UNITED STATES of America, Appellee v. Michael PALMER, also known as Tony, also known as Knot, also known as James, Appellant
No. 15-3006
United States Court of Appeals, District of Columbia Circuit.
Argued November 18, 2016. Decided April 14, 2017
This court need not “respond specifically to every argument made by every appellant.” Troy Corp. v. Browner, 129 F.3d 1290 (D.C. Cir. 1997). But disbarment orders are serious business. In reviewing them, we owe attorneys a thorough treatment of their arguments, however unpromising. I have written separately with that in mind.
Nicholas P. Coleman, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Elizabeth Trosman and Elizabeth H. Danello, Assistant U.S. Attorneys.
Before: ROGERS, BROWN and GRIFFITH, Circuit Judges.
Concurring opinion filed by Circuit Judge BROWN.
ROGERS, Circuit Judge:
This appeal challenges the amended judgment entered by the district court following the partial grant of appellant‘s motion pursuant to
The court need not decide today whether the Fair Sentencing Act applies to a resentencing upon a successful collateral attack pursuant to Section 2255. The district court left intact appellant‘s original trial sentence in 1989 except to apply intervening changes in the law on the merger of offenses. This limited revision to an otherwise final judgment was not a reevaluation of the appropriateness of appellant‘s original sentence. As a Section 2255 “correct[ion],” and not a “resentencing” at which the government has acknowledged the more lenient penalties under the Fair Sentencing Act would apply, this entitled appellant to no relief under the Act. Accordingly, because appellant‘s due process challenge to his continuing criminal enterprise (“CCE“) conviction also affords no relief, we affirm.
I.
On direct appeal, the court affirmed appellant‘s convictions of conspiracy and related offenses involving presiding over the large-scale distribution and sale of unlawful drugs in Washington, D.C., in the late 1980s. United States v. Harris, et al., 959 F.2d 246 (D.C. Cir.), cert. denied 506 U.S. 933, 113 S.Ct. 364, 121 L.Ed.2d 277 (1992). Appellant thereafter filed a series of motions collaterally attacking his convictions. In 2012, he filed a motion pursuant to
The district court granted appellant‘s Section 2255 motion in part. United States v. Palmer, 902 F.Supp.2d 1, 4 (D.D.C. 2012). It vacated four of his Section 924(c) convictions and his conspiracy conviction and the accompanying sentences. The district court interpreted Rutledge to leave to “the sound discretion” of the district court whether to dismiss the lesser included offense (here, conspiracy), id. at 11, and decided to “not depart from standard practice” under which the conspiracy conviction, rather than the CCE conviction, would be vacated, id. at 12. It acknowledged that the choice “is likely to have more concrete effects on [appellant‘s] actual sentence than cases in which the two sentences were identical,” id. at 12; appellant would be eligible for parole if his CCE conviction, for which he was sentenced to life without possibility of parole, were vacated.
