United States v. Patrick Henry Earley

applied the con- carefully reviewed facts of this case. trolling law America, STATES

UNITED

Plaintiff-Appellee, EARLEY, Henry

Patrick

Defendant-Appellant.

No. 85-2673. Appeals,

Tenth Circuit.

April

whether sentences he were consec- preexisting utive to or concurrent with a order, federal sentence five months impris- later and after the defendant was oned, the sentences to be that were consec- utive. district described his la- ter order a “clarification to eliminate ... any ambiguity as to the Court’s intention.” I,R.

Defendant, Henry Earley, Patrick pleaded guilty indicted five counts and of November to two counts distrib- substances, uting controlled offenses he parole in 1982 a committed while on Berry Berry of James W. Bill W. James twenty-five-year federal Be- Associates, Okl., City, for de- Oklahoma & offenses, Earley of cause these had been fendant-appellant. parole reincarcerated as a violator since (William Atty. Joplin, Asst. U.S. Arlene sentence; parole 1982 on his earlier Price, McAlister, Atty., and Karla S. specified a re-release board tentative briefs), Atty., on the Oklahoma Asst. U.S. January date of Okl., plaintiff-appellee. City, for January On the district court sentencing hearing on the conducted HOLLOWAY, Judge, Before Chief During at issue here. the sen- offenses McKAY, LOGAN, BARRETT, tencing hearing the court that commented ANDERSON, TACHA, SEYMOUR, and exposure very had limited his sub- Earley BALDOCK, Judges. Circuit plea bargain, and stantially by his declared a Earley had shown succes- that because EN ON REHEARING BANC time, activity sion of criminal over LOGAN, Judge. Circuit any him no reason to credit with court saw bargain.1 beyond plea reduction of time is appeal issue in this whether a did state whether the court judge who failed to state But federal district And, plea agreement. commentary of favorable result the district court 1. The entire that, nothing wrong with is encour- there’s was as follows: doing legitimate. perfectly aged so, and it's pre-sentence Earley’s re- "THE COURT: Mr. exposure very his substan- he has limited port I of more remarkable ones that one having tially But, so. the benefit of done years plus attempt- and has nine of have reviewed in ing that, simply beyond reason appropriate there fair sentences in find and Earley any Mr. with I can find credit serious that criminal cases. It is one of most probation in time. His violation reduction records that I have and extensive criminal persuasive light argument of the fact nothing Earley is not other know about Mr. seen. I actually just required to been he has report what I that I and than what read punishment another offense. pro- for serve out the said in this have heard from what’s been break do to avoid that was not All he had to ceeding. And, engage But, narcot- early he fit to age law. saw strike me that from an it does lifetime, trafficking, very is a serious offense. throughout has been ics his there circumstances, And, simply gives all these activity under just of criminal succession plea agree- gets of his hop- the benefit absolutely expecting or find that he me no basis for any other no basis for But there is ing any ment. case. for kind of rehabilitation case, plea any consideration. Ordinarily, and in criminal And, accordingly, judgment gives it is the guilty some of itself 3, the regard 1 and expectations on each Counts positive basis for custody to the hardly for is committed basis Defendant. There Defendant Attorney General, representa- his or authorized in this case. tive, years imprisonment very a term certainly favor- Mr. made a for five years, however, severely ten plea bargain, total lim- to run able parole special term punishment as exposure serve ited his total life. rejected petition motion, consecu- would be served reasoning new sentences concurrently preexist- tively May clarifying 3 order was a or- sentence, although during re- der, new, federal not a enhanced sentence to which report presentence counsel had view of the jeopardy analysis apply. of the recommitment informed the court court further stated that the federal II, 4, violation, court, R. and the parole sumption concurrently that sentences run referring January release apparently unless otherwise stated is overcome when date, Earley “just mentioned that been it is clear the intended the sentences punishment for required to serve out the consecutively. to run We reverse. Id. at 13. written another offense.” Our decision here turns on the district probation/commitment or- judgment and authority May court’s to make its 3 order. der, day, same also did signed and filed the statutes or rules we have found sentences the new were state whether permitting a district court to make an order to or concurrent with the to be consecutive respecting previously imposed sentence pre-existing sentence.2 in a criminal case are Federal Rules of Earley placed the Federal Re- was Procedure 35 Criminal and 36. Court deci- Reno, formatory El Oklahoma. Less recognized pow- sions have some additional later, 28,1985, months on March than three er in a court to enhance or counsel before Earley appeared with originally imposed, reduce a sentence with- commission, parole scheduled a ten- which in certain constitutional limits. We discuss 19, April release date of 1985. Be- tative these authorities. received, protests parole cause of it April on commission determined spent parole Earley’s that none of time against his earlier convic- would be credited 35(b) permits Fed.R.Crim.P. a district tion, resulting in a new tentative release sentence, court to reduce a with or without 5,1985. date of December commission motion, days 120 within after sentence is 23, hearing May also set another 1985. imposed or after a mandate has issued

Apparently complaining one of those about appellate pursuant from an court to an Earley’s release date was district 35(a) appeal. permits Rule correction of a imposed who the sentences on the new “imposed illegal manner,” sentence in an 3, January. May 1985, offenses On sua within the same time constraints. The sponte hearing, the district without sponte provi- court’s sua action fits neither judge entered the “clarification” order at sion, nor the time limits of was within here, stating issue that he had intended rules. those (10) year that “such total ten term was to to, with, be consecutive and not concurrent 35(a) Fed.R.Crim.P. also allows the [Earley] serving.” the sentence then was illegal district court to correct an I, May R. 41. The effect of the 3 order internally time. A sentence that is Earley’s prison towas extend term from ambiguous self-contradictory to the 2006, change 1996 to his earliest person point that a reasonable cannot de 5, eligibility parole from December termine what the sentence is be found 1985, 3,May See, illegal. e.g., United States v. Patrick 94, Corp. Michigan, 703 F.2d Petroleum Earley petition filed a to vacate the dis- Faust, (5th Cir.1982); v. order, United States asserting trict court’s that the in- Cir.1982); (8th 680 F.2d rights crease in his sentence violated his Alverson, Clause, 347-48 Jeopardy under the Double and a States Moss, (9th Cir.1982); motion to reduce or correct the Cir.1980); (8th under Fed.R.Crim.P. 35. The district court F.2d reads as follows: "... five You will be remanded at this time.” 2. The sentence order (5) II, years added). each of Counts 1 and to run (emphasis R. 12-13 consecutively with other and the defendant each I, parole special term of life." R. to serve a Cir.1972), pronouncement Here both the oral Solomon, 468 F.2d 850-52 judgment the judge and the written rt. ce nothing concerning commitment order said Several courts L.Ed.2d 182 whether new sentences ran concurrent Scarponi dicta v. United relied on ly with or the sentence Cir.1963), F.2d already serving. The federal any ambiguous proposition adopted courts have illegal correctable is an federal sentences at different 35(a). Rule under concurrently, express run absent an times ambiguous held that all But we have not contrary. Our circuit rec statement court, ognized sen illegal sentences. This concurrent are Hudspeth, tences Subas v. others, approach have taken (10th Cir.1941), in we stated: “Ab can re ambiguities most language contrary, it is sent clear by reviewing the record to deter solved presumed imposed on more that sentences was; original we mine what time, or than one offense at the same at permitted a district court have not times, concurrently.” will run different Id. Thus, original pronouncement. amend presumption 87. This in effect be States, 383 F.2d 154 v. United Baca Recognizing come a rule law. as 929, denied, Cir.1967), 390 cert. such, has, Congress by a statute effective (1968), 868, 19 994 we used 88 L.Ed.2d S.Ct. 1, 1987, changed the rule to November judgment commitment order to consecutively if make federal sentences run of the the intent ascertain times, they imposed at as are different terms we identified the judge, which here, concurrency kept the rule for but at 157. We reiterated of the Id. multiple imposed the same sentences Villano, 98-473, 212(a)(2), rule in United States v. 816 time.3 Pub.L. No. §§ (1987), 235(a)(1), 98 Stat. 2031-32 F.2d which we stated that a 99-217, (1984), No. as amended Pub.L. sentence and commitment order written (1985)(to codified at 99 Stat. be may “clarify ambiguous used to be oral § 3584(a)). 18 U.S.C. § by providing evidence what was 1451; At from the At see also said bench.” sentences concurrent ambiguity applies There no fatal here.4 3. L.Ed.2d accompanying Report Senate character- (1972), held that sentences present law as follows: in which the court ized federal consecutively, on the defend run based would ‘‘Existing permits imposition law of either intention, knowledge judge’s sentences, al pro- ant's concurrent or consecutive but begun serving though time. statutory guidance the defendant had with no vides courts explicit making imprisonment relied on statements The court there the choice. Terms of an under imposed deemed to run counsel to evidence at the same time are defendant's consecutively concurrently standing if consecutive the terms would run rather than sentencing wise____ specified other- ly. court has not at 1085-86. Id. imprisonment A term of Earley judge here found that both The district person already serving prison term is on a attorney were understood the sentences and his sen- be concurrent with the first deemed to solely consecutively, judge relied run but the if for a federal tence the first sentence is sentencing pro- on his own statements at offense, usually after the first served generally ceeding. reflect the These statements imprison- sentence involves sentence if that pun- Earley judge’s should be conviction that for a State or local offense.” ment might severely, to evidence be read ished reprint- Cong., S.Rep. 2d Sess. No. 98th run con- intention that the sentences the secutively Cong. & Ad.News ed in 1984 U.S.Code They to the earlier sentence. Hudspeth, (citing 3309 (10th Cir.1941)) Subas however, explanations plausibly, as read as (footnotes omitted). Earley's require two new decision to the court’s fact, consecutively. to be served argues The United States specific request that prosecutor had made apply in not of concurrent sentences should consecutively to each run clearly new terms two district court instant case because the always other. to run consec- intended for the sentences support record to evidence in the government principally There utively. relies Cir.), (2d or his counsel Wenger, conclusion January render the defendant to the courthouse. The subject illegal to correction tences then informed open the defendant in under the district court Fed.R.Crim.P. court that his new sentences were to be 35(a).5 served to his existing sen-

