United States v. Paul H. "Bud" Holmes

481 tions and that the package contain- district count related to court did not err One skirt, related to the test the other denying Osunegbu’s Mrs. sup- motion to Mrs. Osu- containing pillow. package press the evidence obtained as a result of because the correctly points out that negbu the warrantless search of the contents of time, at the same packages were stolen two conclude, however, Box 173. We that Mrs. mail of stolen offense possession Osunegbu improperly convicted twice for the same convictions occurred.24 Two Osunegbu’s for the same offense. Mrs. jeopardy double violate sentence is therefore vacated. The matter clause.25 is remanded with instructions that the con- government effectively The con Osunegbu viction of Mrs. on one of the im cedes that the second conviction was counts, possession at the election of the argues proper, conviction and government, is to be reversed and that stand because the sentences count is to dismissed. The convictions concurrently.26 on all counts run We must remaining possession on the count and the though disagree. Even the sentences run conspiracy affirmed, count shall be deemed Osunegby concurrently, Mrs. should be re- Osunegbu and Mrs. shall be resentenced on Bradsby,27 sentenced. v. States those counts. involving multiple a case convictions for a we stated: imposed on the three That the sentences concurrently is immate-

counts are to run separate

rial. sentences on two “Where impermissible,

or more counts are is not cured the existence of error America, UNITED STATES of concurrent sentences.”28 Plaintiff-Appellee, remedy in situation is appropriate v. Osunegbu’s for this court to vacate Mrs. HOLMES, sentence and remand the case with instruc- Paul H. “Bud” government tions for the to elect one of the Defendant-Appellant. and dis-

two convictions to be reversed No. 86-4048. should then re- missed. district court Appeals, United States Court of Osunegbu conspiracy on the sentence Mrs. Fifth Circuit. remaining possession and the count count.29 7, July 1987. CONCLUSION

n conclude that the evidence was suffi- support Osunegbu’s

cient to Mrs. eonvic- 549, 793, Edmonson, (11th Cir.1984); 24. United States v. 659 F.2d 550 733 F.2d 800 United States Arce, 715, (5th Cir.1981); Rosenbarger, F.2d 721-22 Cir. United States v. 633 F.2d 536 689, denied, 965, 2920, (5th Cir.1980), 1976), denied, 696 cert. 451 U.S. cert. 431 U.S. 97 S.Ct. 972, 2051, (1981). 101 S.Ct. L.Ed.2d 351 53 L.Ed.2d 1060 jeopardy protects against 25. The double clause (5th Cir.1980). 27. 628 F.2d 901 multiple prosecutions punishments for the States, Simpson same offense. v. United Mori, (quoting Id. at United States v. 11 n. 98 S.Ct. 912 n. 55 L.Ed.2d denied, (5th Cir.), F.2d cert. (1978); Edmonson, 659 F.2d at 550. (1971)). See 30 L.Ed.2d 187 — U.S. -, Ray also 2093, v. United 26. argues also that Mrs. Osu- (1987), questioning L.Ed.2d negbu right waived the to raise this issue be- sentence doctrine correctness of the concurrent complain cause she did not earlier of the multi- ed., III) (1982 Supp. now that 18 U.S.C. argu- plicitous nature of the indictment. This provides special $50 each assessment of meritless, concerns ment because the error count. the erroneous the indictment it- Bradsby, self. See United States v. (5th Cir.1980); Mastrangelo, Bradsby, 628 F.2d at 906. United States v. Dukes, Miss., Hattiesburg, K.

James Pat- Fanning, Orleans, La., rick New de- fendant-appellant. Weingarten, Integrity

Reid Public Sec- tion, Little, Div., Criminal Jan Nielsen D.C., Justice, Dept, Washington, plaintiff-appellee. BROWN, RUBIN,

Before GARWOOD, Judges. Circuit GARWOOD, Judge: Circuit (“Bud”) Appellant Paul H. Holmes chal- lenges legality one-year that, together imprisonment pursuant to his $10,000, contrary was to 18 U.S.C. § consequent conviction II through charged Counts him plea guilty to V 401(1). perjury testimony 18 U.S.C. in his before the same grand jury statute various dates 1984 and Holmes contends contrary to 18 1623. The both U.S.C. not authorize does alleged indictment grand jury that the but instead was a fine investigating allegations corrup- of official impose as alternative a court permits tion in the Mississippi, Southern imprisonment, District of a fine or either sentences part and as a investigation Appellant’s position is that and not both. examining, among things, other the circum- fully by paying satisfied he stances of the royalty transfer of mineral that he re- cannot now Wiley Fairchild, interests from a Hatties- undergo quired imprisonment. burg businessman, to United States Dis- contends that the sen- Judge Nixon, handling trict Walter and the proper because tence was by appellant, in his capacity then as state contempt or more of- convicted of two attorney area, district in that an office he However, appel- we determine that fenses. 1984, January January held from 1980to to, with, charged pleaded guilty lant was drug smuggling involving a case Wiley only single a offense convicted was son, Fairchild, Fairchild’s Drew hence contempt, and that under section August arose out of an at the arrest sentenced to both a fine 401 he could not be Hattiesburg airport. subject matter of although imprisonment, he could have I allegation appellant Count was the reject either. We also been sentenced to sought keep grand jury to from learn- government’s alternative contention telephone a 1982 appel- about call from 3623, together taken that 18 U.S.C. with Wiley lant’s farm to Fairchild in which 401, imposition a authorized of both appellant Judge Wiley Nixon assured imprisonment fine and drug smuggling Fairchild that case Therefore, hold, under section 401. son, against Fairchild, his Drew would be 50, pursuant Bradley, to In re U.S. by appellant Wiley resolved to Fairchild’s 470, (1943), appel- 87 L.Ed. 608 satisfaction. The other counts in the in- lant, fully paid since he has must telephone dictment did not relate to this discharged impris- from his sentence of Fairchild, Wiley conversation with or in- onment. any deed to other contact with him.1 day I. The same the indictment was re- turned, appellant arraigned, was entered a Appellant originally charged in was plea guilty, of not and was released on 29, five-count indictment returned March bond. 1985 in the United States District Court for 18, 1985, Mississippi, just appellant’s Southern District of Hat- On June trial tiesburg beginning (though Division. Count I of the indict- on this indictment was charged appellant attempting apparently jury ment yet with had not im- impede investigation paneled), appellant interfere plea entered into a grand jury agreement government, in pursuant the federal the Hatties- with the burg pleaded guilty Division various in actions 1984 to which he to an informa- alleged perjury appellant's July agents working 1. Count II in Bureau of Narcotics who were grand jury testimony respecting the federal authorities on that whether case. Count shortly alleged perjury appellant’s February he met with Drew Fairchild after the IV in August drug grand testimony regarding jury arrest and before Drew’s re- his conver- sulting meeting Burgin respecting Burgin’s state indictment and at that sations with Bill any money pending asked Drew if he had then before for the case. criminal case which was Judge alleged alleged appel- perjury appellant’s Septem- perjury III Count Nixon. Count V grand jury testimony jury testimony respecting February grand ber lant’s sought regarding whether he to take control of Drew his contacts with Leonard Melvin re- Attorney's specting pending Fairchild case from the Melvin’s then civil case before office Jackson, Mississippi Mississippi Judge Nixon. from contempt charging following him with day. sec- On appellant tion December 401(1), government agreed and the 35(a)3 tion filed a Rule motion to vacate as against the indictment him. The dismiss illegal part of his ordering sentence appellant give also called for agreement imprisonment. The district court denied testimony complete and truthful January that motion on holding interviews, States at before imposing both fine and trial, grand jury, and at and the United proper pleaded because agreed to make States known the court than guilty more one act sentencing provided any cooperation that, even if the information were to be appellant. day, appellant On the same charging only contempt, construed as indictment, waiver filed a al- court prison was lawful and, lowed the filed information after prison event because term was appropriate hearing under Fed.R.Civ.P. based on the statute and im- 11, accepted appellant’s plea guilty position of proper a fine was a additional judgment the information entered sentence under 18 U.S.C.A. “al- appellant’s plea. Appellant guilty on provision. ternative fines” appeals Holmes continued on bond.2 the denial of his Rule 35 motion to vacate appeared December Holmes On sentence.4 sentencing. before the district court for II. year prison. fine and one The court granted appellant’s motion that he al- emphasize at the outset that the self-surrender, lowed to and directed that only issue this before Court is the district report place of appellant designated to his appellant’s court’s denial of Rule 35 motion 18, 1986, February on confinement to com- to correct his vacating he what impris- mence the service of his sentence to illegal imprisonment portion contends is the imposed onment. The court also a $50 Appellant challenge thereof. does not his pursuant special assessment 18 U.S.C. plea guilty any or conviction or Then, government’s 3013. on the mo- § procedures leading question thereto. The tion, court ordered the indictment dis- presented is or whether the missed. comports gov dered the court with the in day Later on December erning statutes.5 sentenced, appellant promptly after he was presented by appellant, issues The stated tendered the fine in full to the them, opinion in order this addresses deputy clerk of the United States District (1) are: both and imprison- whether a fine Hattiesburg, in which clerk thereupon Ap- imposed authority ment can be under the accepted receipted for. pellant paid special single contempt assessment the of section 401 for a of- $50 Fed.R.Crim.P., 35(a), opinion currently 2. reflected in United. As 3. Rule in ef- (it Nixon, (5th Cir.1987), Judge 816 F.2d fect has been amended effective November Nix- 1987), provides: "The an il- court correct on indicted was and tried on one count of time____" any legal Appellant sentence at con- accepting something respecting of value an offi- "illegal tends that his case involves an sentence." (18 201(g)) cial act U.S.C. and three counts perjury grand jury testimony, acquitted appeal Following notice of from the Holmes’ 201(g) section to the count and one of the motion, denial his Rule 35 district counts, perjury and was convicted on two of the January suspended execution perjury involving testimony counts his concern- during pendency this Holmes’ sentence relationship to his the Drew Fairchild case appeal. appellant and whether ever discussed it with Appellant government him. testified as a law, wit- question purely dis- 5. This among concerning, ness in that case other freely court’s re- trict denial motion things, telephone the 1982 call from his Wright, farm C. viewable this Court. See 3 Federal Wiley Judge appellant Fairchild in and Procedure: 2d at Practice Criminal (1982); participated (discussing Nixon and discussed the Drew Fair- see also id. 582-584 §§ Nixon, sentence). illegal child case. motion correct of, imposition (2) fense; he was convicted of both whether is forbidden as to with, only one pleaded guilty offense. charged (3) offense; section contempt whether B. A single contempt authority for independent provided offense of fine in imposition of the district court’s We turn government’s argu- now to the term; (4) and wheth- addition to ment appellant was convicted of multi- er, resolved in foregoing if the are issues ple reject offenses under section 401. We favor, of the fine appellant’s payment his contention, pro- as our review of the being resentenced precludes hereafter ceedings compels below the conclusion that a fine. without charged pleaded with and