On appeal, appellant contends that the district court erred by not applying the Fair Sentencing Act in entering
| Count | Conviction | Original Judgment (1989) | Amended Judgment (2015) |
|---|---|---|---|
| 1 | Conspiracy to distribute and possess with intent to distribute cocaine and cocaine base, | Life (concurrent) | VACATED |
| 2 | Continuing criminal enterprise, | Life without parole (concurrent) | Life without parole (concurrent) |
| 3 | Conspiracy to use or carry weapons during drug trafficking offense, | 5 years (concurrent) | 5 years (concurrent) |
| 4 | Use of juveniles in drug trafficking, | 20 years (concurrent) | 20 years (concurrent) |
| 5 | Distribution and possession with intent to distribute 50 grams or more of cocaine base, | 5 years (concurrent) | 5 years (concurrent) |
| 6, 7, 11, 16 | Unlawful use of firearm in aid of drug trafficking, | 5 years each (consecutive) | VACATED |
| 8, 12 | Distribution of cocaine, | 5 years each (concurrent) | 5 years each (concurrent) |
| 17 | Assault with a dangerous weapon, 22 D.C. Code § 502 | 3-9 years (concurrent) | 3-9 years (concurrent) |
In 1989, when appellant was sentenced following his convictions at trial, the U.S. Sentencing Guidelines were mandatory. See United States v. Booker, 543 U.S. 220, 233, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Those Guidelines reflected a 100:1 sentencing disparity for crack and powder cocaine offenses that was tied to the mandatory minimum sentences under
In Dorsey, the Supreme Court held that the more lenient mandatory minimum penalties of the Fair Sentencing Act applied to offenders who committed a crack cocaine offense before August 3, 2010, but were not sentenced until after that date. 132 S.Ct. at 2326. Sentencing courts were confronted with two statutes that were in tension: a general federal saving statute provided that courts should apply the sentence in effect at the time the offense occurred unless Congress “expressly provide[s]” that a later statute should be used,
This court has held on the direct appeal from a conviction that the Fair Sentencing Act is not retroactive to sentences imposed prior to its enactment. In United States v. Bigesby, 685 F.3d 1060 (D.C. Cir. 2012), the court concluded that “Congress‘s desire to have the [Fair Sentencing Act] implemented quickly,” by issuance of emergency amendments to the Sentencing Guidelines, “in no way suggests that it also intended to have the Act apply retroactively to defendants sentenced before it was passed.” Id. at 1066 (quoting United States v. Bullard, 645 F.3d 237, 248 (4th Cir. 2011)). Congress had a “rational basis for limiting the [Act‘s] retroactive effect—its ‘interest in the finality of sentences.‘” Id. (quoting Johnson v. United States, 544 U.S. 295, 309, 125 S.Ct. 1571, 161 L.Ed.2d 542 (2005)). In United States v. Fields, 699 F.3d 518 (D.C. Cir. 2012), the court viewed Bigesby as consistent with Dorsey because “the [Supreme] Court expressly acknowledged that it was creating a disparity ‘between pre-Act offenders sentenced before August 3 and those sentenced after that date.‘” Id. at 522 (quoting Dorsey, 132 S.Ct. at 2335).
Similarly, in United States v. Swangin, 726 F.3d 205 (D.C. Cir. 2013), the court held that a defendant seeking a reduction under
Still, it is an open question in this circuit whether, on collateral attack, the Fair Sentencing Act‘s reduced penalties are applicable to sentences imposed pursuant to Section 2255 upon vacatur of the challenged judgment. Section 2255 instructs the district court, upon granting the motion, to “vacate and set aside” the challenged judgment, and then to “discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.”
The text of Section 2255 indicates that Congress intended a sentence “correct[ion]” and a “resentencing” to entail different remedies that do not quite favor appellant‘s broad approach. First, Congress is presumed, absent indication to the contrary and there is none here, to use words in their ordinary meaning. See Engine Mfrs. Ass‘n v. S. Coast Air Quality Mgmt. Dist., 541 U.S. 246, 252, 124 S.Ct. 1756, 158 L.Ed.2d 529 (2004). Dictionaries define a “correction,” as “the act or an instance of making right what is wrong,” BLACK‘S LAW DICTIONARY (10th ed. 2014), or “remedying or removing error or defect,” WEBSTER‘S THIRD NEW INTERNATIONAL DICTIONARY, UNABRIDGED (2017). A “resentencing” in contrast, is “[t]he act or an instance of imposing a new or revised criminal sentence.” BLACK‘S LAW DICTIONARY (10th ed. 2014). These definitions suggest that corrections are limited to a specific type of action taken with respect to the original judgment, while resentencings could encompass a broader array of procedures. They nonetheless leave open the possibility for overlap between the two and thus are not dispositive.
Second, the Federal Rules of Criminal Procedure embrace a similar distinction. Rule 35 allows the district court to “correct a sentence that resulted from arithmetical, technical, or other clear error.”
