convicted and sentenced. The fifteen-year terms imposed for these counts were imposed pursuant to the penalties provision of 21 U.S. C.A. § 841(b)(6), which provides for a maximum term of fifteen years where the violation involves a quantity of marijuana exceeding 1,000 pounds. The enactment date of section 841(b)(6) was not until September 1980, however; before that time, the penal
Appellant Jackson, meanwhile, filed his own Rule 35 motion based on identical grounds;
1. The Right of Allocution
Appellant Jackson first challenges the procedure by which his illegal sentences were reduced: because he was not allowed to be present with his attorney and address the court before issuance of the order correcting his sentences, he says that the process violated his rights under both the federal rules of procedure and the Constitution.
A defendant is entitled to be present when his sentence is imposed, Fed.R. Crim.P. 43(a); and this right to be present and speak is constitutionally based, United States v. Huff, 512 F.2d 66 (5th Cir.1975).
The established right to be present for sentencing — or even for resentencing under certain circumstances — however, does not translate into a right to be present whenever judicial action modifying a sentence is taken. Rule 43(a)’s requirement of the defendant’s presence at imposition of sentence is conditioned by the clause “except as otherwise provided by this rule,” and Rule 43(c) specifically includes “[a]t a reduction of sentence under Rule 35” in its listing of situations in which the presence of the defendant is not required. Fed.R. Crim.P. 43(c)(4).
This exception to the presence-at-sentencing requirement is logical and fair given the requirement’s constitutional base and rationale: to ensure that at sentencing — a critical stage of the proceedings against the accused — the defendant has an oppor
The process described above is exactly what happened here. Appellant Jackson was present and exercised his right to address the court formally before his original sentencing — and received prison terms of fifteen years on each of counts 2 and 3. These were the sentences which the sentencing judge believed were justified by the facts after hearing from the defendant. After the sentences on those counts were held illegal, the sentences were corrected; and the order of modification reduced the sentences, bringing them into conformity with the law at the time of Jackson’s offense.
Because neither the language of the Rule 43 presence requirement nor its underlying rationale apply in this context, neither should the requirement. We, therefore, hold that, where the entire sentencing package has not been set aside, a correction of an illegal sentence does not constitute a resentencing requiring the presence of the defendant, so long as the modification does not make the sentence more onerous.
Jackson suggests that even if there is no general right to be present and address the court when a sentence is modified, he should have been entitled to do so because the judge issuing the modification order was not the original sentencing judge and was unfamiliar with the case. To support this position Jackson cites United States v. McGuinness, 769 F.2d 695 (11th Cir.1985) (judge who did not preside over trial and affirmatively revealed that he had not familiarized himself with trial transcript was precluded from imposing sentence), and United States v. Caraza, 843 F.2d 432 (11th Cir.1988) (judge who did not preside over trial but was familiar with it could properly impose sentence). But both cited cases involved the original imposition of sentence rather than a correction of sentence; they do not control — or even provide guidance — on this allocution issue.
Thus, a judge correcting a defendant’s illegal sentence by reducing it does not need to be familiar with the defendant's case; all he needs to know is that the original sentencing judge who was familiar with the defendant’s case imposed a sentence of X years. In Appellant Jackson’s case, the original sentencing judge — after allocution — imposed terms of fifteen years each for counts 2 and 3. The order correcting Jackson’s sentence reduced those terms to five years each. Regardless of the second judge’s familiarity with Jackson’s case,
2. Modifying Unchallenged Aspects of a Challenged Sentence
Jackson’s second attack is on the substance of the order modifying his sentences: he argues that the correction order should simply have reduced the illegally excessive prison terms assigned for counts two and three, without changing the nature of those terms from concurrent to consecutive with count one.
In United States v. Cochran, 883 F.2d 1012 (11th Cir.1989), we held that, when prison terms are successfully challenged by a Rule 35 motion as illegally excessive in length, the judge correcting the illegal sentence is not obligated to impose concurrent terms even if the terms were originally concurrent. Id. at 1014. Jackson attempts to distinguish Cochran by pointing out that, in Cochran, the defendant’s sentences on all four counts were successfully challenged; the judge correcting the sentence was essentially starting with a clean slate. The judge correcting Jackson’s sentences, on the other hand, was not starting from scratch; he was faced with a sentencing package including sentences which were illegal on two counts, but legal on several others. Thus, Jackson reasons, when the district court changed his sentences on counts two and three from concurrent with to consecutive to the unchallenged sentence for count one, the court was not just changing a legal aspect of an illegal sentence on a particular count as was approved in Cochran. Instead, according to Jackson, the court was actually modifying a separate sentence imposed on another count — that is, count one — which was lawful and unchallenged. And this, Jackson contends, exceeded the limits of the district court’s authority to correct an illegal sentence under Rule 35.
Jackson’s argument is based on a misper-ception of exactly what the district court’s order correcting his sentence does. That order directs:
As to counts 2 and 3, the defendant, Larry William Jackson, is hereby committed to the custody of the Attorney General or his authorized representative for imprisonment for a term of 5 years on each count.... The sentence as to counts 2 and 3 shall run consecutively to each other and consecutively to the sentence imposed as to count 1.
