United States v. Monroe Evans, Also Known as Ty, Also Known as Daddy
314 F.3d 329
8th Cir.
2003
Check Treatment
Docket

*1 lawsuit, or fear of subjective Wolfe’s having up- applicants anger at

Wolfe’s justification her, provide does not

set union hire the refusal company’s

applicants.1 arguments other company’s

The with- are Board’s order of the

enforcement enforce Accordingly, we merit.

out R. 47B. order. See 8th Cir.

Board’s America, STATES

UNITED Appellee,

Plaintiff — EVANS, also known

Monroe Daddy, Ty, known as also Appellant.

Defendant — 02-1806.

No. Appeals, Court

United States Circuit.

Eighth 20, 2002. Sept.

Submitted: 24, 2002. Dec.

Filed: Banc Rehearing En

Rehearing and Feb. 2003.*

Denied: because Elec., Inc., him not have hired employer would Bay company's reliance not (1997) animosity misplaced. In and dislike "personal 323 N.L.R.B. case, the General activity protected held that any the Board ... of] [because prima facie established a had Counsel Id. at 201. Act.” case, orga- finding union refusal-to-hire * Arnold, McMillian, Judge S. Judge Morris jobs and that there applied for had not nizers grant the Judge Smith would Judge Bye and orga- As to job one openings. were no event, rehearing banc. that, en petition for nizers, any noted the Board

Steven argued, Louis, V. Stenger, St. MO, appellant. Marcus,

Howard J. Asst. Atty., ar- gued, Louis, MO, St. for appellee. HANSEN, Before Judge, Chief LOKEN, RICHARD S. ARNOLD and Circuit Judges.

LOKEN, Judge. Circuit A jury convicted Monroe Evans of three prostitution and Mann Act counts and four money laundering counts. At sentencing, departed upward and sentenced Evans prison. months in On we affirmed the conviction and the upward departure but remanded for resentencing because the sentences im- posed on two counts were upon based in- creases to statutory máximums enact- ed after offenses, Evans committed his which violated the Ex Post Facto Clause. Evans, States v. (8th Cir.2001), denied, 1090-92 cert. 152 L.Ed.2d 642 remand, On the district court again imposed sentence, a 396-month off setting reduced those two counts with increased sentences on four other counts. appeals, arguing that the new sentence exceeded the district jurisdiction court’s and violated his double maximum of statutory tive sentences —the Review- rights. process due jeopardy erroneous statu- count months on novo, we affirm. de of law issues ing these counts 17 120 months on tory maximum Imposed The Sentences I. *3 on 18, 24 months only consecutive and and by Court. District the 44, for counts 19-21 and of counts each 240 was statutory maximum which the follow- of the Evans convicted jury The remand, court months. On ing offenses: pun- total that Evans’s again determined an transporting knowingly Count 17— prison. in be 396 months should ishment with commerce in interstate individual by again imposing that result It reached in engage individual that the intent the months sentences—60 consecutive seven This § 2421. 18 prostitution, U.S.C. before; on counts 1, 60 months count as on sen- statutory maximum a carried count Facto 18, Ex Post correcting the 17 and offense was the when of 60 months tence violation; and increased of at time months and 120 committed money four of the on each of 54 months sentencing. laundering counts. induc- persuading, knowingly Count 18— in to individual travel enticing an ing, or and Concurrent II. Consecutive in prosti- engage to commerce interstate Sentencing the Under 2422(a). count This § tution, 18 U.S.C. Guidelines. sentence maximum statutory a carried com- offense was the months when of 60 3553(a) (b) and §§ and In 18 U.S.C. sen- at time of 120 and months mitted district courts 3584, granted Congress tencing. impose consecutive to discretion broad the Mann to violate conspiracy Count 1— sentences, provi- to the subject concurrent car- count Act, § This 18 U.S.C. The Sentencing Guidelines. the of sions 60of sentence statutory maximum a ried statutory if the provide Guidelines months. the mini- less than maximum sentence in laundering money 19 and Counts 21— range, the guideline applicable mum of the 1956(a)(l)(A)(i). § of 18 U.S.C. violation guideline be maximum “shall statutory statutory a carried each counts These 5Gl.l(a). § Section U.S.S.G. sentence.” 240 months. of maximum a defendant addresses how then 5G1.2 in laundering violation Count con- a multi-count for sentenced 20— should be 1956(a)(1)(B)®. This § 18 U.S.C. applicable limited Unless viction. maximum statutory a carried count for maximum, each the sentence statutory of 240 months. tence punishment.” be the total “shall count money, launder conspiracy to 5G1.2(b). stat- highest applicable Count If the § 44— 1956(h). carried This count § to achieve adequate U.S.C. 18 “is utory maximum 240 statutory maximum all a the sentences punishment,” the total unless concurrently,” months. run “shall counts 924(a)(4), pre- § statute, as 18 U.S.C. such court sentencing, the district initial At the sentence. consecutive scribes guidelines combined determined statutory 5G1.2(c). highest if But § is 235 offenses range these for punish- than the less maximum is granted to months. 293 case, the sentence ment, “then in this depar- upward an motion government’s the other or more on one imposed to 396 months sentenced ture only consecutively, but to run counts shall consecu- seven The court prison. 332 necessary produce extent a com regarding the maximum sentences im- equal