Third, courts are to interpret congressional statutes in a way to avoid surplusage. See Young v. United Parcel Serv., Inc., — U.S. —, 135 S.Ct. 1338, 1352, 191 L.Ed.2d 279 (2015); Mingo Logan Coal Co. v. EPA, 714 F.3d 608, 613-14 (D.C. Cir. 2013). Although the district court did revise appellant‘s original trial sentence, Section 2255‘s mandate to vacate the challenged judgment upon granting relief affords the district court distinct remedial options. Congress added the phrase “correct the sentence” to legislation proposed by the Judicial Conference of the United States in 1943 to allow courts upon a collateral attack to “discharge the prisoner or resentence him or grant a new trial as may appear appropriate.” Compare S. 1451, 79th Cong. (1st Sess. 1945) and H.R. 4233, 79th Cong. (1st Sess. 1945) with Report of the Judicial Conference 24 (1943). See also H.R. REP. 308 on H.R. 3214, at 7 (1947) reprinted in LEGISLATIVE HISTORY OF THE CODIFICATION OF TITLE 28 OF THE UNITED STATES CODE ENTITLED JUDICIAL CODE AND JUDICIARY: P.L. 80-773: CH. 646, 2D SESS. (1948). Congress thus contemplated a sentencing proceeding in which a correction as well as a resentencing could follow vacatur. Of course, describing the district court‘s revision as a correction rather than a resentencing does not necessarily compel the conclusion that it was proper, and depending on how far beyond Rule 35‘s boundaries a Section 2255 sentence “correct[ion]” extends may mean it is actually a “resentencing.” This case does not present those complexities.
Here, appellant contends that “the district court did not issue the new judgment to correct a mathematical or technical mistake,” and that he “was entitled to more than a Rule 35-type correction of his sentence.” Reply Br. at 4. We agree that the district court did not correct a mathematical or technical mistake in the original sentence, and although Rule 35 also refers to corrections resulting from “other clear error,” neither was the district court “fixing judicial gaffes” in that sentence. United States v. McHugh, 528 F.3d 538, 540 (7th Cir. 2008); see also United States v. Arrington, 763 F.3d 17, 24 (D.C. Cir. 2014). Rather, the district court revised the original sentence in view of the change in the law on merger since appellant was sentenced at trial. In so doing, the record indicates, clearly, that the district court did no more than mechanically vacate the unlawful convictions (and accompanying sentences) for the five counts that had merged under Rutledge and Anderson after applying the “standard practice,” in this and other circuits,3 of vacating the
The district court was required to do no more, for Section 2255(b) accords it discretion in choosing from among four remedies, “as may appear appropriate.” See United States v. Haynes, 764 F.3d 1304, 1310 (11th Cir. 2014); Ajan v. United States, 731 F.3d 629, 633 (6th Cir. 2013); United States v. Savoca, 596 F.3d 154, 161 (2d Cir. 2010); United States v. Jones, 114 F.3d 896, 897 (9th Cir. 1997). Although appellant did obtain more than a Rule 35 correction of his original sentence, because there was no clear error to fix within fourteen days of his original sentence, he was not resentenced based upon a reevaluation of the sentence that should be imposed for his convictions. The district court took none of the actions that the Advisory Committee cautioned would fall outside of the scope of a Rule 35 correction, such as reconsidering the appropriateness of appellant‘s 1989 sentence. Neither did the district court conduct any of the usual procedures for a full blown resentencing hearing: “The probation office did not prepare a new [presentence report], the district court did not accept any new evidence or any legal argument, and [appellant] was not given the opportunity to allocute[.]” United States v. Hadden, 475 F.3d 652, 667 (4th Cir. 2007). Instead, the district court acted, as the Rule 35 Advisory Committee contemplated, to correct “clear error” that arose after the time for correction under Rule 35 had expired. Section 2255 contemplates a sentencing proceeding as one of the options upon a successful collateral attack, unlike
Appellant nonetheless disputes that the district court could enter “a new judgment excising the vacated counts without considering the remaining sentences or undoing the entire knot of calculation underlying the original sentencing.” Reply Br. 4 (internal quotation marks omitted). This court has acknowledged the pertinence of a sentencing scheme in determining that a remand for resentencing is required, see United States v. Rhodes, 106 F.3d 429, 433 (D.C. Cir. 1997), and that sentences for individual counts may be so intertwined that a remand for resentencing is appropriate, United States v. Townsend, 178 F.3d 558, 566-69 (D.C. Cir. 1999). Cf. United States v. Morris, 116 F.3d 501, 504 (D.C. Cir. 1997). Yet not every judgment involving multiple convictions presents a sentencing package in which vacating the sentence on one count unravels the remaining sentences. E.g., United States v. Smith, 467 F.3d 785, 789-90 (D.C. Cir. 2006). Further, this court has repeatedly concluded that resentencing is unnecessary where, as here, the district court merely vacated convictions for lesser included offenses subject to merger. See, e.g., United States v. Battle, 613 F.3d 258, 266 (D.C. Cir. 2010); United States v. Baylor, 97 F.3d 542, 548 (D.C. Cir. 1996); United States v. Lewis, 482 F.2d 632, 647 (D.C. Cir. 1973).