only and was language disjunctive section A. accordingly. convicted and sentenced m above-indicated, As indictment only statute is one of against appellant plainly charged him with very provisions Title 18 that few allow offenses, five distinct separately each impose imprison either a fine or a court to numbered count. plea Pursuant not both.6 ment but agreement, however, pleaded Holmes guilty information, govern- to an and the does not ask that we ment dismissed the indictment. The infor- any way contrary read 401 in its mation reads as follows: plain language and concedes that imprisonment may “INFORMATION single contempt offense under section 401 America, “The acting United States of alone, without reference to section 3623. through undersigned its attorney, reading This of the statute is consistent charges that: with that of the Court7 and the Courts,8 apply Circuit and we follow and “1. From July on or about long-standing disjunctive interpreta- continuing March, 1985, through Therefore, by tion. the terms of section Mississippi, Southern District of 401, Defendant, HOLMES, for each offense thereunder the court PAUL H. ‘BUD’ may impose imprisonment, acting a fine or the unlawfully, willfully knowing- applicable portion provides: e.g., (government 6. The employee contracting of section 401 § 432 Congress); (imitating with a member of § 475 “A court of the United States shall have obligations); (making securities or § 489 or punish by imprisonment, fine or coins). possessing likenesses of A somewhát discretion, authority, its such of its larger provide only number of sections for im- other, and none as— death, prisonment 794(a) e.g., (gathering or § or “(1) pres- person Misbehavior of in its delivering foreign defense information to aid a ence or so near thereto as to obstruct the (mur- government); (murder); § 1111 1114 § justice____” administration of § 18 U.S.C. officials); attempted der and murder of federal (emphasis added). (murder manslaughter foreign or of offi- 401, In marked contrast to section 18 U.S.C. cials); (kidnapping); (hostage- § 1201 § 1203 § 402 defines criminal and authorizes 1651, 1652, taking); 1658(b), (vari- and §§ imposition imprisonment, the of "fine or or piracy provisions). ous added). (emphasis both" partial survey (section Our of Title 18 1 to 165, E.g., Green v. United 356 U.S. 1992), majority discloses that the vast of 632, 642, (1958) (stating 2 L.Ed.2d 672 impose criminal statutes allow a court to im- the word "or” in section 401 means that "the fine, prisonment, only "or both." We found imprison- court must choose between fine and statutory provisions two in addition to section ment"); 50, 470, Bradley, In re punishments 401 that allow the alternative of 87 L.Ed. 680 without language. or a fine "or both” (destruction See 18 U.S.C. 1705 of letter boxes Hilburn, $1,000 E.g., or mail: "shall fined not United States v. 625 F.2d more than or (5th Cir.1980); imprisoned years"); & n. 4 not more than three United States v. § 1916 (unauthorized DiGirlomo, (8th Cir.1977); employment disposition 548 F.2d or Miller, lapsed appropriations: "shall be fined not United States v. 540 F.2d more Cir.1976); imprisoned Sampogne, than year”). not more than provide (2d Cir.1976). Some sections put any significance it;’ commit in the ly, did acts of misbehavior and he ‘didn’t empaneled presence Jury the Grand Hattiesburg Division of the Southern “(c)

the refused disclose the substance upon Mississippi, District convened the aforementioned telephone call super- acting February 21, the the of and on falsely Order when he grand Court the jury the United States District testified before vision that he renjember Mississippi, could not Southern District of what was dur- for the said call; ing so the did commit acts of misconduct Jury to said Grand and said near “with said acts all done the Defend- of jus- the administration as to obstruct ant, HOLMES, H. PAUL ‘BUD’ ma- Defendant, regard, In this the tice. nipulate and interfere with grand the HOLMES, H. ‘BUD’ PAUL jury investigation by preventing grand from jury receiving “(a) inquired of relevant evi- they others whether dence. telephone feder- had discussed call with so

al authorities as to be able to tailor his “In of Title violation United States grand jury testimony; Code, 401(1).” own Section “(b) falsely jury testified grand significant respects, In all the substantive February reason he on most of language content and the actual grand jury not advise the about did are information derived from entirely telephone previously indictment, call quoted aforementioned Count I of perti- my margin.9 ‘it did not come mind ...’ part across nent All these acts prevent grand jury learning 9. Those sections of the first count of indict- ored from repeated were in the are telephone ment that information part about a call made in the latter below; emphasized language Defendant, indicated from the farm of those sections included in the information emphasis HOLMES, Wiley PAUL ‘BUD’ H. Fairchild quoted without are are summarized Defendant, Judge wherein Nixon and the brackets: within HOLMES, Wiley PAUL H. ‘BUD’ assured Fair- “INDICTMENT drug his son’s child that case be re- would Jury charges: "The Grand Wiley solved to Fairchild’s satisfaction "COUNT I Defendant, PAULH. ‘BUD’HOLMES. In this At all times material Indictment "1. to this Defendant, regard, PAUL ‘BUD’ H. Holmes, Nixon, [identifying Wiley HOLMES: Fairchild, implication Drew and Drew’s "(a) inquired they others dis- whether drug smuggling at the Hat- in the tiesburg airport]. arrest telephone cussed the aforementioned call authorities so as to be able to tailor federal [Identifying grand jury describ- "2. grand jury testimony; own investigating reports official cor- it "(b) falsely grand jury testified in the including royalty ruption, the mineral trans- July that he had no contact Nixon, Wiley to fer from dling and Holmes’ han- Wiley smuggling drug Fairchild about drug smuggling of Drew’s case]. involving case Drew Fairchild Drew after [Stating "3. that it was material to the 1981; August was Fairchild indicted in jury grand manipu- to learn whether Holmes "(c) falsely grand jury in the on testified Drew’s lated case as a of his relation- result February 1985 that the reason not he did ships Wiley]. with Nixon and grand jury advise the about the aforemen- [Stating "4. that it was material telephone previously call tioned ‘it did that jury (a) grand to know whether dis- Holmes my not come across mind and he ‘didn’t ...' (b) Wiley, Drew’s case Holmes cussed it;’ significance put any ...to the the discussed case with Nixon after miner- "(d) to disclose the the substance transfer, refused of royalty (c) al and discussed Nixon telephone call when on Febru- Wiley royalty aforementioned the case after the mineral ary falsely he the testified before transfer]. grand jury that he could not what remember July From on or “5. about and call; during the said and continuing through the March in South- "(e) witness, sought to influence a whom he Defendant, Mississippi, ern District of the testify grand jury knew was in the about HOLMES, acting unlawfully, H. ‘BUD’ PAUL call, testify way the aforementioned in a willfully corruptly knowingly, influ- did Defendant, ence, that would favorable to the impede endeavor obstruct and and did HOLMES; influence, PAUL ‘BUD’ H. impede the obstruct and d:ie during Defendant, said justice, “with all acts done administration of the the that Defendant, HOLMES, period manipulate aforesaid of time PAUL PAUL H. ‘BUD’ the HOLMES, grand prevented H. ‘BUD’ endeav- jury investigation by with the interfere clear, information, it is alleged “inquirpng] are for they the of others whether had three of telephone the same as the almost verbatim discussed call with federal au- by the indictment as so five acts identified thorities as to be able to tailor his own charged single grand offense constituting jury testimony,” the as the information I of the alleges (a), indictment I. If Count in clause because these Count acts it obviously as alleged single may presence but a not have occurred of that the did, clear infor- then it is likewise court “or so as near thereto to obstruct charged but one offense. justice.”10 Second, also mation administration of moreover, “1” information, appears form of suggests only the information single “2” beginning, charge, but there or especially pertinent at the when Further, provisions constituting three acts “3.” the Federal Rules of Criminal single contempt alleged in a sen- are are all Procedure considered. Unlike the last tence, being subject indictment, four each of three to a counts of the each of charges separate single of that which single concluding clause violation having the same statute and characterizes them as been each of which specifically statute, alleges that same manipulate grand jury done investi- And, information mentions the statute gation. single, is a violated concluding there plainly once and does allegation. and definite- “in violation of” ly identify separate multiple counts.11 face, appears On its the information charge only Third, (b) (c) and to although clauses specify done appellant allege three acts as the that might support separate acts whereby charges,12 the offense was accom means issue is not wheth plished. alleged might Several additional factors tend to er the acts been have First, support charged separate offenses, this conclusion. it is not but whether they clear that could charged. have con were fact On so 401(1) contempt point, victed of section merely our decision in Carter v. United preventing grand jury receiving rele- indictment or shall state each from information customary vant evidence. count the or citation official Code, rule, statute, regulation "In Title violation United States provision or other Section 1503. alleged law which the therein to defendant "COUNT II have violated." Fed.R.Crim.P., 8(a), provides (emphasis Rule added): government’s proof offer of at the Rule "Joinder Offenses. Two or more offenses hearing inquiries alleged reflects that the charged in the same indictment or (a) clause occurred when asked Holmes others separate information in a count each of- about their conversations with the Federal Bu- fense.....” Investigation reau or “the Government.” context, From the it is that evident Holmes’ hearing, Rule At the 35 motion the district inquiries presence made were not in the of the plea indicated it viewed Holmes’ grand jury. Although it is stated the in- contempts, based two outside quiries Jury were "after made the Grand investi- (clause presence grand (a)) jury of the and one gation against led to indictment Mr. (clauses (b) presence grand jury in the 1984,” begun Holmes was nothing in the summer of (c)). has held suggesting inquired is stated that those perjury alone—without additional acts obstruct testified, testify, then or been selected to ing justice contemptuous during or otherwise — so, grand jury, before the intended do punishable by trial was not a court’s that; inquiries asked about nor is it Michael, power. In re See suggested inquiries that the were made in close 1, 79-80, (1945). L.Ed. 79 n. 90 30 The physical proximity grand jury. expressly can Court punished reserved whether one giving perjured contempt for testi Fed.R.Crim.P., 11. Rule 7(c)(1), (emphasis states Michael, mony grand jury. a before In re 66 added): grand jury perju We S.Ct. at 80. ry may have held contempt. “The or the indictment information shall States be a constitute United v. plain, (5th Cir.) Griffin, (perjury concise and definite written statement F.2d constituting justice by of charged.....It facts essential the offer which se obstructs administration of alleged single "closing inquiry entirely”), in a off avenues of cert. denied, count that ... [the committed 62 L.Ed.2d 32 defendant] [the (1979). specified one or more means. The offense] Cir.1943), (5th impose single, States, general covering is a 135 F.2d reject requires us to offenses. Benson v. controlling separate two or more plainly argu multiple offenses government’s United (5th 332 F.2d 291-92 is United States To the same effect Cir.1964). ment. (7th 894, 897-88 Berardi, 675 F.2d Cir. v. aspects proceedings Other of the below Hilburn, States United 1982). Cf only likewise reflect that single contempt a Cir.1980)(involving multiple (5th F.2d 1177 charged. offense was single only contempt a resulted acts that plea agreement The appellant’s described conviction); United charge and Barnette, Cir.) (same), (5th contempt,” offense as “the crime of 546 F.2d 187 did not denied, cert. imposition of address the both a fine and If the information had L.Ed.2d prison, appears contemplated to have contempt charged separate these acts as one term, only possible prison all of offenses, pleaded appellant and if support govern- the inference that both the framed, guilty to an information so differ appellant ment and viewed the information penalties for each of ent and cumulative charging single agree- a offense. The imposed. E.g., could have been fense provided added): (emphasis ment States, Rapp v. Defendant, “The PAUL H. ‘BUD’ Cir.1944) (six in of an different violations HOLMES, to the crime plead guilty will States, v. United junction); Hoffman contempt____ of (7th Cir.1926) (distinct violations F.2d 278 orders). different commitment But of two here, “... United States and the De- gov not the case and we are [T]he