tence. Because the defendant had not II been transferred custody into executive begun and had not to serve his sentence permits Fed.R.Crim.P. 36 the dis intent, when the clarified his we af- to correct “clerical trict court mistakes” at clarified, firmed the sentence concluding Preston, any time. See United States v. procedure did not vio- (10th Cir.1980). There Jeopardy late the Double Clause. is no contention this case that a clerical made; error was Rule 36 would not autho circuits, common with most of the we May rize district court’s order. bright-line have adhered to this rule to concerns, address locating

III of constitutional for the sentencing process generally that is coex Finally, recognized the courts have that a jurisdiction tensive with the court’s over sentence does have immediate “finali- the individual convicted and sentenced. ty,” power and the court has the to make Lawson, corrections or enhance or reduce the sen- (10th Cir.1982) (judge may increase sen period tence for some interim of time. His- begins it); tence before defendant to serve torically the courts have considered that Preston, 1285, United States v. Jeopardy imposes the Double Clause consti- (10th Cir.1980) (settled law that tutional limits on the time within which the original “when sentencing process power district court has the to alter a sen- one, continuing construed to be a where the tence. yet defendant has not left the courtroom or example, For in United v. States David- day, returned to the courtroom the same son, (10th Cir.1979), 597 F.2d 230 the de- judge may the trial alter the sentence to fendant was sentenced to two concurrent misstatement”); correct a see also Borum terms; the court did not state whether the (D.C.Cir.1967), v. United terms to run consecutively were to or con- 916, rt. ce currently awith federal sentence the de- (1969). already serving. fendant was While the defendant was en route from Recently, approach his sentenc- has been called ing prison, the court radioed the into because of comments escorting United Supreme States Marshal to return United States imposed aware the court intended the new sentences also have been as a result of an incorrect already application sentencing guidelines, to run to the term of the or to unreasonable, serving. require objective was upon The cases some be remand of the case to demonstrating evidence that the defendant was the court— sentencing. (1) imposition aware of the court’s intent at Unit- of a sentence accord Naas, findings appeals; ed States v. with the of the court of or Cir.1985) (clear if, (2) sentencing proceedings evidence the defendant knew of for further required proceedings, the court’s intent is to rebut the after such the court determines 1084-86; sumption); Wenger, original 457 F.2d at see that the was incorrect. (b) Bussey, Changed also F.Supp. United States v. Cir- Correction Sentence for court, (E.D.Va.1982). cumstances. The on motion of the Government, may year within one after the 5. The new Fed.R.Crim.P. to become effective sentence, imposition of a lower a sentence to provide November will even less basis subsequent, reflect a defendant’s substantial provides: for an order like that before us. It investigation prosecution assistance in the or person of another who has committed an of- "Rule 35. Correction of Sentence (a) fense, assistance is to the extent that such a Correction of a Sentence on Remand. applicable guidelines policy factor in state- The court shall correct sentence that is de- Sentencing ments issued Commission appeal termined on under 18 U.S.C. 3742 to 994(a)." law, pursuant to 28 U.S.C. imposed have been in violation of DiFrancesco, begins it, U.S. serve and that trial States But we prohibited 66 L.Ed.2d should S. Ct. be from there- requires increasing argu- think DiFrancesco after do not approach we have heretofore change where, in the ment has force as in the dan- recognizes the estab DiFrancesco gerous special statute, taken. offender Con- practice under which a sen federal lished gress specifically provided recall a defendant and tencing judge can subject appeal. sentence is Under (and “at least we his sentence increase such circumstances there can no ex- be limitation) to this no comment as venture pectation finality original in the yet begun serve long as he has so tence.” 134. As discussed Id. at that sentence.” Id. S.Ct. at 438. above, finality the federal rule locates Several circuits considered the individual crosses a a convicted judge’s power to increase sentences after “bright jurisdiction line” from the service commences since DiFrancesco. custody. to executive DiFrancesco courts ofMost these courts have continued to use concept of constitution does not abolish jeopardy analysis to determine the finality process, from the al constitutionality resentencing. They emphasizes the location of the rather have focused whether a defendant finality bright line of constitutional legitimate expectation vary vary context with final, recognizing with DiFrancesco granting jurisdic ing statutory provisions expectation can be no reasonable that there tion the courts. finality gives govern- when a statute cases, power to the courts’ alter most right appeal least not ment until —at recognized as or correct sentences has been expiration appeal to of the time for the courts’ sentenc- co-extensive with basic taken.6 through extending end of power, Jones, process, limit- appeals and retrial direct Cir.1983), court the district associ- ed the constitutional requirement prison term and a six-month acquittal ated on the merits. See pleading guilty. on a defendant restitution Pearce, North Carolina the defend- a week the called Within 720, 2072, 2078, 23 S.Ct. L.Ed.2d 656 89 and instead a back into court ant (1969). addressed in Di- Under the statute Although four-year the com- prison term. Francesco, power the courts’ to make unsigned impo- prior to mitment order was tencing orders is extended that statute’s sentence, the Eleventh the second sition government specific provisions appeal begun found that the defendant had Circuit appeal is conclud- of a “until the first sentence appeal expired.” to serve his before ed or the time for has 136, rejected DiFrancesco, it. The circuit then 449 U.S. at 101 S.Ct. at increased order, focusing explanation its on the de- judge’s 437. The Court’s reason- second ing suggests approach: expectation analytic legitimate finality. fendant’s Finding deception on there was no “Although might argued pro- part of the defendant and statute perceives length of his