Appellant has pointed to no basis to conclude that the district court presiding at his criminal trial imposed a harsher
To the extent appellant suggests that this court should consider the district court‘s choice of which conviction to vacate in light of Rutledge to be an act of resentencing in and of itself, he ignores this court‘s understanding of “resentencing.” See generally United States v. Blackson, 709 F.3d 36, 40 (D.C. Cir. 2013). A district court‘s exercise of discretion—in deciding not to depart from the “standard practice” in vacating the lesser included offense rather than the CCE conviction—also does not make its action a resentencing “in the usual sense.” Id. at 827; see id. at 825-28, 130 S.Ct. 2683. Instead, the district court‘s decision followed standard practice in making a “limited adjustment” to appellant‘s original sentence as required by subsequent developments in the law on the merger of offenses. Id. at 826, 130 S.Ct. 2683. Nothing in the record indicates that the district court was reevaluating the appropriateness of appellant‘s original sentence, much less his eligibility for parole. That a revision to a sentence may encompass something more than correction of a mathematical or technical mistake under Rule 35 does not necessarily transform whatever else the district court did into a resentencing under Section 2255.
Appellant‘s suggestion that it violates due process to permit his pre-Fair Sentencing Act sentence to stand is also unpersuasive for lack of supporting authority, as are his assertions under the Ex Post Facto Clause and, under Booker, the Sixth Amendment. There is nothing constitutionally unfair about leaving appellant‘s non-merged convictions in place in view of the evidence at his trial and the law then in effect. See Hughes, 733 F.3d at 647; Savoca, 596 F.3d at 161. The district court recounted the district court‘s observations at sentencing: “[Appellant‘s] organization ‘created havoc and misery in their path’ for several years, selling an ‘estimated 100 and 200 kilos of crack in[] the city,’ for which they earned a total of ‘perhaps as much as 5 to $10 million,‘” Palmer, 902 F.Supp.2d at 4 (quoting Sent. Hg. Tr. 2 (Oct. 18, 1989)), and “[i]n the 25 years ... on the bench, [it] ha[d] seldom, if ever, seen a case in which the evidence was as overwhelming as it was in this case ... and particularly [as to] the guilt of Mr. Palmer,” id. at 5 (quoting same at 7) (first and fourth brackets and second ellipsis in original). Further, Booker does not apply retroactively on collateral review. See, e.g., In re Zambrano, 433 F.3d 886, 889 (D.C. Cir. 2006). Appellant‘s reliance on Dorsey, 132
In sum, the amended judgment entered by the district court did no more than apply the substantive law on merger of offenses as it had developed since appellant‘s sentence at trial. In so doing, the district court applied the “standard practice” to vacate conspiracy, the lesser included offense of CCE, and then “removed the [newly existing] error[s] from [appellant‘s] original sentence—and thereby made it ‘right‘—by excising the unlawful term[s].” Hadden, 475 F.3d at 667. This limited adjustment to appellant‘s original sentence is distinguishable from a resentencing in which the district court had “chang[ed] its mind about the appropriateness of the [original] sentence.” R. 35, Advisory Comm. Notes. But for the intervening change in the law of merger, the district court left appellant‘s original sentence intact, stating “the rest of the sentences from [appellant‘s] original Judgment of Conviction remains as announced [in 1989.]” Palmer, 902 F.Supp.2d at 4.