that is agree fendant that should the Court Carter. erned a term impose imprison- decide to only An indication that additional ment, a sentence of no more than one charged single contempt year’s appro- imprisonment would be an imposed only single that the district court priate disposition of the case.” to, purport and did not exam allega impose respecting a fine ple, transcripts further note from the (a) imprisonment of clause re tions plea sentencing hearings both the (b) specting allegations of clauses and appellant, government, and the district (c). If the court’s sentence was not im judge appeared contemplate one single posed as a sentence for a conviction for one offense. offense, absolutely way there is to tell exchange following occurred when imposed on which as what 18, 1985 plea entered his on June experi sertedly separate contempt.13 added): (emphasis was, judge presume, enced district must [appellant’s attor- “MR. FANNING long well aware that it had law plea ... Mr. Holmes will enter a ney]: separate sen this Circuit that distinct and something felony other than a expressly imposed tences must be on each exchange the Government will dismiss separate accused is offense of which the convicted, felony five counts of the indictment. wholly improper and that it is pronouncement separate There is no indication of offenses or of 13. The court’s of sentence states, year merely you being "I sentence to serve one of the sentence for one General, custody Attorney impose another, in the portion for or the like. Plain- another assessment____” $10,000 special and a fine of imposed. ly, sentence was No reference was made to different acts or ($10,000 Obviously, the same sentence separate or to offenses sentences. year) was not on each two judgment and commitment order reflect assertedly separate contempts. No one three 401(1)” merely: "offense(s)” (the respecting "VIO: 18 U.S.C. $20,000 this. It would result in a asserts form); preprinted words fine—which no one has contended total "adjudged and that guilty the court the defendant the court would have had to have for—and charged____The hereby defendant specified imprisonment terms were whether period committed ... for concurrent or consecutive. $10,000.00.” (1) year and One fined the sum [attorney edgeable, voluntary, “MR. WEINGARTEN and has a basis in specific, To be Your fact and the United contains all the elements of States]: information Honor, crime, have I will accept your guilty plea____” Defendant, as the Holmes names Mr. sentencing, At the time of on December under 18 information USC this is an 11, 1985, following exchange occurred 401.... (emphasis added): get Before I “[MR. WEINGARTEN]: [addressing appellant]: “THE COURT sentencing to just I like will to [the issue] your you attorneys discussed with Have briefly set the scene as the crime was Bill of charge in the Information case____ to committed in this you seeking plead are guilty? which crime, course, place “The took have, “[Appellant]: your I honor. Jury. Grand Mr. Holmes had been in times____ [Reading “THE COURT: the informa- Jury couple the Grand [appellant] ... did commit tion] acts____ “Mr. Holmes learned that we had come regard, In this the Defendant upon the evidence and he knew he when inquired of others ... [testified went back into Jury the Grand a third disclose____ falsely ... refused to [and] time going that he was to be asked about fact, you, phone “Did charged do the acts call. He things did three to____ pled he the Bill of Information? [Describing the three acts listed in the plead He did, “[Appellant]: information.] I Your Honor. contempt. crime of course it’s you “THE COURT: Do Of understand the crime, unique it’s felony, not a it’s charge in the Bill of Information? misdemeanor, not a it’s an obstruction do, “[Appellant]: I Your Honor. Basically pled what he to was offense. “THE COURT: The statute under preventing Jury get- Grand from you charged are pro- ... does not ting evidence that it was entitled to specified penalty, vide for a but leaves it receive. within the discretion of the im- Court to pose imprison- a sentence of a fine or In accordance with “[THE COURT]: specified ment with no limitation in that pursuant plea agreement en- statute____ into, Holmes, tered Mr. I you sentence year serve one in the custody of the you “THE COURT: Do understand the General, Attorney impose $10,- a fine of you? as I it to charge read assessment____” special 000 and a hearing At the on the motion to vacate you “THE pleading COURT: Are prison January are, fact, guilty you guilty because appellant paid however, after had charged? the crime government urged that “the Court legal, intellectually should find a honest “THE COURT: What the Govern- way preserve prison sentence.” The charge ment’s this ? evidence[] government advanced three alternative charge “MR. WEINGARTEN: If first, means to that end: the court trial, the Government went would arising could view the from one prove____ contemptuous act and the another, theory from on the that the infor- “These efforts to obscure mischar- charged mation three offenses phone call form the basis of acterize this specific because it “delineated three acts” contempt charge found this infor- occurring both “outside and inside the mation. second, Jury”; Grand even guilty

been found [addressing appellant]: authority impose “THE COURT the court had a fine as 3623; your plea Because I find is knowl- an additional sentence under third, pertinent part provides (footnote the court could rescind the as follows added): prison and order the sentence served. fine “(a) An individual convicted of an of- appellant’s mo- The district court denied may fense be fined not more than the adopted the first and second