defendant modification, viding the court finally he for sentence sentence determined when 689, (7th Cir.1983), Jefferson, applied 714 F.2d 706-07 6. These circuits also have DiFrartcesco’s — -, reasoning permit grounds, sentences after U.S. 106 increased vacated on other 41, (1985); a convicted service commences when of defendant 34 McClain v. Unit 88 L.Ed.2d overturning multiple 915, (2d Cir.), offenses succeeds cert. de ed 918 appeal. on but not of the convictions 174, some all nied, 74 143 103 S.Ct. L.Ed.2d original sentencing in such cases Because the Busic, (1982); States v. United "package" and con amounts to a of concurrent Cir.), (3d convictions, ap multiple secutive terms on pealing States United 69 L.Ed.2d Cf. expectation defendant cannot claim an (5th Cir.1985) Naas, (ap F.2d v. particular any count that irrevocably analysis plying jeopardy without discuss double Bello, See final. DiFrancesco). 1985); States v. F.2d Cir. McKAY, “a sentence Judge, ruled that be altered Circuit concurring: prejudicial to in a manner the defendant I concur in the result in this case for the serving he started after has sentence.” my reasons stated in concurring opinion in omitted). (footnote Id. at 639 Seventh Villano, adopted appears Circuit to have the same (10th Cir.1987). approach Bishop, in United States v. Cir.1985), F.2d it refused ANDERSON, STEPHEN H. Circuit legitimate expectation to find of finali- Judge, BARRETT, with whom Circuit ty when a defendant had obtained modifica- Judge, joins dissenting: original through tion of his fraud Overriding the district character- misrepresentation.7 ization of his sentencing own proceeding, opinion applies general, re- DiFrancesco does not disestab legal presumption buttable con- relieve a jeopardy analysis lish double the law of fessed, convicted, career criminal of any sentencing; instead DiFrancesco establish separate punishment drug dealing appropriate appli es an framework for its result, conviction. I find that on the facts cation. Unless statute or rule extends case, of this justice to be offensive both to sentencing process further, the limit and the justice. administration of It trivial- imposed by jeopardy analysis double is co izes the role of the district orig terminous with the limit of the court’s judge and imposition frustrates the of crim- inal authority stopping the — penalties inal Congress prescribed power jailhouse court’s “at the imposed. intended to be present door.”8 case defendant in particular When result case is as appeal. took no He began service unpalatable as the legal pro- one here the nearly of the sentence five months before cess from which the result flows becomes attempted the district court “clarify” suspect. Analysis process of that shows sentence. The district court acted too late. suspicion justified. justi- to be Further Accordingly, we hold analysis fication for a pro- critical imposed January 4, will run concur employed cess opinion rently with previously imposed federal Congress found in the passed fact that outlawing law use of the REVERSED. in cases like this. The new law is post-DiFrancesco essentially appeared 7. The one open possibility case re- to leave that it jecting jeopardy analysis recognize is United States a double claim in Lundien, (4th Cir.1985). appropriate circumstances. Id. Lundien, the court shifted its reliance to the Due present 8. We need not consider in the case Process power Clause to limit a district court’s process whether constitutional due concerns punishment through resentencing to increase place temporal an outer begins. limit on the after service Id. at 986. The Fourth power of a court under the Federal Rules of Circuit only that found a defendant who had served illegal Criminal Procedure to correct an days sen expected five of an sentence of ten error, though years tence or clerical even Rules prison and had not his final reached desti- place power and 36 no time limits on the "crystallized” expectation nation court’s did not have a regard. regarding Helge of in length correction See Breest the final of his sentence such moe, (1st Cir.), that 579 F.2d the district court could not correct an inad- (1978) vertent mistake. issue). (addressing process due But Lundien did not cite a Fourth Circuit case Using process analysis suggested from a panel ap month before in the due which the in peared adopt jeopardy analysis. to a Breest double In and the Fourth Circuit in United States Bello, Lundien, (4th Cir.1985), United States v. 1985), supra Cir. analysis Earley clearly conditionally court focused its “on the note had a "date legitimate expectation defendant’s “crystallized” expectation regarding in certain” or length length of his sentence.” Id. at 1070 n. 9. the 28, 1985, his sentence no later than March Although eventually rejected appeared the court the de he when with counsel before jeopardy fendant’s parole double claim because the de commission and it established a re- appealed fendant sentencing package, it lease date for him. months; eligible re-parole he was not effective in a few thus defendant escapes underlying early But when offense until Earley application. its against use of the Congressional sentiment The exact words used at the judiciary strong, so presumption is sentencing proceeding conclusion of critically hint and more ought to take the January are: “on each Counts presumption itself examine both imprisonment ... for a term of five particular in a be used whether it must consecutively years to run for a total of ten especially true when case. That special to serve years [the defendant] acknowledged to be presumption itself is parole term of life.” II. at 13. The R. Yol. rebuttable. judgment and commitment order written reflects the oral statement. R. Vol. I at 29. short, in this case and the result In both Congress majority essentially opinion bases message make our a clear point on the omission at that sentenc- every legitimate avenue for explore duty to ing proceeding express of an statement place a presumption, using sentence was be consecu- that the served persuasion on those who heavy burden of tively underlying to the sentence. majori- choice. The there no other insist such ty opinion assumes no burden. I. first that consideration I contend indicated, I As believe the in this even arise presumption does not beyond discloses proceeding as whole no doubt there is reasonable case because doubt the district reasonable that sentencing judge record that the on this Earley’s drug intended sentence for deal- Earley separately on punish intended to underlying to run is, dealing That conviction. drug Thus, maintain leaves reasonable as a whole record concurrency bears no relevan- sumption of drug dealing sentence was doubt that cy to this case. imposed by an- consecutive Second, exploring point it must be remem- years earlier. judge fifteen other which no rule exists limits the into consid- bered that if enters even to certain rote eration, us, imposition of sentence compel as a matter it does not point in discretion, particular narrow at a have no words over which we law Also, is no sentencing proceeding. there separate punishment Earley relieve of his authority to examine Finally, doubt of our drug dealing conviction. on his whole, tencing proceeding as a and related Earley not immunize does giv- facts, to what sentence was justice. determine from the administration in en, judge’s intent to seek the facts, again, are as follows. The basic duty-bound regard. Certainly, are as we failed to sentencing judge this case search for mani- liberty much at and as pronounce- words in his indicate exact to seek as we are fest intent ment of sentence whether two consecutive matter, intent, or, legislative drug five-year offenses were of the Constitution. intent of the framers concurrently or consecu- served for intent is an exercise The search imposed some tively to a federal sentence engage. continually Con- we which “[T]he years pro- fifteen earlier. the earlier require that stitution does not ceeding, state had another another wrong move game in be a should twenty-five years in sentenced pris- immunity for the judge the means racketeering and prison for interstate States, 330 U.S. Bozza v. United oner.” paroled Earley possession. had been bomb 160, 166-67, 91 L.Ed. 818 67 serving years prior sen- of the after ten tence, in parole his had been revoked review urgent for our reason drug of- The most he had committed the 1982 after is proceeding as a whole sentencing of the subsequently he was sen- fenses for which solemn, formal, sin- sentencing judge’s tenced, case, January the in this proceed- own revocation, of his parole cere characterization of Under the terms the ing. he intend- manifestly any He tells us that kind rehabilitation in the for of sentences; case. ed his recorded consecutive sentencing in statements and actions Ear- added). R. II at 12 (emphasis Vol. It is ley fairly that intention. His disclose unmistakable from those comments that 25,1985 denying petition October order the judge regarded Earley hardened, the as a ” 3,1985 May to vacate his clarification order career “absolutely criminal with no basis any change or en- does not admit to in of hope for of “any rehabilitation kind.” hancement of sentence. It does not con- Those directly observations follow after the sentencing proceeding cede that the as a court’s reference to what sentence will be way any ambiguous.1 appropriate, whole was in considering Earley has majority passes over the matter of defer- one of most and extensive serious crim- inal sentencing judge slight judge ence to the records the has seen with in nine Thus, years Bench. our comment. But the role of the district attention is judge directed what sentencing deems lightly in is not judge to be so appropriate for a lifetime criminal who is sentencing dismissed. At the of beyond suggest rehabilitation. Does that speaks society, acting do judge for is disposed court or would be to no bidding representatives of in citizens’ Con- separate (i.e., a concurrent sen- gress punishment. in imposing The inter- tence) drug dealing? for Parole eligibility society ests of our demand deference to in less than five Certainly months? not. judge function. When district tells vein, In that same judge unmistakable expressly us he in what or she intended continues: us to look or her and tells at his Ordinarily, any case, and in criminal actions, duty words and our of deference plea guilty gives of itself makes clear we should our re- how incline positive some expecta- basis for view. in regard tions to the Defendant. There review, With that turn framework we hardly any is that in basis this case. key portion to the record. A Earley certainly Mr. very has made a tencing transcript cited in the plea however, bargain, favorable and se- opinion in a as if it footnote were not at the verely exposure limited his pun- total very dispute. bringing heart of I am it plea ishment a result of the favorable compel analy- front and center to a detailed And, agreement. nothing there’s wrong import sis that their words so clear that, encouraged per- with and it’s fully can understood. legitimate. so, fectly doing he has THE Mr. Earley’s pre-sen- COURT: exposure very his substantially limited report tence is one the more remarka- having the benefit of done so. ble ones that I have in nine reviewed But, beyond that, simply there is years plus attempting to find fair that I reason can credit Mr. find appropriate cases. criminal Earley reduction in time. It is one most exten- serious and argument probation His violation is not sive I criminal records that have seen. persuasive light fact that he has nothing know about other Mr. actually just required to been serve out than report what I what I read punishment for another offense. All heard from what’s been said he had to do to avoid that not break proceeding. And, engage fit to the law. he saw trafficking, very narcotics is a ser- But, it does strike me that ious early age throughout lifetime, offense. just added). there has been (emphasis por- succession 12-13 This Id. at activity criminal gives abso- relates me tion of remarks back to lutely dialogue hoping prior no basis about whether the offend- expecting or judge’s May quest. 