III.
In addition to not deciding whether the Fair Sentencing Act applies to a resentencing pursuant to Section 2255, the court has no occasion to decide whether his conviction and sentence for CCE violates due process because
Appellant‘s challenge to his Section 848(b)(1)(A) conviction also does not fall within an established exception to procedural default rules. Under the law of this circuit, facial challenges to the constitutionality of presumptively valid statutes are not jurisdictional. United States v. Baucum, 80 F.3d 539, 540 (D.C. Cir. 1996). Further, whether an indictment charged a proper offense goes to the merits, not subject matter jurisdiction. United States v. Cotton, 535 U.S. 625, 630-31, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002); United States v. Williams, 341 U.S. 58, 66, 71 S.Ct. 595, 95 L.Ed. 747 (1951); see United States v. Miranda, 780 F.3d 1185, 1189-90 (D.C. Cir. 2015); United States v. Delgado-Garcia, 374 F.3d 1337, 1342 (D.C. Cir. 2004); cf. United States v. Rubin, 743 F.3d 31, 37 (2d Cir. 2014). Additionally, the “right not to be haled into court at all upon ... felony charge[s]” where “[t]he very initiation of the proceedings” denies a defendant due process, Blackledge v. Perry, 417 U.S. 21, 30, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974); accord Menna v. New York, 423 U.S. 61, 62, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975), does not apply to a due process
But even were appellant‘s contention viewed as jurisdictional or as falling within the Blackledge/Menna exception, it would fail.4 A scrivener‘s error did not deprive appellant of “fair notice” that Section 848(b)(1)(A) meant to refer to (c)(1) rather than (d)(1). United States v. Williams, 553 U.S. 285, 304, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008). At the time appellant was indicted and convicted, Section 848(b) provided for life imprisonment for a principal administrator of a CCE if “the violation referred to in subsection (d)(1) of this section involved at least 300 times the quantity of a substance described in subsection 841(b)(1)(B) of [title 21].”
“[A] provision which is the result of obvious mistake should not be given effect, particularly when it overrides common sense and evident statutory purpose.” United States v. Babcock, 530 F.2d 1051, 1053 (D.C. Cir. 1976) (internal quotation marks omitted). The Supreme Court has cautioned against judicially amending a statute “to provide for what [the court] might think ... is the preferred result.” Lamie v. U.S. Tr., 540 U.S. 526, 542, 124 S.Ct. 1023, 157 L.Ed.2d 1024 (2004) (quoting United States v. Granderson, 511 U.S. 39, 68, 114 S.Ct. 1259, 127 L.Ed.2d 611 (1994) (Kennedy, J., concurring)) (alterations in Lamie). But there, even though the plain text of the statute could lead to a harsh result, the Court concluded the result was not absurd, id. at 536, 538, 124 S.Ct. 1023, and consequently it was not inconceivable that Congress intended for the statute to operate as written, despite some evidence of a scrivener‘s error, id. at 539-42, 124 S.Ct. 1023. This court applied a similar analysis in U.S. ex rel. Totten v. Bombardier Corporation, 380 F.3d 488 (D.C. Cir. 2004), as did the Fourth Circuit in United States v. Childress, 104 F.3d 47 (4th Cir. 1996), on which appellant relies.
The drafting history and structure of Section 848 show Congress intended to refer to (c)(1), which identified the predicate violations for CCE. Cf. United States v. Coatoam, 245 F.3d 553, 558-60 (6th Cir. 2001). By construing Section 848(b) to refer to (c)(1), rather than a non-existent (d)(1), the court is “applying what Congress has enacted after ascertaining what it is that Congress has enacted.” Local 1976, United Bhd. of Carpenters v. NLRB, 357 U.S. 93, 100, 78 S.Ct. 1011, 2 L.Ed.2d 1186 (1958). And because Congress’ intent is clear, the rule of lenity is inapplicable. Bifulco v. United States, 447 U.S. 381, 387, 100 S.Ct. 2247, 65 L.Ed.2d 205 (1980).