tion and greatest of— and, urged by government in grounds the “(1) specified the amount in the law addition, could the sentence stated that setting offense; forth the February any corrected at time before “(2) applicable the fine.14 the but did not rescind amount under sub- (c) section[15]; section of this whole, the record makes Taken as a “(3) in the felony, $250,000; case of a charged totally clear that it “(4) in the case of a misdemeanor re- to, with, guilty was convicted pleaded death, sulting $250,000; in or single offense of and sentenced “(5) in the pun- case of a misdemeanor Accordingly, now contempt. address by imprisonment ishable for more than remaining alternatives advanced the the months, $100,000.” six upon by relied the district government and court. interpretation The of section 3623 advo- government that, cated the 3623: The “alternative C. Section fines’’ single contempt offense, a court can order provision prison under the statute and a government provi- contends that a fine —as an additional —under Act, sion of the Criminal Fine Enforcement speaks section 3623. That 98-596, disjunctive, allowing No. 98 Stat. codified impose Pub.L. a court independent offers greatest at 18 U.S.C.A. fine “not more than the of” alter- “or” authority imposition (a)(1), (a)(2), (a)(3), (a)(4), for the of a fine in natives prison (a)(5). addition to a sentence ordered under clearly does not argument suggest- statute. Section enti- claim but we view its fines,” applies impose tled “alternative a fine as an offense^ 81, 1984, (1) committed after and in additional sentence December exists either because hearing, gives close of the dis- Title 14. At the the Rule 35 18 U.S.C. Section 3623 ... ruling, denying authority impose court issued trict its oral a fine on a defend- to, of, following grounds: independent motion on the ant in addition authority provided specified offenses. charged "It is clear the defendant was in the Hence, imposition of the sentence to a separate information with three acts of con- prison term is authorized 18 U.S.C. tempt which are set forth therein in clear and terms____ pay and the sentence to a fine 18 U.S.C. unambiguous fact, paid 3623. As a matter of the defendant special imposed by this $50 assessment pled guilty "... Had the defendant to a authority Court under the of 18 U.S.C. 3013 contempt, proper act of challenge, punishes without him be- prison under 18 U.S.C. 401 would have been yond imposed by However, the limits 18 U.S.C. 401.” only. plead guilty since he to what contemptu- the Court views as one additional (c) provides: 15. Subsection of section 3623 act, ous additional sentence of "(c)(1) proper____ pecuniary If the defendant derives “Further, gain opinion it is the Court that from the or if the offense results pecuniary person, if it viewed the to be loss to another de- herein not, may illegal, great- which it does ... it fendant be fined not than the under Rule 35 more gross gain gross any prior could be corrected at er of twice loss, or twice the time executory. imposition it became unless under this date At the time of of a fine suspend- unduly complicate pro- imposition would of the sentence the Court subsection February long sentencing process. ed the execution thereof until ... "(2) Except expressly provid- and could make corrections otherwise ed, prior time____Though aggregate of fines that a court thereto [that] so, obligation impose to do on a defendant at the same time for defendant chose voluntary from a common basis to make a race for the different offenses that arise Hattiesburg pay plan, separa- scheme or and that do not cause courthouse the fine term____ distinguishable escape an effort to ble or kinds of harm dam- charged only age, imposable is twice the amount for the "Even the information act, contemptuous the Court would note most serious offense." imposition (i) (a)(1)permits the of a scope subsection section 3623 high that allowed section as Our provi- of statutory review various (2) to or that the derives of sions Title 18 that indicates the amount punish- that the from fact impose a fine fines of authorized various offense stat- are such possible that ments utes some significantly offenses varies felony or and is a misdemeanor offense despite similarity prison a of offenses and (a)(3) (a)(5).16 falls subsection thus within terms respective authorized examining Before these alternatives statutes,18 that, cases, in most section turn, principles statutory of we set forth higher authorizes fine amounts than construction which provided those in the offense statutes. interpretation pertinent identified as to the suggest Congress These facts intend- sentencing provisions: of toed allow courts to fix on a more consist- ‘ rule “am “The first is the oft-cited imposed ent basis the amount of fines to be concerning biguity the ambit of criminal permit higher to imposed fines be resolved favor of great statutes should majority of by enacting cases a ’ lenity.” princi is the ... And second broadly (instead applicable statute of specific ple that a more statute will be amending the offense statutes one at a given precedence general more over a time). As Judiciary stated the House one, temporal regardless of their se Report Committee of on the ____ quence principles] serve[ ] [These Criminal Fine Enforcement Act of outgrowth in ‘an of our reluctance to which section became “The maximum multiply punishments crease absent a present fines of except for some of law— ” legislative clear and definite directive.’ recently enacted ones and of some 398, 100 States, Busic United regulatory offenses—are too low to consti- (1980) 64 L.Ed.2d 381 significant punishments tute for the of- involved____ (citations omitted).17 fense To extent increased, maximum fine levels are the fine principle “repeals Another settled is becomes a more severe by implication are not will favored ... and pris- more attractive as an alternative not an repeal be found unless intent to is ‘ ’ ” 98-906, H.R.Rep. Cong. on.” No. 98th 2nd “clear and manifest.” Rodriguez v. — Sess., 16, -, reprinted in 1984 U.S.Code Cong. (1987) & Ad.News 5433 at (per 94 L.Ed.2d cu- 5448-49. These riam) (citations omitted). purposes by holding are not furthered repeal by A im- sec- plication may tion 3623 newly applicable be inferred if a enact- to section 401. provision presents ed an irreconcilable con- (ii) Section not specify does flict an earlier statute. Id. amount within subsection of fine principles With these con- statutory (a)(D mind, struction in we turn language of section relationship Although and its to sec- section 3623 reflects a congressional tion 401. purpose increasing (a)(2) (4) clearly ap- volving dwelling jurisdiction Subsections do not a in the territorial ply. allegation pecuniary Because there is no punishable by United States is also another, gain pecuniary to Holmes or loss sentence, $5,000 fine, twenty-year only 3623(c), and there is 81; vessel, setting punishable by to a also § fire 15, supra, inapplicable, see note is and hence twenty-year involves a maximum (a)(2), depends subsection 3623(c), on section $10,000, likely § fine of 2275. These variations inapplicable. likewise absence piecemeal arose from the enactment any allegation resulting death suffices provi- amendment various criminal offense (a)(4). rule out consideration subsection sions in Title 18. Because all three these felonies, 1(1), are § arson offenses see 18 U.S.C. Statutory also 17. See 3 Sutherland. Construction 3623(a)(3) under section a maximum alternative 1986) (discussing §§ 59.03-59.04 ed. rule applicable fine of each construed). would be penal strictly statutes are to be offense. example, setting 18. For to an fire aircraft punishable by up twenty years $100,000 fine, 32(a)(1); 18 U.S.C. arson in- for ment characterized of fines that can be to the district amount (“Of offenses, (a)(1) sentencing hearing court at makes it here subsection most course, unique crime, it’s a it’s not felony, in offense specified fine amounts clear that misdemeanor.”). And, not a it’s at the higher permitted under than those statutes below, hearing Rule 11 (a)(5) 3623(a)(2) through are subsections pleading clear that made (a)(1) preserved.19 Subsection does something guilty felony.” “to other than a however, smoothly, the con- so mesh Although purports classify 18 U.S.C. 1 statute, which no “amount tempt contains felonies, either all offenses as misdemean- setting the of- in the law forth specified misdemeanors, ors, petty or offense based 401 no mention of Section makes fense.” potential punishment the maximum au- (a)(1) Hence any amount. subsection thorized,20 Court has never appear inapplicable to be to section would applied categorize contempt statute to this (a)(1) cannot construe subsection 401. We felony, a as the terms of section 1 as would urges. as require. determining right In to trial by contempt, for jury the Court has rather (in) Contempt felony is not or misde- a by analogy “decided 1 to 18 U.S.C. that § (a)(3) meanor within subsections penalties exceeding not those authorized (a)(5) and petty imposed for offenses could be language does the of subsec Nor contempt affording criminal cases without (a)(3) (a)(5) apply clearly and to sec tions right jury Frank, to a trial.” 89 S.Ct. (a)(3) applicable 401. Subsection is tion added). (emphasis at 1506 Yet at the same (a)(5) “felony,” and only to a subsection time, recognized the Court “Congress that Yet, only to a applicable “misdemeanor.” categorized contempts has not as ‘seri- ” Supreme Court has never characterized ‘petty.’ (emphasis or Id. at 1505 ous’ misde felony as either a or a added). Similarly, rejected has meanor, it as “an rather described but 4083, providing on 18 U.S.C. that reliance § generis.” offense sui punishable by those convicted offenses Cheff 1523, 1526, 373, 86 16 Schnackenberg, S.Ct. year’s imprisonment may more than a be (1966). Frank v. 629 also L.Ed.2d See penitentiary, in a for con- confined as basis States, 395 contempts, may U.S. cluding they United that since be (1969) (quoting 23 L.Ed.2d 1506 n. 162 are “infamous punished, so therefore containing approval portion Fifth Amendment crimes” for which the Cheff indictment, govern- grand jury language). requires This a notwith- this is how by survey punishable of six 19. Our of Title no means exhaus- sentences in excess tive, petty not higher As to offense misdemeanors fines months. indicates statutes with loss, gain resulting pecuniary in death or are those authorized com- than section 3623(a)(1) pre- thus has the effect of subsection serving appear. example, paratively rare but do For specified the fine amount in the offense financing $1 for one who advances million as (a E.g., not fine of § statute. U.S.C. loan-sharking offender’s activities and another more than six $300 more than not and/or $100,- principal both receives back who falsely represent- fraudulently for months ing imprisoned many profit as as can be for clubs). self as with the 4-H one’s associated twenty years up $2 and fined to million under statutory existing provision. offense provides: section 1 20. Title contrast, maximum fine U.S.C. "Notwithstanding Congress any to the Act of 3623(a)(3) felony would for this contrary: $250,000, and the fine under sub- be maximum “(1) punishable by Any death or 3623(c) 3623(a)(2) be "twice would sections exceeding year imprisonment term $200,000. gross gain,” in this case is a felony. enhance, Likewise, section 3623 not does "(2) Any a misdemeanor. other offense is preserves, statutory misdemeanor, offense section in effect "(3) Any penalty for petty Subsection which, defining for certain offenses. provision fines as set forth in the (a)(2) single only pecuni- applies offenses for does not exceed ary gain another to the offender or loss to not more period of six or a fine of a months $10,000 (a)(3) supra. See note Subsections for an results. than individual individual, both, felonies, (a)(5) through apply only person misde- other than an death, resulting petty offense.” misdemeanors meanors standing potential penitentiary impris- The title of section 3623—“alternative recognized fines,” not “additional onment was standard fines” —indicates Green respect offenses generally. the section was intended to address v. United the amount of might the fine that im be posed Green rather than multiple L.Ed.2d to authorize See House v. fines for a offense. implicitly rejected argu- Court likewise Commissioner, 453 F.2d 982 ment of Justice Black’s dissent there Cir. 1972).22 speaks The statute felony grand —for amount fine that imposed, jury required virtue of the defini- — not to whether 1. Id. at 652 a fine may imposed. tion in 18 n. U.S.C. & 11. Nunn, Nowhere in section Congress See also 3623 did F.2d write that fines provi under that (5th Cir.1980) (grand jury 803-04 sion were to be in addition to fines autho required contempt).21 in federal rized the offense statutes. To the ex tent ambiguity exists about (iv) Section 3623 does not authorize relationship of section 3623 to other crimi additional to those authorized fines statutes, nal interpretation view our of by repeal statute or offense the section as by dictated principle jOl disjunctive provision section “ of we cannot multiply punish ‘increase or if specified Even section 401 an amount ments absent a clear and legisla definite ” say, $50,000 of to exceed Busic, tive directive.’ fine — —and contempt properly regard- even could be (citation omitted). Moreover, we must re (or felony), ed as a misdemeanor never- gard section 401 specific as the more stat theless we would not read section 3623 as dealing ute with the contempt offense of both a fine authorizing imprisonment imposition of in contempt fines contempt for cases, section 401. and section general 3623 as a more recognize 21. We half, that in certain page contexts con- than a and a and it too made no tempts though they have been treated as were contempt mention of felony whether was a or applicable within the misdemeanor; terms of statutes to misde- merely argued it that “the $25.00 meanors. was not a fine but an assessment.” While not explicit respect, in this Gedraitis, McCargo we believe that (3d In United States v. 690 F.2d 351 properly Cir.1982), simply denied, 1071, agreeing read as cert. with that 1527, government. (1983), contention of the 75 L.Ed.2d Section Third Circuit provide imposition does not although for "[c]ontempt held that does not fall punitive; and is not general purpose rather within the its "was felony or classification misdemeanor," support raise revenue to regard it state crime could nevertheless victim com- be pensation programs” by purposes ed as a misdemeanor for “assessment of of 18 nominal U.S.C. Donaldson, allowing by magistrate amounts.” United specif § trial 797 F.2d (3d Cir.1986). designation by judge, ic “As § the district 3013 is not a because the statute, designation lenity" criminal expressly the rule poten there limited “the does not apply; penalties" concerning nor pyra- tial does the rule to those for misdemeanors as sentences, miding provided bringing as the 18 U.S.C. assessment is not a § thus Here, course, particular sentence. contempt dealing Id. wording we are within the literal Nothing criminal statutes comparable section 1. and criminal sentences. exists here to Hence, McCargo bring controlling. this is not within that definition. Appellant McCargo, challenge, has made United States here or below, (5th Cir.1986), special assessment "special we sustained in this $25 case. as- 3013, providing sessment” under 18 U.S.C. § for 22. As we wrote in House: mandatory any person assessments on convict- ed of an sixty-day involved, in addition to a “Where ... there is no collision it contempt. Although proper for section to consult both the section head- 3013 lists assessment amounts offense cate- and the up section’s content to come gories “felony” described in each instance as meaning." the statute’s clear and total "misdemeanor,” whether fits Id. either at 987. category McCargo is not opin- addressed in the governing We observe that the statutes ion. Nor was suggested that issue even in the construction of the United States Code do not page less than a appellant’s half significance headings, brief which address the but that we was devoted to govern- the assessment. The have looked to 1 U.S.C. § 104 in this context. respecting House, ment’s brief E.g., the assessment supra, was less at 988. its terms and those of section dealing with fines in offense convic- of statute $100,000 Construing two generally. to- fine not to exceed punished tions will specific more statute gether, imprisonment. “a Section would not be ' one, general a more precedence over given $100,000 a second read authorize temporal sequence.” of their regardless imposed in could be addition to the Busic, S.Ct. at 1753. $50,000 fine or allowed foregoing principles particularly are underlying where applicable 401 authorizes either a fine or Section govern- provides a fine. The statute imprisonment; section 3623 neither pro lead to the conclu- argument would ment’s language allowing pun specific both vides instances the section 3623 sion that in those nor repeals under such a statute ishments to the fine fine can be in addition Nothing the limitations of section underlying offense stat- by the authorized legislative history sug of section 3623 govern- Thus, example, under the ute. gests purpose. that it had such a We will theory, for a of 18 U.S.C. ment’s violation repeal by implication not find a of the dis $25,000 imposed un- fine could be language junctive of section 401. See Rod and, addition, a fine of der section riguez, supra, at 1392. imposed under sec- could also be strengthened in We are this conclusion 3623(a)(3). reject that construc- tion Congress by the realization that could have unlikely tion. We think it such result easily respect made its intention And, by Congress. since that intended Sentencing In the clear. Reform Act of clearly mandated construction is not Congress provision adopt it is to included now language of section No. principles run counter to the above-noted codified as U.S.C.A. 3551. Pub.L. 98-473, 212(a). expressly This Busic. section § provides, pay “A sentence to fine a respect Accordingly, with at least to to in addition other sentence.” which autho underlying offense statutes 3551(b). Sentencing The Reform Act of § fine, as rize a we construe section 3623 1984, 3551, containing passed section was of fine substituting a amount different by Congress on October the same by the of authorized from that allowed day Congress passed the Criminal Fine En- statute, authorizing opposed as to a fense Act, containing section 3623. forcement in the fine separate fine addition to autho 98-596, 6(a). Congress, Yet Pub.L. No. underlying rized statute.23 Even 3551, enacting provided it in section $50,000 specified a fine maxi section 401 go into effect until would November as, say, a misde mum was