1. The It clear that the himself believed order clarification clarify up any "any ambiguity transcript was to cleared ambi- as to the court’s sentencing language. guity intention’’ response and was made to a re- in the actual racketeering any in his conviction: interstate given credit current be er should thirty shocking months he served possession! for the It is to me bomb that judge ob- The is parole his violation. for anyone could read the statements the separate is a serving parole that violation context, judge, in this factual dealing pun- drug and was offense judge’s conclude that intent that being point The made is separately. ished Earley separately drug sentenced on his bargain plea petitioner’s neither that trafficking conviction is not be- manifest parole for violation time served his nor yond Conversely, a reasonable doubt. is be lenient judge any reason to gave the untenable, absurd, assert, by pre- even dealing. drug for imposing otherwise, sumption Maj. Op. see at 1431 clear his view that the makes judge then judge may have intended n. that trafficking “very is seri- conviction drug separate punishment no lesser or judge’s that, coupled with the Does ous.” Earley put inclined to in line for have been simply no reason that “there is statement early parole possible perhaps as as — Earley Mr. with I find to credit can that five months! three to time,” suggest an intent any reduction without We can deduce reservation that any separate sentence? impose judge explicitly elaborated on his certainly not. Again, pronouncement in the intent actual then concludes: judge he would have ordered the two circumstances, And, all these under drug sentences to be served of his gets he the benefit simply find that prior This is the with the no agreement. there is basis plea But alternative, reasonable deduction. any other consideration. for intent was unknowable or added). The last sen- (emphasis at 13 Id. unclear, majority suggests foot- is repeating: “But there no tence bears 4, requires majority necessarily to note (empha- any other consideration” basis for directly judge would want assume added). sis his intent to to contradict and undermine im- the clear intent to Consistent impose the maximum sentences for judge punishment pose a maximum contrary drug To intend two re- offenses. gave just that —the maximum Earley then irrational, simultaneously is and there sults allowed, years on each punishment five judge wished to no evidence that the count, consecutively, plus a to be served produce an result. To elaborate irrational parole term life. At that special for eligible point again, Earley became underlying address the failed to parole prior sentence less than three on his years fifteen earlier beginning drug his after to serve months judge in different state. But his another later sentences sentences. Had two un- regard absolutely in that intention prior concurrently with the run mistakable. (and initially did he could received Here, then, summary is the impris- receive) resulting in a release date Earley’s perception of judge’s manifest of less than five months on onment drug dealing sentenc- conviction vis-a-vis consecutive, drug sentences of maximum (1) ing: serious and exten- one of the most years. The result erase ten judge had ever criminal records the sive drug offenses. judge’s sentence for (3) seen; (2) activity; of criminal lifetime majority opinion are: the That is where we absolutely hope of rehabilita- no basis for sepa- “presumes” intended tion; (4) plea receipt already of a favorable drug dealing! Earley rate sentence (5) recognition bargain; when ap- understood nor result will not be That engaged in criminal parole he was last It does by our fellow citizens. preciated (6) very of- guilt for the serious activity; “in sentencing game make indeed and, (7) drug trafficking; no basis fense immunity judge means by the wrong move Add other consideration. prisoner.” underly- for the type of criminal conduct sure, dicta, spread II. To be there is through cases, referring generally dozens of to a compelled apply pre- to are not We regarding presumption “rule of law” event. The sumption of concurrence just gen- concurrence. But it that: both controlling majority opinion cites no au- eral and dicta. When federal courts actual- none. Even if the thority, and there is ly necessity deciding face the the direct presumption applied it would be rebutted them, they frequently issue before avoid on the facts of this case. presumption apply it in discernible A. categories situations, of fact the over- whelming majority of which are not analo- analysis, majority states flat noWith gous to this A case. review textbooks presumption of concurrence ly that law,” on citing rule discloses a vast silence on “has in effect become a (10th Hudspeth, subject 122 F.2d 85 supposed Cir. “rule of Subas law” 1941), and a comment from Senate Re passing general or at most a comment so port the Crime Control Act which also application specif- as to be worthless for the cited cites to But comment Subas.2 differing ic cases with fact situations.6 holding dicta.3 The Subas grasping That reflects the trouble with presumption did Subas was They “rules of law” from the ether. are And, apply. reports committee do Senate vaporous apply specific too cases. us, especially they not make law for when Therefore, challenge majority opin- i.e., supporting authority, miscite Subas. premise required ion that we are in this The fact is that no case this circuit has apply presumption case of concur- held that the of concurrence rence because the is a “rule of like apply must case this. No Su which controls us. law” preme Only Court case has so held. two analysis begins Detailed with funda- circuits, Circuit, the Fifth and the D.C. mental fact distinction which exists in applicable holdings (leaving aside the First, sumption of concurrence cases. rebuttability). See Schultz v. imposed involving multiple cases States, (5th Cir.1967); 384 F.2d 374 the same at the same time can be States, 409 Borum v. United imposed by differentiated from sentences (D.C.Cir.1967), Second, the same at different times. (1969). 23 L.Ed.2d Fur greater an even distinction exists where thermore, the result under the Borum imposed sentences are at different times duplicated can not be facts D.C. judges different is the case before Congress promptly Circuit because there —which pivotal us. These distinctions are so provision after enacted a D.C.Code outlaw they have formed the basis for recent Con- presumption.4 The Fifth Circuit gressional legislation subject.7 The analogous left as sole circuit holdi on the ngs.5 requires that sentences im- new statute Cong., SJRep. expressly 2. No. 98th 2d Sess. re- sentences unless the court Cong. provides printed in 1984 U.S.Code & Admin.News otherwise. 3182, 3309. States, (5th 5. See v. United Schultz Cir.1967); McCarthy, Ironically, just prior quoting Aderhold v. 3. dicta from (5th Cir.1933); law, Lyman, controlling majority rejects, Zerbst v. 255 F. 609 Subas as Cir.1919). dicta, grounds language that it is from our opinion Scarponi v. United 1963), Hirsch, majori See, e.g., Sentencing Cir. which undercuts the 6. H. Bross & A. Van ty (1981); position ambiguous Campbell, Sentencing, that an sentence is not an Law 249-50 A. Frankel, 35(a). (1978); illegal sentence under Fed.R.Cr.P. M. Criminal Sentences: Law Mueller, (1972); Sentencing: Order G. Maj.Op. Without at 1431. Williams, (1979); Purpose Process & J. Law of Sentencing & Corrections Congress provision Code enacted D.C. provides title section that a sen- effective November § tence shall run to other 7. 18 U.S.C. time, at a fense at the same or at different crime different different posed for a times, concurrently.” Subas, will run consecutively to sen- 122 served must be time text, At in F.2d at 87. this the Subas imposed other crimes at an earli- tences string appeared, containing a footnote sentencing judge speci- time, unless the er supposedly support to cases in citations to sentence is be served the later fies that the dicta. Examination of the fifteen cases concurrently with the earlier sentence. supporting the footnote reveals that ten by imposed the same Multiple sentences multiple of them involve situations where concurrently if same time run judge at the imposed by judge were the same sentences specify sentencing judge that does not the by same time not at different (or consecutively if a they to be served are Furthermore, judges at different times. otherwise). provide does not statute presumption of the ten cases the follow, the case authorities that analyzing explicitly restricting it stated terms to emphasized that the case before it must be multiple factual situation of sentences the most remote fact situation: us involves by judge See, the same the same time. drug his imposed (5th e.g., Sanford, Hode v. conviction, wholly separate from a dealing Cir.1939); Remus, v. 12 F.2d years by earlier imposed fifteen (6th Cir.) (referring 239 to United States v. judge in a different state dif- different (C.C.1887)), Patterson, F. cert. de I turn now to the cases. ferent offenses. nied, S.Ct. 70 L.Ed. from which The dicta Subas (1926). Additionally, approximately controlling authority if it is opinion cites as apply the half of the ten cases declined to summary of one of the by the court was a of concurrence to the actual presumption arguments. Subas referred to defendant’s See, e.g., facts of the case. States regarding presump- salutary “the rule” Daugherty, U.S. way holding concurrency on its to tion of (1926); Remus, 12 L.Ed. 309 F.2d 239. apply. should not presumption that contrast, other cases cited partial two Furthermore, pre- to the the reference im- footnote do concern sentences by language from sumption followed was judges by at different posed different Daugherty, times, applies presumption. neither (1925), 70 L.Ed. 309 Johnston, McNealy v. every possible the “elimination Walker, Cir.1938); Zerbst sentencing language] cannot doubt [in Cir.1933). McNealy states demanded,” point of the was the which ex- broadly in that do not sumption terms opinion. That, plus the fact that Subas the same plicitly limit down involved sentences handed Subas Its statement is same trial. judge at the time,8 same suffi- judge the same at the dicta, however, McNealy construed because beyond any possibility ciently places Subas uphold ambiguous sentence