bined sentence to the total punish posed on counts 17 and 18.1 5G1.2(d); § ment.” see United remand, On the district court again McLeod, (2d 78, 251 Cir.), F.3d 83 cert. § failed to 5G1.2(d), follow instead con- denied, S.Ct. structing Evans’s new 396-month sentence (2001) L.Ed.2d 226 (explaining the “correct with seven consecutive sentences. Be- method sentences on multiple 5G1.2(d) § cause mandates the total sen- counts”). In Diaz, United States v. tence the district court imposed, Cir.) (en banc), cert. court’s error Guidelines is harmless. The — denied, -, *4 123 S.Ct. 154 whether, issue on appeal is as Evans con- (2002), L.Ed.2d 247 recently we confirmed tends, “ this harmless Guidelines error 5G1.2(d) § that mandates consecutive somehow combines with our prior remand those in which cases the total produce order to a reversible error. punishment exceeds the statutory maxi mum any for one count.” III. The Court’s Jurisdiction To case, In this Evans’s total punish Resentence All Counts.

ment of 396 months greater was than the statutory maximum any Evans argues the that seven our remand or gave counts conviction. der Unfortunately, in the jurisdiction con district court no structing sentence, original its to reopen his sentence on four money the court did not follow Part laundering 5G of the Guide counts. We disagree. pri- Our lines. Had the or applied district simply Part order “remanded for resentenc 5G, it would have first ing.” the 272 statuto F.3d at 1098. Under the Guide ry maximum count, lines, sentence on each be “a multi-count sentence a package is cause each was less than the total and punish severing part of the total sentence Then, ment. § applying 5G1.2(d), usually the will unbundle it.” Gardiner v. court would have 156 made months of States, the 734, (8th United 114 F.3d 736 Cir. second 240-month 1997) maximum sentence con (quotation omitted). Here, secutive to the first 240-month 5G1.2(d) § maximum required the district court to sentence, producing the 396-month total sentence the seven counts a package, punishment. It would then have made the using consecutive and concurrent sen other five maximum sentences concurrent tences so as to impose proper the total with the sentence imposed on the first two punishment. Thus, when we did not limit counts. Had the court constructed its sen our remand to resentencing only counts 17 manner, tence in this we no 18, doubt would and the district court jurisdic retained have affirmed the 396-month sentence but tion to resentence all the counts as a pack modified judgment the to correct the error age. agree

1. We with the First Circuit the that consecutive and concurrent sentences when punishment” term 5G1.2(d) "total §in in punishment the total upward includes an de cludes a upward lawful departure. United parture, the judge ap should still 312, States v. Coplin, 24 F.3d Hernandez 320 5G1.2(d) ply § methodology in determin (1st Cir.), denied, n. 9 956, cert. 513 U.S. 115 ing how to construct the total sentence from 378, (1994). S.Ct. 130 L.Ed.2d 328 But see the various counts of conviction. See 18 Martinez, 897, United States v. 903- 3553(b); § U.S.C. United Terry, States v. 142 (5th Cir.2001). 04 That means that Cir.1998), 702, (4th denied, F.3d 707 rt. 528 ce 1.2(d) § governs 5G the manner in Ev which 853, 317, 120 S.Ct. 145 L.Ed.2d 113 ans’s imposed. should be But (1999). 5G1.2(d) § even if govern does not the use of