classified 98-473, 235, 1986, in Pub.L. No. see meanor, clearly hence within the and was fur- the effective date was December 1985 3623, of section nevertheless section ambit extended to November 1987. See ther a fine and 3623 would not authorize both 99-217, 2, Congress 4. thus Pub.L. No. §§ for of imprisonment violation section 3623, mind, in it enacted section when 401, hypothetical, Section in our would read question of whether fines would be $50,000 “punish or by fine not to exceed penalties, as to all other as well additional imprisonment”; and section 3623 would language provide to an affirmative an- $100,000 for its fine amount substitute Nevertheless, it Thus, question. swer to of section 401. one convict in could, by provide section 3623 violating virtue chose not so ed of section 401 encourage speak the use fines require section This case does not us to ) (see relatively H.R.Rep. supra prison.” those few statutes note No. 98- “as an alternative imprisonment make no which authorize but Cong. Ad. supra, at U.S.Code & instances, may provision course, for a it not, fine. such That intention is News 5449. appear to treat section 3623 as less anomalous holding autho- that section 3623 furthered authorizing penalty in that autho- a addition to though a imprisonment as as fine even rizes well Also, underlying in such treat- rized statute. only underlying one or statute allows instances, would, ment in those be consistent other, not both. intention, Congress' in above-noted enact- Criminal Fine prison in the Enforce- a defendant sentenced ato elsewhere term and Act; provide so could, it did section pay ment ordered to a fine upon payment postpone the effective fine, chose to date be relieved the sentence of us, government asking is that section. imprisonment. Bradley, supra. The facts effect, disregard the effective date are on directly point pur- provisions section 3551. We decline to poses appeal. of this Bradley was sen- do so. six prison tenced to serve months in pay ordered to fine. $500 He was taken stated, For the reasons con custody and prison into committed to provide clude does not September 28. On October his attorney fine, authorization addition paid Noting fine full. that the con- as for viola tempt only imprison- statute authorized section 401. tion of fine, ment Court wrote: Payment D. fine satisfaction day “Later on same the fine had [the the sentence paid] court, realizing that the erroneous, sentence was appellant have delivered to the held that was convict amending clerk an order ed of under section [the sentence] accordingly by omitting any and that his retaining only sentence to fine and both illegal being fine and six imprisonment. the months’ The court contrary to section 401 and not clerk, authorized instructed the who still held the Consequently, section 3623. the district money, return petitioner. it to the court, in appellant’s its determination of it, The latter refused to receive and the motion, holding Rule appel erred clerk has it. legal. lant’s sentence ques final tion, then, is the relief to which opinion “... are of the that the [W]e Appellant that, entitled. contends he since require errors involved in the sentence paid his he is entitled to have [Bradley] shall be freed from fur- prison sentence vacated under In re Brad imprisonment. ther ley, 50, 63 87 L.Ed. 608 paid “When asserts that if the receipted by him, clerk and peti- illegal sentence is the district court should complied tioner had nevertheless be allowed to now resentence sentence lawfully which could been have appellant impose imprisonment only, as imposed. judgment As the of the court the at hearing the Rule 35 indicated it was thus executed so as to a full would intend to do in the event sen the of pen- satisfaction one of the alternative imprisonment tence to both fine and were law, of power alties the the of the court ultimately illegal.24 held In this connec at an end. unimportant was It is that tion, government argues the Bradley that the fine had not been covered into the has by been undermined later decisions and treasury; paid clerk, had it been controlling is not because district courts of the officer the United States autho- resentencing power now have broader it, petitioner’s rights rized to receive because the fine here prematurely paid depend did not on what officer sub- and can be returned before sequently did with money. the imprisonment. serves now We turn these contentions. “It subsequent follows that the amend- ment of the sentence could not avoid the n (i) continuing vitality Bradley of the judgment, satisfaction and the at- Construing predecessor tempt the accomplish statute to end was nulli- 401,25 Supreme the ty. Court held that provision Since one valid alternative 14, supra. imprisonment” note language See "fine tive now found Bradley, in section See 63 S.Ct. at 470. (repealed), 25. Section 28 U.S.C. addressed disjunc- offense and contained the satisfied, original ready sentence has been satis- would exceed what of the could fied, is freed petitioner imposed entitled initially: been have Id., restraint.” 63 S.Ct. of further “In Lange erroneously trial court (footnotes omitted). 470-71 both this case and Bradley appears though control it even was authorized statute in both has followed without deviation been impose one or the other of these Although the this and other Circuits.26 punishments. Lange paid two had has concedes that the decision government days one-year fine and served five [of overruled, explicitly it contends never been prison. The trial court then sentence] under- Supreme Court has since that the imprison- him year’s resentenced to a Bradley by limiting parte Lange, mined Ex The fine having paid ment. Wall.) 163, (1873), (18 21 L.Ed. 872 85 U.S. having defendant suffered one of the relied,27 in upon Bradley United punishments, ‘the alternative DiFrancesco, 117, 101 449 U.S. States v. punish gone.’ the court to further was L.Ed.2d 238 S.Ct. holding Lange, and thus argument not recount in Benz, need full We susceptible dictum are not it suffices point; this application. general dic- confine government urges that the state us to Benz to Lange’s specific tum in context Supreme Court this to do what the Court is, to read has to do—that Di- declined guarantee against punish- “The double overruling impliedly fully as Francesco holdings has ments that evolved in the and, through Bradley. Lange Lange, plainly Court is not involved in this this government contends the latter two parte demonstrates, Ex Lange case. As upon jeopardy rested a double decisions greater not receive a defendant To theory repudiated DiFrancesco. legislature than has sentence au- contrary, find that the problem No jeopardy double thorized. distinguished carefully in DiFrancesco present parte have been in Ex would explained why decision was Lange Congress Lange provided that the First, described unaffected. DiFrancesco punishable by there both language as dictum though imprisonment, fine and even Benz, DiFrancesco, multiple punishment.” (1931), “to the effect that L.Ed. 354 added). (emphasis at 438 101 S.Ct barring increase practice federal plain approval Faced with rule the trial court after service (and, Bradley) impliedly, bar- Lange begun constitutionally punishment that, pun- ring further DiFrancesco, at 438. based.” already suffered, would exceed the ishment that this specifically Then the Court stated authorized, legislatively limits we cannot applicable in cases like “dictum" remained having impose been undermined resentencing would view Lange where DiFrancesco, which, when to that al- or overruled added DiGirlomo, See, prison F.2d and had satisfied no e.g., United States 548 fine and contemnor v. Cir.1977) denied, (8th por sentence), (ordering imprisonment 252 of either cert. 434 U.S. 65, 822, (1977). vacated contemnor was tion of sentence after 54 L.Ed.2d 79 and fine had sentenced to both and Miller, paid); States 540 F.2d United v. been 470, Bradley, 1 & 63 S.Ct. at 471 n. n. 3. 27. See Cir.1976) (same); (4th United States v. 1213 grounds jeopardy Lange relied on the of double (same); (2d Cir.1976) Sampogne, F.2d 766 533 holding a de- and double in Hilburn, 625 F.2d 1177 see also United impris- violating "fine or fendant convicted a (5th Cir.1980) (upholding court's correc district fully statute his sentence onment” satisfied imposing fine and tion of its sentence both fine, barring paying reformation of sen- imprisonment on a offense when Lange, district See 85 U.S. tence court. before the court reformed its sentence district 175, Wall.) ("He (18 only 21 is not at L.Ed. 872 fine); paid v. United States defendant had Barnette, twice, punish- put put jeopardy to actual in but (5th Cir.) (permitting F.2d 187 546 offense”). twice for same ment when a to reform sentence district court its appealed imposing a both contemnor sentence . government urges. Supreme government The Court nevertheless calls to our decisions, earlier may its own involving overrule attention numerous cases a dis- cannot. power Court trict court’s illegal correct an Indeed, sentence. have stated as a suggests also that the general “[fjederal rule that courts have resentencing powers of a district court uniformly held resentencing to correct significantly enlarged by been have Rule illegal an implicate sentence does not dou- 35, Lange did exist which not when and jeopardy rights.” ble United States v. Bradley argu- were decided. We find this Denson, (5th Cir.1979) 603 F.2d unpersuasive, part in ment because the Su- (en banc).29 Correction a sentence can gave weight theory to this preme occur if even service the sentence has Lange its mentions of in DiFrancesco begun, Allen, United States v. 588 F.2d part and in because this Court has indi- (5th Cir.1979), even if the correct that the of Lange Bradley cated bar and be more onerous to the de- against resentencing which, the sen- fendant original, e.g., than the Llerena v. satisfied, impose already punish- tence will States, (5th United 508 F.2d 80-81 Cir. beyond ment that authorized remains in 1975). effect even with Rule 35.28 The Bradley apart cases stand Thus, we find no basis DiFran general rule, from this however. con vary or Rule cesco 35 to from tempt statute authorizes a fine or holdings a Court’s contemnor cannot imprisonment, payment and the full punished by imprison a fine both fine satisfies one single contempt lawful sen ment for offense under alternative involving tence. imprisonment Sentences the contemnor has yet fully not fully paid imprison the fine served or a term ment then he has satisfied that below the maximum lawful alterna authorized subjected analogous, tive sentence and cannot also offense statute are nor are for the same cases in appeals which defendant a dual Congress punish has not satisfying prong. authorized both sentence before either ments. What differentiates the Bradley-type case (5th decrees, Henry, judgments, 28. See United States v. F.2d orders and civil both (en Cir.1983) cases, banc). plurality opinion, during Both the criminal the existence term 309, 312-13, made, dissenting they opinion id. at at which are first is undeniable.” (18 Wall.) joined by 324, 327-29, 330, Lange, judges, six id. at 21 L.Ed. Lange Yavorsky The same statement is made in relationship discuss v. and its with DiFran States, (3d Cir.1924), United 1 F.2d 169 suggesting cesco without Rule renders Lange reached a result similar that of Lange inapplicable when a lawful sentence has too, Bradley. satisfied, Yavorsky, approval is cited fully particularly where resen by Bradley. Bradley, 63 S.Ct. at 471 n. would, 3. In tencing together with the satisfied sen Lange, Yavorsky, purportedly "correc- tence, statutory exceed limits. Other Circuits resentencing tive” was done at the term as same facing Bradley adoption issue since the original prob- so that was not Rule 35 also have treated as a still procedural juris- lem. It was not want of controlling (cit precedent. supra See note governed dictional vehicle which the outcome following Bradley cases and decided after Further, of those cases. 1946). Rule 35 became effective in See also illegal to correct an sentence on motion was States, (5th v. Gant United F.2d Cir. recognized Holiday v. United 130 F.2d 1947), appeal, on later 308 F.2d 728 Cir. (8th Cir.1942), compan- which relied on the 1982), where we invoked Rule 35 but observed Johnston, Holiday ion case of v. merely existing that it restated law. 161 F.2d at course, 85 L.Ed. 1392 Of Crawford, 796. But see States Holiday pre-Bradley. these cases are 253, (5th Cir.1985) (describing 258 statements in Henry plurality opinion relationship about the note, however, general 29. We that this state- Lange minority and Rule as 35 “dictum a cases, govern Bradley-type ment does not be- court"). of the en banc Lange quoted cause the discussion of above Lange, alsoWe that observe which of from DiFrancesco indicated that the Bradley, course is relied jeopardy by on in the Court implicated stated: Court viewed double as general power "The particular Lange. of the court over its own the facts of Bradley begin 18, to prison February is that a term on 1986 other cases30 these from his has suf- paid obligation $10,- pay who has also deferred his the defendant authorized maximum sentence fine and his payment fered the 000 rendered of the appellant chal- the 11, Here premature. the statutes. fine on 1985 December We his entirety of sentence but not the lenged pronouncement find in the district court’s calling imprison- for his only the of sentence and commitment order indi- ment, contended and contends which he payment cation that of the fine was illegal since he remained had become subject special arrangement for the In none the cases paid the fine. payment, deferral and we therefore view government the resen- on did relied fine as subject statutory provisions sentence tencing, when combined requiring payment that of a imme- fine be satisfied, impose already suffered and then provision specific diate absent some than greater punishment on the defendant contrary.31 reject the government’s We clear authorized. We think it legislatively that this case contention can be distin- defendant, if a sentenced for that Bradley guished from on the basis $100,000 fine, prison year and a to a prepayment of the fine. asserted days prison of his sentence but serves two pay government not he cannot then be does The also contends only to the fine and thus be resentenced permitted the district court should be pay resentencing cases forced to it. impose return the fine to Bradley. depart provide no basis to from sentence, prison returning because the fine should have the same effect as (ii) prepaid Whether the fine though had never been may be service returned before original As imposed. proposition, an prison sentence might arguable, government’s position be Bradley again find government but we once has and the district compels degree on the addressed situation us relied to some court below above, appellant’s reject argument.32 this As noted order for theory that court’s Fiore, (1982); (3d United numerous cases dem States v. 470 F.2d 1149 cites 30. denied, 938, onstrating 1972), district to resen of a 411 S.Ct. Cir. cert. U.S. 93 cases, however, defendant; 1899, these involve tence a United 36 L.Ed.2d 399 See also resentencing con sentences of Cir.1985) after different (5th Crawford, F.2d States v. 769 253 counts, imposed duplicitous were on finement (upholding punishment on resentenc increased sentences, illegal juxtapositions of dual after illegal were in an after sentences below maximum after sentences that were original were manner and when sentences statutes, or after a defend authorized satisfied). fully But see United States v. entirety appealed of his sentence ant banc; (5th Cir.1983) (en Henry, 709 F.2d 298 fully challenged satisfied a sentence but had not opinion) (vacating illegal plurality sentence great as law None of a sentence as the allows. refusing legal thereby vacate a See, Bradley. cases overcomes the rule of these legal barring increasing sen district court from States, 398, e.g., v. 446 100 Busic United U.S. resentencing). on tence 1747, remand, (1980), 64 L.Ed.2d 381 S.Ct. Cir.), Busic, (3d v. F.2d States 639 940 United 3565(b). 18 U.S.C. 918, 3055, denied, 101 S.Ct. 69 cert. 452 U.S. Rosen, (1981); 764 L.Ed.2d 422 United States v. that, recognize conceptually, least re- — denied, (11th Cir.1985), U.S. 763 cert. F.2d might turning arguably made a fine -, 806, (1986); S.Ct. L.Ed.2d 781 Unit striking from different (7th Cir.), Jefferson, ed States vacated, theory already partially on the served S.Ct. 474 U.S. 88 L.Ed.2d returned, days spent jail cannot remand, (1985), opinion 782 F.2d 697 after However, money not a satisfac- can be. Cir.1986); (7th States v. Heredia-Fernan United Bradley. distinguish tory rationale on which to dez, Cir.), (9th denied, 756 F.2d 1412 cert. Where, example, nine-month one month of a (1985); U.S. 106 S.Ct. 88 L.Ed.2d 90 served, can served has been month Raimondo, 721 F.2d 476 United treating the sentence be "returned" then Cir.1983), denied, cert. nine, (and eight, months instead (1984); v. Pe 83 L.Ed.2d 74 United States giving the month stor, perhaps also credit for (3d Cir.1982); then F.2d McClain v. Nevertheless, ap- served). (2d Cir.), this was not cert. de 676 F.2d 915 text, nied, proach reflected in the 74 L.Ed.2d infra. Moreover, Bradley the court in did offer to clearly district the record here re- contemnor, flects, fine the return the to the government and the conceded at oral Supreme Court nonetheless held that Brad- argument, $10,- that offer to no return the ley’s prison sentence must set entire has been Although made. this Court and, impliedly, that he aside was not obli- recognized a has that defendant can recov- gated accept money. the to imposed er a fine under an unconstitutional statute,33 government the no cites authori- government also contends ty proposition for the that the courts can distinguishable Lange are be- Bradley and compel a to contemnor take back a fine and the those cases defendant did cause in accept, instead, prison. to a term in Nor prison time—not more than serve some government does the ap- indicate whether days of a four six-month sentence in Brad- pellant would to be entitled receive interest days one-year than of ley, not more five a compensation or other for the lost use of in Lange appellant here —while sought his funds if he to recover them.34 yet has not commenced service of the im- alone, Bradley without even these addition- prisonment portion This, of his sentence. problems, al requires us to hold that at- however, affords no for distinction. basis tempts to appellant return the fine to will pris- the Bradley Lange voided entire justify appellant’s pris- the execution of on If sentence. return the fine allows on sentence. the defendant to be treated as if the fine paid, had never been which is government argues, what the then the III.