an being controlling authority in this case. it run intent that damaging Deeper analysis is more even imposed by an earlier an earlier sentence attempt use majority’s Subas apply Similarly, we declined judge. us, authority in a case like that before presumption in the context extended involving judges escaped Zerbst, prisoner sentences different had where dicta, actually serving previous cited here different times. Subas was not reads, not aware “[ajbsent tence, lan- majority, clear where time of prior sentence at the contrary, presumed guage to the it sentencing. In Zerbst subsequent one of- imposed on more than concurrently with one anoth- to run terms were the offender In Subas the sentenced argued, equally petitioner unsuc- years also imprisonment each of three er. seven counts, concurrently.” cessfully, to run con- not to run the words "not that since ‘‘[s]entence unsuccessfully petitioner argued sequence in currently” not indicate the did singular meant to “sentence” they, reference were to be served the sentences prison terms the first and second that while therefore, concurrently. run must consecutively, second and third were to run acknowledged multiple sentences; court that the Fifth Circuit own nor does either applied an extended explain why prisoner’s decision interest situations sentences were where in liberty protected should be in cases judges at different by different times but completely separate judgments issue specify under what we did circumstanc- completely separate trials and convic- applied presump- es such a we would Instead, Zerbst, tions.9 Aderhold cites to had, if tion. Even we would have been and cites to Zerbst three state court deci- Thus, dicta. of how we would turn, In sions. those decisions cite either facing kind of issue rule on the us in this no cases at all inapposite sup- cases as open. case left was port for their determination to sen- allow only footnote contains Subas three imposed tences at different times to run presumption actually cases which concurrently.10 applied multiple there are where sentences emerges What analysis from careful imposed at different times. One of those only the Subas footnote is meagre the most court, justi- our and cases was before we legal support expansiveness for the of the application presumption fied of the on the presumption as cavalierly stated somewhat grounds knowledge of the first sen- body opinion. of the Subas Subse- presumed multiple tence could be because Subas, quent appli- our court considered imposed by sentences had been the same presumption cation of the of concurrence in though at court even different times. Owensby v. United Kwiatkowski, White (10th Cir.1967). setting The factual in Ow- Cir.1932). presumption being was not ensby attempt by involved an applied imposed by sentences were judge to faulty correct a sentence—one of different courts. The other two cases are separate imposed four sentences at cases, they both Fifth Circuit are the by same time him. The correction of the only apply cases presump- cited which itself, faulty while valid in did not tion of concurrent sentences where one specify relationship of the earlier sen- judge respect prior silent with to a sen- newly tences to the corrected by judge. tence a different Aderhold v. original sentencing, each of the sen- (5th Cir.1933); McCarthy, 65 F.2d 452 consecutively. tences was to be served We (5th Cir.1919). Zerbst v. Lyman, 255 F. 609 stated, source, any without citation to Neither any cites federal court cases out- imposed “the valid sentence October 28 in side the in support Fifth Circuit of the [correcting faulty Oklahoma case presumption. gives extended any Neither sentence], explanation presuming specific provision absent a judges are imposed contrary, as conscious of concurrently sentences other is deemed to run judges they at earlier times as are of their with other sentences.” Id. at 60. The familiarity underlying legislation, ought 9. Lack of with the force behind the new multiple obviously tence or sentences is one to be clear to us in this case even without the distinguishing reason for between sentences subject. new on the statute times, handed down at different differ- judges. point ent would doubtless Green, parte 10. See Ex 86 Cal. 25 Pac. 21 sentencing judge out that the here was made (1890) (citing support); parte no cases in Ex sentence; underlying aware of the reason for the distinction therefore the (1899) (same Gafford, 25 Nev. 57 Pac. 484 disappears. I would times; imposing sentence court ing at different cit- merely respond lack of familiar- Black, support); parte no cases in Ex ity obviously problem is what led to the before (1913) (citing N.C. 78 S.E. 273 to Gafford us, my and rest case. There is a further reason inapposite cases in other which the distinction, separate punish- for the however: sumption multiple had been invoked where con- separate ment for crimes committed at different victions had issued from the same court at the Congress penalties times. affixed to the com- term). during same time or In none same separate mission of federal crimes. A criminal any of these cases was their indication that the conviction, time, separate at a different merits result of the concurrence would be to allow the (consecutive) imposition punishment prisoner escape serving subsequent prison by Congress, clearly mandated unless the court term. punishment sepa- declares that rately should not be (concurrent). imposed That is the driv- presumption in original consecutive- mon law our circuit at a was to undo the effect However, Congress time when has ordered the faulty sentence. courts ness of the presumption Owensby in a from the invoked in to retreat concur- presumption imposed only cases where the same rence sentences situation where are Therefore, question. judges Ow- different different the sentences analogous times, factual set- but even in cases where ensby is not ting imposed by us here. the same before are different times. Given the lack of actual author- Circuit case on Tenth No other ity supporting opinion, view concur- discusses holding distressing disregard as a point. holdings rence.11 There are creating express Congress, desire Supreme Court cases. is true for The same expanded rule can last short, compels us no law exists which few months between the issuance of this of concurrence apply opinion legis- and the effective date of the this case. year, the lation later this ultimate effect indicated, Fifth Circuit previously the As gratuitous and being a unmerited indul- analogous to arguably the authority short, gence Earley. majority In the not to case,12 Circuit for a as did the D.C. instant why only does not search for reasons Ear- by effectively overruled period until brief separate pun- ley should not be relieved of of per sum total That Congress.13 conviction, dealing drug ishment for but actually point, authority avail suasive affirmatively why for it searches reasons support. Further able to the of that In he should be relieved conviction. sufficiently more, cases have facts those so, join doing not does not the ranks it they in case that from those different circuits, it as seems to of other federal they may other any persuasiveness lose believe, presumption it of but extends have, especially light in of the sen wise which causes concurrence to situation our tencing transcript available here. clos in holding alone with those to now stand authority is in dicta est found additional the Fifth Circuit. Wenger, 457 F.2d States v. denied, 843, Cir.), 93 (2d 409 U.S. cert. B. (1972). Wenger S.Ct. argument rejection of the final Circuit, of without citation the Second is that it is rebuttable presumption authority, merely said it was supporting ambiguity or can be resolved where presumption willing to “assume” that the rejection presump- cry of the facts out apply to situations of would concurrence course, reprise is, Rebuttability of tion. involving judges at sentences different presumption argument of the However, in the court times. different (section I). apply at all But should not presumption apply refused to Wenger accurately addresses more Thus, except for case. on the facts i.e., ground, silence de- opinion on its own Circuit, and some dicta from the Fifth sentences. concurrent livers Circuit, to appear not the circuits Second concur presumption have addressed by rigid justice distorted Where would be in factual circumstances similar rence appellate presumption, application of the us. the case before willingness to broad courts have shown the “rule” acknowledge some version of in the summary, we find ourselves dicta, inapplicable the facts then find it position expanding com- indefensible States, (10th Cir. dicussing meaning Hill v. United 11. There are other cases Hunter, (10th 1951); 165 F.2d 924 v. Williams contexts state court-federal silence such Cir.1947); Hudspeth, v. 108 F.2d 865 Wall the context of silence court sentences and in (10th 1940). Cir. regarding sequence consecutive in which de These cases are to be served. See, e.g., supra note 5. presumption. Mil 12. See apply clined Cir.1968); (10th Willingham, 400 F.2d 873 ter v. Cir.1953); Hunter, supra v. 13. See note Mills See, examining judicial e.g., intent. knowledge) Un fendant’s have been estab- Daugherty, 269 U.S. 46 lished in the three cited States v. cases. ited (1926) (court ac 70 L.Ed. S.Ct. parameters of the presumption are knowledged only in that one circuit had hardly clearly fixed so If immutable. then cir but overturned voked immutable, instance, why, for respect where silence was with cuit observing Seventh Circuit be ero serious consecutive sentences order which were presumption by sion in the Cir Second served); Wenger, cuit. Solomon, See United States v. (2nd Cir.) (assuming exist (7th Cir.1972), F.2d 850 n. 4 de cert. expanded presumption refusing ence nied, 410 U.S. apply explicit it where statements things L.Ed.2d 182 are Immutable provided defendant’s counsel evidence that Nor they erodable. do reflect differ judge’s in defendant understood silent ences from circuit to expres circuit both consecutively), tent terms would run sions of “rule” application cites, fact The majority opinion situations. (1972); King, L.Ed.2d 83 Buie discloses, and research no case (8th Cir.1943) (affirming correction of all factually on fours with this case. There judgment hearing after a to determine the appear does not even to be a all case on ambiguous intent and to resolve majority opinion threes. But makes sentence). original Pucci silence attempt seriously explore the rebuttabili Cf. v. United Cir. nelli ty sen concurrent 1925) (presumption where no invoked tences on the facts of this case. As shown record evidence of intent to was available dissent, in of section I this such explora an amending justify prison a sentence that so imperative tion is made a common sense consecutively; terms ran evidence record reading sentencing proceedings may including include relevant item an sentencing judge’s deference to the charac note, entry, or from the memorandum proceedings. terization of those records, showing quasi or the ini records observed, Finally, already as has been judgment tial was intended to be consecu opinion, slightest the without the tive). deference, rejects sentencing judge’s the majority opinion suggests finding