333 (10th denied, Cir.), cert. 915, 916-17 F.2d Jeopardy Issue. A Double IV. 153, 116 L.Ed.2d 850, 112 S.Ct. 502 U.S. increasing argues next Earley, 816 (1991); v. 118 the four each of on his sentences 1428, cases cited n. 6 & 1433 F.2d Double violates counts laundering Cir.1987) (en banc); v. Bu United States multiple prohibition Clause Jeopardy Cir.) (“where (3d 940, sic, 947-48 639 begun had he because punishments ... interdependent were the sentences we dis Again, those sentences. serve history nothing in [t]here federal years, most many For agree. Jeopardy Clause policies of Double Benz, United States read courts the denial justifies 306-07, 75 L.Ed. 51 S.Ct. spread erro been the sentence has when (1931), Lange, Wall. parte and Ex have been de counts that neously over (1874), as es 173, 21 L.Ed. 872 163, 168, denied, invalid”), 452 U.S. cert. clared prisoner com once tablishing “that L.Ed.2d sentence, [Double mences service in a appropriate particularly That rule a court from prevents Jeopardy] 5G of Sentenc governed Part case then vacating the *5 Guidelines, the requires that which ing Pearce, v. Carolina North one.” greater as an inte counts be multiple sentenced 2072, 747, 23 711, S.Ct. 89 U.S. 395 total proper the to achieve grated package (1969) (Harlan, J., dissenting 656 L.Ed.2d in United States As we said punishment. v. However, in United States part). in (8th 135, Harrison, 138 Cir. 113 F.3d v. 136, 117, 101 DiFrancesco, S.Ct. 449 U.S. le no 1997), the defendant has “[b]ecause (1980), held the Court 426, 328 66 L.Ed.2d in dis finality expectation any of gitimate not does Clause Jeopardy the Double interdependent sentence an part crete of sentence after greater a imposing prohibit collat appeal or a successful partially after government. the appeal a successful jeopardy attack, is no double there eral the defendant explained that The Court part of unchallenged enhancing an to bar finality in his sen of expectation no “has the fulfill to sentence interdependent an the concluded appeal the until tence Thus, Evans’s intent.” original court’s The Court expired.” has appeal time to not on remand does sentence 396-month “expecta of lack defendant’s a again cited prohi Jeopardy the Double violate sentencing” original finality in his of tion for the multiple punishments against bition in Jeopardy Clause Double as the critical offense. same Goldhammer, v. Pennsylvania quiry 353, 28, 30, 88 L.Ed.2d 106 S.Ct. 474 U.S. Carolina The North V. (1985).

183 Issue. v. Pearce and Gold Following DiFrancesco Pearce, Supreme Court the In hammer, have concluded many circuits does that the confirmed Constitution successfully appeals who a defendant severe sentence a more imposing pack prohibit sentencing multi-count part one successfully appeal who when a defendant any to finality as expectation of age has no again is convicted Therefore, his first conviction ed the Dou sentence. part the 723, S.Ct. at 89 U.S. a new trial. 395 after not bar resen does Jeopardy Clause ble However, Process Clause the Due the carry out on all counts tencing vindictive from sentencing judge bars the intent. See judge’s original defen because the (2d a sentence 52, Gelb, ly 944 F.2d 59 v. States United guard To successfully Welch, appealed. dant 928 1991); v. States Cir. vindictiveness, danger ing majority approach). A minority of judge Court held that “whenever a impos pre-Guidelines compared cases instead es a more sentence upon severe a defen total sentence after remand with the total trial, dant after a new the reasons for his on those same counts doing affirmatively so must appear appeal. before the [and] See United upon objective Monaco, be based information 860, con 884-85 and cases cerning (11th part Cir.1983). identifiable conduct on the cited Under ap- this defendant occurring after the proach, time of the Pearce presumption if applies original sentencing proceeding.” 395 the defendant receives the same 726, at 89 S.Ct. 2072. This principle tence but was convicted of fewer counts applies to after a after urges remand. Evans us to apply vacated on aswell to resentenc- minority rule and reverse his 396- after a ing second conviction. See Di month total sentence because the district Francesco, at 135-36 & n. 101 court increased his sentence on the four 426; Mancari, S.Ct. United States v. laundering counts on remand. We Cir.1990), reject cert. de this contention for two reasons. nied, 499 U.S. First, we conclude that pre no L.Ed.2d 253 argues his sec sumption of vindictiveness arises when the ond 396-month sentence violates this due district court resentences defendant on a process principle. multi-count conviction in with accordance

This record contains no hint of ac Part 5G of the Sentencing Guidelines. To vindictiveness, tual so Evans must estab *6 determine the proper total punishment, lish that the presumption Pearce of vindic the Guidelines authorize the district court applies. tiveness But the presumption to consider relevant beyond conduct only applies if the second sentence is four corners of the conviction, offense of “more severe.” In the case of a one-count including uncharged and even acquitted conviction, the does not presumption apply conduct. Once the punishment is when the same imposed sentence is determined, follow Part 5G directs the court to ing defendant’s appeal. successful sentence multiple counts of conviction as Arrington, States v. 255 F.3d an interdependent package, and to use Cir.2001). Though Evans received the consecutive as well as concurrent sentenc remand, same total sentence on 396 ing to construct a combined sentence equal months, he argues the district court violat to punishment. the total Under this sen ed Pearce increasing his sentence on tencing regime, aggregate an sentence on four of the seven in counts constructing his remand that equals the initial aggregate 396-month sentence on remand. sentence simply carries out the district court’s original intent, regard