Bradley have made defendant would respect the language thrust prison sentence, to serve the balance of his cited from Bozza v. days or at all but four least thereof. United 67 S.Ct. to Bradley contemnor entitled (citations (1947) omitted): 91 L.Ed. 818 immediately pay- released from rejected “This Court notwithstanding the ‘doctrine ment of the its elimi- prisoner, guilt whose is nation from the sentence later same estab verdict, day prompt regular escape lished tender its return to contemnor, altogether return because because court wholly change fine would be ineffective committed in passing an error the sen the fact already contemnor had tence.’ ... The Constitution does not re fully quire sentencing satisfied the of his sen- game should be tence. wrong judge in which move Lewis, E.g., specific States statutory provision v. F.2d contractual (5th Cir.1973) seeking (holding recovery one contrary, interest does not run on a claim Act), rely affirming fine need not on the Tucker against the United States. United States Loui (E.D.La.1972) F.Supp. (ordering fines siana, 64 L.Ed.2d returned without interest after a nobis coram Even if could recover proceeding); Bursey, see abo United States v. judgment requiring interest from the date of a (5th Cir.1975) (recognizing 515 F.2d 1228 suit him, apparently the fine to be refunded to there recovery appearance under Tucker Act for not, been, any provision and never has allow court); (cit- deposited bond ing id. at 1233-34 any pre -judgment in such a situation inter allowing recovery improp- cases fines paid. from est date fine was Summa, erly imposed); United States v. government points allowing appel statute (D.Conn.1972) F.Supp. (recognizing suit to lant recover interest for the than more allowing recover fines the Tucker Act and year during which he has use of lost the only /Jost-judgment pursuant pro- interest $10,000, any and we observe effort re 2411(b)). visions of 28 U.S.C. § compensation turn fine without some 34. The version of 28 U.S.C. 2411 in effect at pecuniary the lost use of these funds creates Summa, supra, long- time was decided is no penalty equal at $500 least fine involved (as er in effect. 28 U.S.C.A. 2411 amended Bradley. quite This is different from the 1982) general provision contains no like section less-than-one-day period which Chief Justice 2411(b) and, allowing /?osi-judgment in- interest regarded "de Stone minimis” stead, "any judgment is limited to dissent. 63 S.Ct. any overpayment rendered respect any internal revenue tax.” the absence of a In immunity prisoner— imprisonment.” ishment to a means “fine Recognizing aside it ‘only allowing set what that an amendment this case the court á do, punishment fine in authority had no addition to other substitute^] required by every go law to be done is directions conviction scheduled to ”35 into in upon the of the offender.’ effect November we are none- conviction apply existing theless bound law. Bozza However, purport depart does not Bozza, hy the extent that cases can be Lange Bradley. See “[T]o from pothesized holding may sup in which this (citing Lange Bradley S.Ct. at n. port seemingly curious or unreasonable in “the examples as of cases trial sentences, comparative say it suffices to correct the sentence with- court could not that the asserted unreasonableness flows causing punish- him double out to suffer decision, not from ... from the but ment”). Furthermore, although Congress statutes as wrote them. If prison serve no time in for this will needed, corrective action is it is ... Con “escape[d] altogeth- punishment he has not gress provide that must it. ‘It is not for er.” act, speculate, us to much less on wheth Bradley technical, may overly as be Congress er would have altered its in dissent Chief Justice Stone contended his specific stance had the events of this there, day arguing that the less than one ” Busic v. Unit anticipated.’ case been deprived of his the contemnor been ed S.Ct. was de minimis. money at 471. (1980) (citations 64 L.Ed.2d 381 modify But it is not for us to overrule or omitted). Bradley. Congress also note that has Bradley Congress acted, had more than four decades since in a now manner disposition in was handed down which to amend the that does not affect of this provision limiting pun- statute’s case. charged respect nonfungible 35. We likewise the views of our dissent- and suffered one of the alternatives, ing colleague, learning judi- subsequent resentencing whose and sound so that graced discharge necessarily cial instincts have so this Court over the force him to the other Nevertheless, greater years. we are unable to concur in means that he will suffer "a reading legislature of DiFrancesco. The issue Di- than the has authorized.” One erro- neously imprisonment, "whether the increase of a sen- sentenced fine and Francesco was to a authorized, tence on review under 3576 consti- where either but not both are who [18 U.S.C.] multiple imprisonment tutes in violation of the some of the serves but has not thereafter, fine, Jeopardy paid may by Double Clause.” 101 S.Ct. at 438. Di- not. resentenc- imprisonment Francesco the dictum in "confine[d] [that to eliminate the Benz prohibits the Constitution in sen- pay increase the fine. That the same result forced to begun] Lange’s tence after service of it is paid, the fine is first and the obtains where specific Lange’s context.” 101 S.Ct. at 438. resentencing seeks to enforce context, specific passage fine, as recited in the same eliminating already paid is made DiFrancesco, case, of imprisonment involved a sentence of fine and by Bradley. either the resentenc- clear ing authorizing only under a statute punishment beyond legisla- would exact other, both, one or the but not And, where the de- Bradley tively authorized. also demon- paid fendant the fine and was then resentenced strates, paid retender of the fine does not imprisonment only. specific That is the con- Indeed, change the result. this case is a fortiori resentencing text which of Holmes would here, Bradley, Bradley, unlike there has " present. holding Lange "The which DiFran- any retender of the never been fine approves, plainly cesco refers to and paid year previously, which Holmes over having described the latter as fine "[t]he government, approv- the district court’s paid having and the defendant suffered one of al, to retain and claim entitle- has continued punishments, the alternative ‘the as well as to the sen- ment to ” gone.’ punish court to further was 101-S.Ct.at exception, tence. The case for a “de minimis" goes explain DiFrancesco on to that ‘‘[a]s urged by Bradley as sent, Chief Justice Stone's dis- demonstrates, parte Lange Ex a defendant compelling less here than in Brad- thus greater legisla- not receive a sentence than the ley, was retendered no $500 where the ture has authorized.” Id. is, day paid. than a after it was It more course, (and (or irrelevant None of the cases relied on the dissent (one year government) Lange) days a few of the six-month involves sentences to alter" a- served, nonfungible punishments Lange) confinement sentence had been tive and under a stat- authorizing equivalent could have been cured ute either but not both. None in- as that of the unserved time. volves situation where the defendant has dis- reduction that, pur- to conclude I vigorously We are constrained therefore dissent from the holding Bradley, the district court’s Court’s beyond suant to denial the sentence is concur, however, I Rule 35 motion must re- correction. appellant’s in the Court’s versed, the cause remanded conclusion and with di- that Holmes was charged in the imprisonment portion single vacate the information with a rections to count of in and its appellant’s of sentence. conclusion that there is no basis whatsoever course, are, of in many We aware that government’s contention that 18 U.S.C. respects represents miscarriage case a 3623 a authorizes fine in § addition justice. Undoubtedly Holmes deserves to a confinement, to as the serve some district under 18 U.S.C. 401. § plainly court intended. Because the ano- My disagreement with the Court lies en- malous nature of section 401 and the deci- tirely with its authority reliance on the sion Bradley, by in a mistake was made In re Bradley, U.S. S.Ct. judge the district and the (1943). L.Ed. 608 Bradley In re relies beyond imply which is now recall. We no entirely parte (18 Ex Lange, either; the governing criticism of when Wall.) 163, (1874), 21 L.Ed. 872 which was technical, rules are somewhat unusual restricted its Supreme to facts Court application inevitably their will involve DiFrancesco, in United v. States part price. some mistakes. That is L.Ed.2d 328 pretend not should otherwise. The Thus, validity the continued of Bradley is government has advanced several theories extremely questionable. position. to support its has Each at least plausibility, some superficial in our This Court not hesitated reform judgment must In rejected. each cases illegal sentences under F.R.Crim.P. 35 even sort, legal of this where the issues are after legally complete portion a of that arguable equities heavily on one portion sentence has been served when side, temptation strong to bend the imprisonment. served was I find no reason judicial bending Such law itself. of fixed to just hold otherwise because however, legal rules, ultimately tends to be of the sentence Holmes has incurred is a course, destructive the rule of law. Of monetary fine. judicial requires function only us not Amending The Mortar conscientiously, an even-handedly, fairly Illegal law,