The Earley the own that fact defendant silence, sumption despite apply, would not sentence con- knew that the was Earley clearly if underlying was aware the sentences secutive to the Thus, rebuttability objective were consecutive.14 of that there evi- insists be recognized. majori- Earley the is subjectively dence that was however, ty opinion, Maj. demonstrates the what his “aware” of sentence was. legal Op. defect in n. 4. analysis same on rebuttabili- at 1431 Three cases are in cited Nevertheless, ty that it in to approach support shows its the of that conclusion.15 First, binding essentially language itself. it as- the in those cases is not circuit, by judicial sumes this circuit is controlled on this and the conclusion deserves elsewhere, expressions challenged. If sentencing judge’s and it makes no at- to be the irrelevant, tempt acknowledge announcing to is subjective that it is intent the same (sentence rebuttability regard a rule of with law should be true to the defend- aware) clearly consecutive if not matter defendant is ant. If it does what the understood, Second, the thought why first time in this circuit. does it matter subject Earley actually thought assumes that the matter rebutta- what or under- bility general Earley majority’s Applying and the outer limits of stood? rebuttability (de- objective judge, ques- on the for the standard (1972); citing Bussey, States v. Maj.Op. at 1431 n. United L.Ed.2d 83 Naas, (E.D.Va.1982). (5th Cir.1985); F.Supp. (2nd Wenger, States 1084-86 Cir.), supra note 14. 15. See II, prison years term of ten for Count entitled to not what tion becomes: judge’s unenhanced excessive term under as to the intention an understand sentencing of the record? What objective review normal statute. In deter- an fact finder determine objective mining an the terms it is people should have under- reasonable intent as proceedings from the controls, stood intent is to be deter- to believe that Earley entitled Was whole? mined the entire record. reference give him a intend to judge did not added). (emphasis Id. at 563 Our court at conviction for separate for his sentence gave lip approach least service major portion of the dealing, after a drug companion case of United States v. plea bargained away, and counts had been Villano, (1987), where we respect judge’s comments with after an stated: there is ambiguity “[i]f Earley’s record? sentence, then such extrinsic evidence as requiring evi- significant that It is judge’s ... intentions ... be con- clearly under- the defendant dence that (footnote sulted.” omitted). Id. consecutive, stood sentence opinion in qualified Villano then for re- standard majority applies stricter by limiting remark the situations in which presumption than butting a common law ambiguity arises. One of those situations Supreme uses for constitutional Court plain meaning was said to be where the ex- considering defendants’ purposes. judge’s led to words an irrational or subject in a pectations of result. Id. absurd n. 6. Silencewas specifi- Supreme appeal, the among the situations listed creating person- defendants disregarded what cally ambiguity, clearly, unmistakably, the In United know or do not know. ally judge’s silence here leads to an irrational or DiFrancesco, States absurd result if transcript (1980), 426, 437, 66 L.Ed.2d 328 clarify not allowed to intent. defendant, “The Supreme Court stated: such Under circumstances I see no differ- course, charged knowledge of the ambiguous ence between silence and am- provisions, and has appeal statute and biguous words. finality in his expectation is or the time to appeal the concluded until sum, again opinion once majority In the expired.” I that Ear- appeal has contend unwillingness to not ac- demonstrates irrelevant, is ley’s personal “awareness” knowledge plowing ground it new in charged apprehen- an he is and that circuit, extending proceedings on their sion of what the show unwillingness explore in all question, concurrent sentences were face—that avoiding a blind and possible avenues for intended.16 rigid application this common law underlying theme The constant statute, die, by sumption which will for the defendant’s tencing is not search months. few Rather, judicial it is a search for intent. intent, purposely I have point III. this dissent. and over stressed over finding Earley received briefly After up by the Eleventh picked aptly theme is sentence, major- Purcell, presumed 715 a concurrent States Circuit opinion its Cir.1983), remainder of ity the court devotes the where F.2d 561 Jeopardy Clause the Double stated: whether “changing” to a record, barred we a careful review After five months later. original consecutive intent find that the trial majority jeopardy analysis the its double an enhanced Purcell to to sentence Doubt, meaning script, either the same or be evaluated any, could to the if there is as see, e.g., Downey judge, v. Unit- proceedings be resolved a further district could another (D.C.Cir.1937). hearing evidence all available relevant at which ed including subject, tran- on the sweeping determinations as to makes cations and corrections of manifest omis- position subsequent of this circuit to the sions or errors? majority opinion an- Supreme opinion in question by swers the perceiving support in DiFrancesco, “bright-line” DiFrancesco for the approach jeopardy. Thus, to double DiFrancesco is merely viewed emphasizing as “that Supreme DiFrancesco Court held bright-line location of constitutional finali- Jeopardy that the Double Clause did not ty in context vary with statutorily govern- prevent a authorized varying statutory provisions granting appeal ment of concurrent sentences under jurisdiction to Maj. the courts.” Op. 18 U.S.C. 3576. It also held that “the § added). (emphasis The majority increase of sentence on then review under commits following this circuit to the “multiple pun- rigid 3576” did not constitute § bright-line Jeopardy determining ishment in violation the Double rule for when con- Clause.” 449 U.S. at stitutional finality is achieved and double process holding In the of so Supreme jeopardy attaches: crystal Court made clear “that a sentence Unless a statute or rule extends the sen- qualities does not constitutional tencing further, process the limit im- finality acquittal.” that attend an Id. at posed by jeopardy analysis double is co- 134, 101 436. The S.Ct. at Court also ex- terminous with the limit of the court’s pressly open judicial left original sentencing authority stopping — power to increase sentence after the de- power court’s jail- “at the begun fendant has serve house door.” Id.17 Maj. Op. at 1434.18 majority nothing sees new Di- No such ought gleaned rule can or to be Francesco, describing teaching only from DiFrancesco. While the case dealt “appropriate for applying framework” statute, with a it teachings did not limit its existing jeopardy analysis. Accord- constitutional to statutes and prevailing to the constitu- Furthermore, rules.19 opened, it and ex- concept always tional been that double pressly close, refused to relating the door jeopardy judi- attaches at the effect, any, constitutional if of trans- power ends, cial to sentence inclusive of fer to custody. Refusing executive the in- appeals and retrials. As generality di- vitation to subject, re-examine the the ma- “finality rected to the judgments,” there jority now closes that door with scant probably wrong not much with such a analysis. begs i.e., view. But question, when and under Respectfully, what circumstances does the the double rule Jeopardy Double Clause dictate an end of announced antique judicial power sentence, including to inadequate, clarifi- deriving rigidity its from the Jeopardy applies Whether the Double jailhouse Clause 19. Prior to its reformulation of the resentencing rule, to after confinement at all apply except is a door which it would rule, directly which need not majority be confronted face of a statute or the acknowl- in this edges case. There is at least longer some doubt on the that other circuits no maintain question. Lundien, rigid See finality United States v. attaching 769 such a view of at the (4th Cir.1985). F.2d 981 point custody. Maj.Op. of executive See at 1433 majority’s n. 6. See also the discussion of United (7th jailhouse Bishop, Cir.1985) States v. 774 F.2d by 18. 771 door rule announced the (court’s majority power post-DiFrancesco inherent to holding is the first correct a sentence by beyond that induced fraud extends in this the line of circuit. None of the cases Thus, custody). majority executive majority cited so must held. See United States Lawson, (10th Cir.1982); concede at the v. 670 outset either that its "statute or F.2d 923 circuit, Preston, bright unique rule” Cir.1980); line is to our States v. or else Davidson, immediately recognizes exceptions that it to its (10th Cir.1979). avoiding explanation own rule while noteworthy an as to It is that in Law- son, why absolutely prohibits expressly the constitution question open, citing we an ex- left the ception under the circumstances of this case. DiFrancesco. 670 F.2d at 929.