*1499 The original sentence as to counts 1, 4, 9 and 10 shall remain in effect as [previously] imposed on January 22, 1982.
As the language of the order makes clear, it operates directly to modify the sentences only on counts two and three, the challenged, unlawful portions of the overall sentencing package. Once the sentences on counts two and three were recognized as unlawful, the entirety — not just some parts — of the sentences imposed on those counts was reopened for modification.
Appellant Jackson further contends that to the extent the correction of his sentences went beyond purely reducing the challenged terms, it violated his double jeopardy rights by abrogating his expectation of finality in the legal aspects of his original sentences. This argument was also raised and rejected in Cochran, however, where we held that double jeopardy concerns are not implicated in sentence modifications as long as the overall period of imprisonment is reduced (as it was by fifteen years for Jackson). 883 F.2d at 1016-17;
AFFIRMED.
. Appellant Jackson’s motion, like that of his co-defendant Lightsey, was brought pursuant to the version of Rule 35(a) applicable to offenses committed prior to November 1, 1987. This rule provided in pertinent part that ”[t]he court may correct an illegal sentence at any time.... ” Rule 35 has since been revised. See Fed.R. Crim.P. 35.
. In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981) (en banc), this court adopted as precedent all decisions of the former Fifth Circuit Court of Appeals decided prior to October 1, 1981.
. It is possible to imagine a sequence of events in which one or more illegal sentences were reduced, but the overall sentencing package resulting from the modifications would be more onerous than that existing before the modifications (for example, because some previously concurrent sentences became consecutive). Assuming such a possibility — that is, an overall sentencing package made more onerous by a Rule 35 modification — would not be precluded by double jeopardy principles (as briefly discussed later in the text) or other constitutional concerns, the due process concerns reflected in Huff, 512 F.2d at 71, and Mempa, 389 U.S. at 133, 88 S.Ct. at 256, might mandate further allocution.
. The government states in its brief that the judge issuing the order correcting sentence was in fact familiar with the case, having handled several of Appellant Jackson's pre and post-trial motions. Our holding does not turn on this familiarity, however.
. Actually, the overall sentencing package may have been reopened in every respect once the sentences on counts two and three were nullified; but we need not decide that question today. The government contends that whenever a portion of a sentencing package is challenged, the judge modifying the sentencing package should be able to modify any portion of that package as long as the resulting aggregate sentence is less onerous than it was prior to the challenge. This argument is based on the holistic nature of the trial judge’s sentencing decision: rather than sentencing count by count, the judge looks at the totality of the defendant’s conduct and fashions a sentencing package he deems to be the appropriate societal response. This government contention has already been accepted by this court as the preferable approach in the context of resentencing after a direct appeal. See, e.g., United States v. Curry, 902 F.2d 912 (11th Cir.1990) (holding sentence on some, but not all, counts illegal, but nonetheless vacating all of the sentences — legal and illegal — to allow sentencing judge to refashion new overall sentencing plan). The context of a Rule 35 challenge to a sentence may present procedural and jurisdictional obstacles to this holistic approach, however; for the legal portions of the sentencing package have not been vacated and the case has not been remanded for total resentencing. Nonetheless, the seventh circuit has held that neither Rule 35 nor double jeopardy concerns prevent a district judge from modifying an entire sentencing package in a Rule 35 attack. United States v. Bentley, 850 F.2d 327 (7th Cir.), cert. denied 488 U.S. 970, 109 S.Ct. 501, 102 L.Ed.2d 537 (1988). Other courts have gone the other way. See United States v. Minor, 846 F.2d 1184 (9th Cir.1988); United States v. Henry, 709 F.2d 298 (5th Cir.1983) (en banc) (plurality opinion).
Because we have found that the order correcting sentence below operated only on the challenged, illegal portions — the sentences on counts two and three — of Jackson’s sentencing package, this is not the appropriate case in which to decide this issue.
. Again Jackson attempts to distinguish Cochran on the grounds that the entirety of the Cochran defendant’s sentencing package was held illegal. Because the double jeopardy analysis focuses on the overall length and conditions of confinement rather than the sentence imposed on any given count, however, see Cochran, 883 F.2d at 1017, this distinction is unmeaningful.
Dissenting Opinion
dissenting:
Respectfully, I submit that the practical effect of the district court’s actions in this case was a resentencing on all relevant counts. Not only was the sentence reduced on counts 2 and 3 but also the twenty-year sentence on count 1 was changed so that it was consecutive and no longer concurrent. In my opinion, this was within the district court’s authority. In light of the holistic nature of the sentence, when Jackson challenged the sentence on counts 2 and 3, he necessarily also brought into issue the sentence on count 1. See Opinion for the Court, n. 5, supra. However, the case law in this circuit holds that the right of allocution attaches when there is such a resentencing. Accordingly, I would vacate the sentences and remand for resentencing at which Jackson is allowed allocution.