interpret Sentence similarly ap- but also ply unique it to facts of each case. The provides Rule 35 “[t]he however, permit latter duty, does not us to illegal correct any sentence at time.” disregard the law order achieve a Not does the District Court have the particular desired result instance. ability illegal to correct sentences under additionally Rule have we held that

The order of the court denying district imposed “when a sentence ... does not appellant’s Rule is REVERSED, 35 motion applicable statute, conform penalty the cause is REMANDED further duty District has a to correct proceedings [the Court] consistent herewith. Hilburn, this sentence.” United v. States BROWN, Judge, JOHN Cir.1980), R. Circuit con- 625 citing F.2d curring part dissenting part: Allen, United v. States 588 F.2d (5th Cir.1979). As the unanimously imprisonment The sentence both and a concludes, a sentence of both fine and illegal fine under very at the § illegal 401 is an sen moment it was and announced. tence, only question determining trial court has the and the duty what relief is available to correct this il indeed, any correct it at even af- time— legal sentence. part ter all or of it has served. been Princi- ples jeopardy Hilburn, protect double do not States person from such (5th Cir.1980), correction. affirmed the eroded, severely has been so I find it neces- of a sentence correction Court’s District imprison- sary developments to examine other in the fine and imposed both law for the best evidence the status of contempt under We did ment for the current law. question there be- reach the was corrected illegal sentence cause Thus, audacious, myself I in the find attempt the defendant to prior position generally impermissible of serious- Therefore, there is portion.1 satisfy either questioning ly whether startling away from the fact way get prior implicitly decision has Court’s illegal from the Holmes’ rulings. overruled its later decisions and announced the Dis- it was very moment Judge uphold As the law and sworn to Court, subject at time to trict my unqualified support enthusiastic 35(a). F.R.Crim.P. In re under correction supremacy the absolute hierarchical Su- necessary factor in our Bradley becomes decisions, preme Court I must have a sub- because, Hilburn, Holmes’ unlike analysis believing for that I fol- stantial basis he not reformed until after sentence was low such a course. There is a substantial fine. paid his doing precedent in the Fifth so. Circuit Rives, Judge Richard T. former Chief in the Foundation Cracks Judge Judge distinguished and a of this appeal— question on this primary Court, position in a found himself similar principal difference with my Judge writing for the three District Court Bradley rule has whether the Court—is panel Montgomery, in the Ala celebrated adoption validity following the continuing Gayle, bama bus case Browder v. Supreme 35 and the Court’s F.R.Crim.P. (M.D. 1956), Ala. F.Supp. aff'd, DiFrancesco, in v. decision United States 145,1 (1956), L.Ed.2d 66 L.Ed.2d 328 101 S.Ct. 449 U.S. stating Plessy Ferguson, 163 U.S. in v. (1980). (1896), 16 S.Ct. L.Ed. 256 by is on Brown v. Board beyond reproach implicitly overruled It is Education, yet and has not been point with this case Supreme Court re L.Ed. 873 Supreme Court. explicitly overruled here, Plessy separate to six times ferred stop inquiry how- Many would expressly without ever obligation Brown v. Board ever, ignore our do so would Nevertheless, the re overruling over it.2 developments later interpret apply Judge District Chief spectful dissent of logical and reasonable in case law Rives, obviously Judge Seyboum Lynne, H. time, it would be At the same fashion. actions, his portent conscious suggest our role equally remiss to wrote: court, we stand in an article III inferior as by impli- repealed of a a statute can be position to the correctness Even review decision, fortiori, judicial A Supreme which has cation. decision of the Court of the law and simply evidence later deci- which