1445 greatly.22 parte Lange matter Ex a notion that sentence discredited acquittal. erroneously equivalent Lange, of the offender been constitutional jail at a time a pay serve term and sentenced both It is advanced re-examining and fine, only circuits are other while statute authorized when posi- jeopardy overturning begun historic offender had or the other. The one pursuing DiFrancesco due to jail completely tions his term and had to serve approaches.20 The fine, more flexible paying his when the finished DiFrancesco, acknowledges, that since prior illegal tried to undo sentence whether the focused on courts “have most alone, in imposing jail effect legitimate expectation that had a defendant attempting to withdraw the fine. The ' Op. 1438.21 Maj. was final.” opinion Lange said: “We are Court here pursue inquiry it refuses to But prisoner fully ... had suf- that when procedure per- or rule of a statute unless punishments fered one the alternative majority’s an- mits. The result him, subjected the law which alone this circuit rule be to isolate nounced will punish power of the court to him further jeop- rigidity of double concept both (Wall) gone.” (empha- 85 U.S. 176 us future ardy analysis and condemn added). Lange Court also observed sis analysis to the rationalizing our cases to resentencing prisoner to serve imposed here. “framework” already he had year’s sentence when reasoning of DiFran- days sentence was to believe five of that served origi- to the attention year careful impose cesco of one and five a sentence Lange, Ex 85 U.S. nating parte punish- cases days, also had effect (1874), (Wall) 163, 21 and United L.Ed. 872 of- for the same the criminal twice 51 Benz, 282 S.Ct. U.S. States v. Stirring ne- language about the fense.23 (1931), make clear that L.Ed. 354 75 being preventing a criminal cessity of finality at the “bright-line” need not occur for the same offense must punished twice custody, of executive even moment finality under read in this context. or statute. rule absence according clause, Ex jeopardy the double with Lange, was that which attached parte notes, Ex the DiFrancesco Court As portion thereof respect to the sentence primary Lange cited as the author- parte served, actually that had been principle that double ity for the custody as executive as soon that attached government at- the federal attaches Busic, 639 v. began. States See United for the tempts punish an offender twice Cir.1981)(“the (3d Court Subas, F.2d As with both same offense. Jeopardy Double Clause parte applied the holding of Ex and the facts actual inquiry Bello, whether the directs the Court’s cesco v. 20. United States expectation of legitimate finali- Cir.1985); Jefferson, defendant had United States — severity in order (7th Cir.1983), ty of his grounds, vacated on other (1985); the sentence -, an increase in determine whether U.S. 106 S.Ct. multiple punishment Cir.), essentially (2d F.2d 915 McClain v. United Id. at 1070. denied, same offense.” cert. Busic, (1982); L.Ed.2d (3d Cir.), just has been Subas case that is not It pur- beyond to serve the its borders extended 69 L.Ed.2d Supreme subsequent poses courts. The observations made similar in DiFrancesco respect Bello, In United States v. 767 Lange parte misapplications of Ex to the rejected Cir.1985), expressly Circuit the Fourth Benz, subsequent dis- See and United States v. reading” of to the DiFrancesco the "narrowest cussion. Jeopardy does not Clause effect "that the Double preclude a an increase in sentence credit clarified that have indeed directly pur- Later cases appeals that sentence Government existing given an served on for time statutory authority.” must be specific Id. suant reimposed is later essentially when that reading narrow 1069. Such a See, e.g., length after retrial. increased or its by The Bello proposed here. one 711, Pearce, S.Ct. interpretation Carolina of Di- North opted a court broader (1969). 2072, above, Francesco, stating: 23 L.Ed.2d DiFran- "As discussed pun defendant has In situation, when the the current there is no rea- satisfied apply son to (emphasis original)), bright-line a imposed” ishment test of executive custody as the 918, finality measure of for two 452 U.S. 101 S.Ct. Court, Supreme reasons: the in DiFrances- (1981).24 69 L.Ed.2d co, convincing has done a job showing of Benz, In 282 U.S. parte that Ex Lange and United States v. (1931), L.Ed. 354 51 S.Ct. Su- compel Benz no such result showing and of finality in preme Court found no an exces- bright that no such line exists in a whole Despite sentence. the fact that the sive host of situations involving appeals, re- prisoner custody, in executive was trials, probation. and revocation of Such a impediment found no constitutional range exceptions seriously undercuts of his sentence. That is to reduction any argument perceives that a criminal Benz, fact situation in and its lan- salient length of his sentence as determined once guage suggesting that double begins and for all when he to serve it. might attach were the sentence to in- be range exceptions That can be extended creased rather than decreased while an of- easily to cover a situation where silence in custody fender executive dicta. a sentence creates no uncertainty and expanded The dicta on an was based read- prisoner’s doubt in the mind as to the ing parte as Lange, Ex which DiFran- where, judge’s therefore, intent principle.” cesco noted “states no such 449 sumption regarding concurrent sentences 138, 101 U.S. at S.Ct. at 438.25 need be invoked. A clarification of the supported by sentence that is duly proper- DiFrancesco Court sentencing transcript constitutes but one ly Lange limited to their Benz narrow part unitary of a continuing sentencing holdings. In expect- turn and as proceeding. unfairly subject It does not ed, holding also was narrow and limited prisoner embarrassment, to the ex- framing to the facts it. before pense, and ordeal of a second trial—one of issue, however, broadly: the Court stated primary objections prosecu- to a second task is determine whether a [O]ur acquittal. tion after Brady, Swisher v. Cf. sentence, pronounced, criminal once is to 438 U.S. 57 L.Ed.2d 705 finality be accorded constitutional and (1978). subject Neither prisoner does it conclusiveness similar to that which at anxiety imposition improper- of an taches to jury’s acquittal. verdict of ly motivated or vindictive sentence that is history We conclude that neither the objection stiffer than the first—an to in- sentencing practices, nor pertinent creasing upon a sentence retrial. See rulings Court, of the nor even considera Pearce, North Carolina v. jeopardy policy support tions of double equation. such an majority opinion cites to United Id. at 101 S.Ct. at 435. DiFrancesco Jones, States v. Cir. then jeopar- went on to hold that no double 1983), support continuing validity dy problem statutorily attached to a autho- bright-line of a test. United States v. appeal rized by government of a sen- Jones, however, change involved already being prisoner, tence served explicit not a case of silence though appeal might even result in an respect one to the sentence im Jones, increased posed by previous judge. majority’s Owensby 24. The reliance on United States v. 25. Our reliance on v. United Benz Jones, (11th Cir.1983) (10th Cir.1967) (disallowing and United F.2d (7th Cir.1985) Bishop, States v. resentencing already where sentence was "be- misplaced. relying Both are on an offender’s ing prisoner been in served” since executive legitimate expectation as if it ordi- clearly custody days) misplaced for three seems narily attached at the moment of executive cus- subsequent light of DiFrancesco. There- tody, clearly a notion undercut a close read- fore, Owensby does not serve kind of ing parte Lange of Ex and DiFrancesco’s narrow- precedent Earley. parte Lange. of Ex justice system in his under areas of the criminal sentencing erred upon and facts of case most need of reform.” Id. at standing of the pris Yet, discovering his error decided S.Ct. at 440. the face of that had been too initially imposed theme, majority term insists DiFrances- attempted prison to increase the require change He ap- short. “a co does not term, found that the Eleventh Circuit taken,” and proach Maj. we have heretofore jeop rights under the double installs, the offender’s Op. through bright- at The Jones ardy had been violated. clause lines, approach. a “facile or routine” resentencing did not court found spanned period us The matter before a for the same multiple punishments impose months, beginning less than five with a offense, time served under since the entire proceeding which the (14 days) plus the time the first sentence perceives (and I ambiguous declare to be (4 resentencing years) imposed under the conclusive), ending judge’s with the permitted by the maximum did not exceed parole communication to the board. Con- Jones, n. Congress. 722 F.2d 638 5. See do not and should stitutional considerations However, defendant’s held that the Jones not attach what at most could be de- respect to expectations with legitimate unclear, incomplete, scribed as an therefore had frustrated length his sentence been pronouncement necessary, of sentence. If resentencing expectations such by the subject clari- prejudiced the defendant be once could not Throughout a fication. such clarification In our begun serving his sentence. process Earley protected by case, asserting is no basis there right process. constitutional due Earley’s expectations legitimately extended discerns constitutional majority instead drug his the firm belief that Earley’s jeopardy part reliance on double sent with his earlier were concurrent custody, and a safe harbor executive appears We also note that Jones ences.26 being immu- with the result constitutional virtually alongside recent stand alone jeopardy nity double generally found that a that “have cases to, grounds. I view that result as inimical expectation of defendant has no reasonable of, princi- constitutional not furtherance begins finality time he to serve his at the “Bright-lines” for constitutional ples. v. Arrellano- sentence." States United judicial desire nearly more reflect themes (9th Cir.1986). Rios, simplicity convenience than consti- commenced its court DiFrancesco doctrine. tutional following analysis with “That its about that clause: observation IV. application proved to be facile argues Finally, majority that under acknowledged routine is demonstrated argument, Ear- process the defendant due emphasis.” changes Id. 449 in direction or ley entitled to a belief At con- S.Ct. at 432. U.S. at appeared time he before his at the court made anoth- opinion clusion of its 28, 1984 and parole board on March revealing “It has been ob- er comment: release date. given a tentative See is one of was served elsewhere that grounds bright- provides tor additional distin- that have 26. Four decisions Naas, although custody post-DiFran- guishing at line of executive when a them. test case, tempted clarify prior silence can and in which the concerns situation cesco distinguished from the case hand. judge forgot should be whether five to indicate Naas, Cir. United States v. 1985); concurrently con- to run with or sentences were States, Borum v. United words, secutively to each other. In other (D.C.Cir.1967), denied 395 type in which the in Naas is the common silence (1969); Owensby v. United concurrency typically invoked States, (10th Cir.1967); and Schultz before us. is unlike the factual situation and Also, (5th Cir.1967). DiFrancesco, as the Naas never discusses previously dis The latter three cases have been notes, per- that weakens a fact tinguished in In addi the text of dissent. might otherwise have. suasiveness tion, cases, pre-DiFrancesco a fact all three are parole alogy 1434 n. 8. Under hear Op. Maj. concurrence. however, always ings, opinion, criminal knows With this stubbornly which is root- subject release date is past, that a tentative ed our paths circuit crosses change Supreme if evidence obtained additional other circuits. Unfortunately, throws into travelling the board we are Moreover, judgment.27 wrong basis for no direction.