Accordingly, we affirm the judgment of the district court.
BROWN, Circuit Judge, concurring:
While I agree the district court‘s grant of habeas relief in this action did not trigger the application of the Fair Sentencing Act‘s (“FSA“) reduced penalties, Op. 47-48, 51, I would reach this conclusion regardless of whether the district court made a sentence “correction” or conducted a more complete “resentencing.” The Supreme Court‘s rule in Dorsey v. United States, 567 U.S. 260, 132 S.Ct. 2321, 183 L.Ed.2d 250 (2012) was a ticket for a few trains only; that ticket has long since expired.1
Dorsey holds the FSA should apply to those defendants who completed their criminal conduct before the statute‘s enactment but who were initially sentenced after the law took effect. Id. at 2335-36. Specifically, the Dorsey Court considered application of the FSA to initial sentencings in light of two competing statutory
Fair enough; the Court acknowledged the need to draw an arbitrary line in light of contradictory statutory language, and it did so. But nothing in Dorsey indicates it should be extended to resentencings. To the contrary, the Court‘s six-factor analysis reveals its desire to avoid any future application of its limited holding. See Op. 45-46 n.2; see also Dorsey, 132 S.Ct. at 2344 (Scalia, J., dissenting) (“The Court‘s [majority] decision is based on six considerations, taken together, and we are not told whether any one of these considerations might have justified the Court‘s result in isolation, or even the relative importance of the various considerations.“). Indeed, the Sixth Circuit refused to apply Dorsey to a resentencing following a direct appeal, noting the statutory conflict present in Dorsey was not present in that new context. United States v. Hughes, 733 F.3d 642, 645 (6th Cir. 2013) (noting Section 3553(a)(4)(A)(ii)‘s direction to apply the Sentencing Guidelines that were “in effect on the date the defendant is sentenced“—the text Dorsey viewed as dispositive—contained a critical exemption for resentencing on remand following direct appeal). The Sixth Circuit, therefore, remarked: “What the parties ask us to do in this case [apply Dorsey to a resentencing on remand], then, is remarkable. The presumption created by § 109 is one that we are bound to take seriously, as the Supreme Court reminded us in Dorsey. And in Hughes‘s case that presumption is not rebutted....” Id. Accordingly, the court held the FSA did not apply to a defendant who had been resentenced following direct appeal after the statute‘s effective date, but who committed his crime and had been initially sentenced prior to that date.
Here, decades after Palmer‘s initial sentencing, we must answer yet another question: should the FSA apply to a resentencing on habeas relief following a change in relevant substantive law? Much like the Sixth Circuit panel in Hughes, I believe Dorsey need not be extended. While habeas relief contemplates an exception to the finality of criminal sentences, the authority of a district court judge to alter a sentence previously imposed is narrowly circumscribed. Cf. Smith v. Murray, 477 U.S. 527, 537, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986) (noting the importance of finality in criminal proceedings and the evidentiary standard necessary to overcome it in habeas proceedings). Indeed, in circumstances where changes in intervening law mandate reopening a sentence, Supreme Court jurisprudence generally contemplates “only a limited adjustment to an otherwise final sentence and not a plenary resentencing proceeding.” Dillon v. United States, 560 U.S. 817, 826, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010). To permit more would create new anomalies in sentencing—anomalies
Accordingly, while the Court does not reach the question, see Op. 42, I would conclude a district court is bound to apply the law in effect at the time of initial sentencing when constructing an amended judgment following the grant of habeas relief. To hold otherwise would transform Dorsey, into an inappropriately broad exception to the rule of finality in criminal sentences; prejudice the government, which may need to fashion arguments to accommodate now-spoiled evidence; and grant a tremendous windfall to the select few defendants who manage to partially prevail on habeas motions.
ALLIED AVIATION SERVICE COMPANY OF NEW JERSEY, Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent Local 553, I.B.T., Intervenor
No. 15-1321. Consolidated with 15-1360
United States Court of Appeals, District of Columbia Circuit.
Argued December 13, 2016. Decided April 18, 2017
Rehearing En Banc Denied June 23, 2017