A number of federal cases have consid- 5G1.2(d) less of § whether has caused the ered how to determine whether a second aggregate sentence to be constructed sentence is more in the severe context of a somewhat differently. There is no reason multi-count conviction. Most circuits have presume to that played any vindictiveness concluded that the Pearce presumption in role this process. apply does not so long the total sen- imposed tence upon greater remand is no Second, we that at note resentencing than original the total sentence. See Unit- Evans received the same total sentence for ed States v. Campbell, 67-69 conviction, the same counts unlike de- of (5th Cir.1997) (collecting cases and adopt- fendants applying cases the minority successfully ap- who Thus, defendant criminal convictions. multi-count to rule Id. at of his conviction. primarily peals an element Monaco, which on even end, a defen- his contention. 2072. To that relies, support not does “count-by- rejected a not be made may expressly generally dant’s sentence Monaco concluding comparison, after a successful count” on remand more severe if apply would presumption Pearce a judge imposes a “whenever so reason, increased whatever judge, for “the a defendant upon severe sentence more the same by1 on Count the sentence doing trial, for his a the reasons after new on the sentence decreased that he amount be affirmatively appear [and] so must n. That 884-85 2.” 702 at Count concern- objective information upon based this remand in on happened what precisely part of conduct on ing identifiable was (The sentence pre-Guidelines ease. of the the time occurring after defendant one count only because in Monaco vacated Thus, Id. sentencing proceeding.” original at the of evidence for lack was dismissed in- aup presumption Pearce sets less trial, would be fact that a second on remand creasing a defendant’s principle Guidelines’ under the significant appeal. after successful sentencing.) conduct of relevant in this case is dispositive question reasons, had court the district For these imposed the District Court whether all Evans on to resentence jurisdiction upon Mr. Evans severe sentence more conviction, the 396-month of counts disagree I on remand. his the Double either not violate did tence my colleagues’ conclusion with presump- the Pearce Jeopardy Mr. his sentence. not enhance did Court vindictiveness, unsup- Evans’s and tion of counts—two convicted seven Evans was is with- argument equal protection ported Act, Mann one violating the counts out merit. Mann to violate conspiring count by the The 396-month Act, separate four counts The case is affirmed. court district interest are counts of laundering. The with di- remanded ini- At the money-laundering counts. four *7 Judgment an amended to enter rections received sentencing, Mr. Evans tial Imprison- in which the Case a Criminal money launder- each count months on so as to is modified page 3 ment section Following his successful ing. count of convic- on each sentences impose months to 54 him sentenced District Court sentencing that com- consecutive tion and hold that would counts. I these on each of Sentencing Guide- Part 5G the ply with of these of each increasing the Court’s lines. severe more represented sentences purposes. Pearce tence for ARNOLD, Judge, Circuit S. RICHARD dissenting. Mr. Ev- contends government The severe because Dis- not more Because ans’s sentence dissent. respectfully

I remained Monroe Evans’s has term of incarceration Court increased his total trict by 30 months fact does not This on four counts months. the same—396 order, violated each, hold that Court I would however. judge’s insulate in North as defined rights wholly un- process his due rationale would government’s Pearce, 711, 89 S.Ct. 395 U.S. v. Carolina Court If the District Pearce. dermine L.Ed.2d for each count adjust the sentences free to defendant, the over- long as so against the judge that a trial Pearce established constant, then defen- remains all sentence vindictively in act may gain nothing dants from a successful ap-

peal on individual Thus,

counts. government’s rationale

creates a right appeal that carries no

consequent remedy for the defendant.

Because I consider the District Court’s

decision to enhance the sentences on each

of Mr. Evans’s convictions for money laun-

dering a more severe sen-

tence, I would find that his sentence de-

prives him of liberty process without due Therefore,

of law. I respectfully dissent.

In re GALLETTI, Abel Cosmo aka Galletti,

Al and Sarah

Galletti, Debtors.

United America, States of on behalf of agency,

its the Internal Revenue

Service, Appellant,

v. Galletti;

Abel Cosmo Sarah

Galletti, Appellees.

In re Briguglio, Francesco aka Frank

Briguglio, Angela Briguglio, Angie

aka Briguglio, Debtors. America, Appellant, Briguglio,

Francesco aka Frank Bri

guglio; Angela Briguglio, aka An

gie Briguglio, Appellees. 01-55953,

Nos. 01-55954. Appeals, States Court of

Ninth Circuit.

Argued and Submitted May 2002.

Filed Aug. 2002.

Amended Nov.