“crystallized expectation” early release (1)

can arise where the tran

script provides evidence that the intent of sentencing judge sentence the

prisoner the maximum sentences allowed (2)

under the statute there

was no need to invoke a given the

concurrent sentences factual cir of this cumstances case. Cf. America, UNITED STATES Lundien, 986-87 Cir. Plaintiff-Appellee, v. 1985) (no process violation of due had not so

defendant “served much of his expectations sentence that his as to its VILLANO, Paul “Paulie” C. finality crystallized have and it would be Defendant-Appellant. fundamentally them”; unfair to defeat No. 85-2535. violation either where clar order ification enhanced sentence from ten Appeals, United States Court of years, though to twenty even defendant Tenth Circuit. days had been incarcerated for five before — enhancement), April 21, U.S. -, 1987.

CONCLUSION distressing result in this case stems linking shaky defective and

sumption overly rigid rule of double

jeopardy analysis in sentencing situations.

Clearly, Earley was not entitled any

expectation of constitutional in this

proceeding. majority opinion

What we have

“the substance,” exaltation of form over

something avoided, to be as noted in Di-

Francesco. U.S. at 101 S.Ct. at

440. While the majority thought have

that such exaltation was based on federal practice

court precedent in other cir-

cuits, practice precedents and those

have not critically been examined in the

few cases that have come be- They

fore us. substantially been al-

tered ruling the DiFrancesco and un-

dermined legal gene- examination vein, specific a similar DiFrancesco noted that exact moment time what the limit of Jeopardy provide "[t]he punishment Double Clause does not will turn out 449 U.S. at to be.” right defendant with to know at

Case Details

Case Name: United States v. Patrick Henry Earley

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Apr 21, 1987

Citation: 816 F.2d 1428

Docket Number: 85-2673

Court Abbreviation: 10th Cir.