not undone that Court’s been itself, may impaired by be so foundation not the law Bradley’s sions. Yet because today, shepardizes day when one Board. Yet even attempted pay fine the 1. Hilburn Ferguson, listed Plessy Brown v. Board is after the District Court reformed v. by the Rule 35. His check was returned questioning where to date has it—no as informing along that the him clerk with a letter Plessy. expressly Supreme Hence, overruled Court previously fíne had been withdrawn view, majority"s we would under the argu- rejected Court. This Court the defendant’s separate uphold but required to continue fine constitutes ment “that his tender of the transportation several equal cases as doctrine in provision of the one satisfaction of original alternative following immediately Brown. did courts original sen- sentence ... since ... majority earnestly argued, Judge Lynn as the prior defend- to the time the tence was modified case, by prior bound that we are has in this Hilburn, pay attempted the fine.” ant time as it is Supreme cases until such F.2d at 1181. Browder, expressly that Court. overruled J., 717-21, dissenting). (Lynn, F.Supp. dispute Today, that the few would Plessy Ferguson in Brown v. Court overruled v. longer Lange later decisions to furnish year impris- was sentenced to one any reliable evidence. We cannot in onment and a fine $200 under a statute good perform duty conscience our providing imprisonment. either blindly following judges by precedent serving days After five jail, he paid his Plessy Ferguson v. ... when our fine and moved remaining to vacate the complete agreement us in study leaves of his sentence. The Dis- separate equal but doctrine trict Court vacated his sentence and re-sen- longer safely can no as a Lange year’s followed tenced one fact, correct statement the law. In commencing Thus, from that date. the to- Ferguson Plessy think Lange tal sentence would have served though explicitly, impliedly, over- year one days and five which exceeded the that, decisions, under the later ruled and year maximum under the statute. upon rational basis there is now no inability Court traced its to amend a sen- separate equal doctrine can be English tence 1874 back to the common validly applied public transpor- carrier law. It concluded that a Court was with- tation. authority out to vacate a sentence and re- defendant, sentence the even done dur- at 716-17. Id. term, ing the same because it way had no Similarly, my study of In Bradley, re of avoiding portion the already served. 35, Rule leaves me DiFrancesco Hence, the result would be that the defend- firm that Bradley long- the conviction is no ant would serve two sentences for a controlling er a statement of the law. (18 Wall.) Lange, 168-78, crime. 85 U.S. at 21 L.Ed. at 876-78. Tumbling Wall Comes Down Court, Supreme DiFrancesco, language Bradley crucial states: held that parte Lange sup Ex continues to paid When ... the fine was to the clerk port proposition the “a defendant him, receipted petitioner the greater not receive a sentence than the complied portion had with a of the sen- legislature DiFrancesco, has authorized.” lawfully tence which could have been 139, 101 438, 449 U.S. at S.Ct. at 66 L.Ed.2d imposed. judgment As a of the court longer at 347. It supports proposi the was thus executed so as to abe full tion cited in Bradley that once an alterna pen- satisfaction the alternative penalty served, tive of a sentence is the law, power alties of the the of the court Court is unable to reform remaining the [citing parte was at an Lange end. Ex ]. portion legal. to make the total sentence 52, Bradley, In re 318 U.S. at 63 S.Ct. at Supreme When the Court restricted Ex 471, 87 L.Ed. at 609. parte Lange, it made no mention of Brad This not proposition the which Ex However, ley. Bradley relied almost ex parte Lange support. continues to In Di- clusively parte on Lange. By limiting Ex Supreme the Francesco Court restricted facts, Lange Supreme to its the casts parte Lange Ex its facts. The grave validity doubt the continued holding in Lange, Court stated: “The expanded Lange’s original Benz, thus the dictum in States [United v.] lding.3 ho 304, 113, U.S. 51 S.Ct. 75 L.Ed. 354 [282 (1931),] susceptible general are not appli- development The later cor sentence cation. confine the dictum in Benz to rection law under F.R.Crim.P. 35 demon Lange’s specific DiFrancesco, that, context.” contrary strates to the Court’s conclu 139,101 438, 449 U.S. at S.Ct. at 66 L.Ed.2d sion in both Bradley Lange, at 347. longer a Court is no at end an once a discussion, parte Lange, In Ex "unimportant the Court held it that was it was unable to avoid double because *he treasury.” fine had not been covered into already passed fine had into United States 52, 471, Bradley, 318 U.S. at 63 S.Ct. at 87 L.Ed. Treasury beyond and was reach at 609. held, Bradley, Courts. the Court without statutory sentence incurred. “Cor not exceed maximum.” Rol- portion illegal reformed lins’ sentence did of a sentence not violate his rection rights against punishment because, double jeopardy not violate double does manner reformed, his total sentence not punish did ex- if the correction increases even maximum. statutory ceed the ment, the fact that [the defendant] irrele serving the sentence is commenced parte Lange, In Ex option then v. Crawford, United States vant.” was to vacate the earlier available sentence Cir.1985), denied, cert. F.2d begin one, there was no new method — U.S. -, 88 L.Ed.2d 922 106S.Ct. by which Court could amend an invalid Stevens, (1986), quoting United sentence. We now have the in Rule means (9th Cir.), de 1362-63 cert. to credit a defendant nied, already of a sentence served to effectuate also, (1977);4 see L.Ed.2d imposition legal of a consist- sentence 132-39, DiFrancesco, 449 U.S. at v. States Judge’s ent with trial intent. The 342-47; 434-38, at 66 L.Ed.2d 101 S.Ct. record, including that of the Rule 35 hear- 160, 166, States, 330 v. Bozza United ing, clearly Judge indicates the trial intend- (1947), 91 L.Ed. to, minimum, for Holmes ed at a serve a Allen, 588 F.2d v. United States addition, possible, pay term and in (5th Cir.1979). fine. The Holmes fact that won the race paid clerk’s prior to the office and his fine identifies, adop majority As the since Judge correcting illegal sentence hesitat of F.R.Crim.P. we have not tion eliminating preclude fine should illegal sentences even after to correct ed this Court the District Court from cor- See, has begun. service recting his in a way which its Olivares, F.2d e.g., United States justice notions of are served than rather (5th Cir.1986); v. Craw United States urges. way naturally Holmes (5th Cir.1985), cert. de 769 F.2d 253 ford, — -, 88 nied, It is well that a sentence U.S. established (1986); comply Den does United v. which not the letter L.Ed.2d States banc); (5th Cir.1979) (en son, the criminal statute which authorizes it is 603 F.2d 1143 (5th Allen, erroneous that it be set aside on F.2d so United Cir.1979); States, appeal____But in those rec- Llerena v. United cases it was (5th Cir.1975). ognized that an excessive sentence F.2d 78 corrected, though should be even distinguishes cases majority these prisoner already part served of his adopting Bradley’s language that once by term, by discharge of the absolute complied portion with a the defendant appropriate prisoner, by an amend- lawfully have sentence which could of the ment of the the court invalid imposed, may not later re- the Court original jurisdiction____The Constitu- Yet, in States form that sentence. United sentencing require that tion does not Cir.1977), Rollins, (5th F.2d v. wrong game which the should term of defendant was sentenced to a by judge immunity means for the move of ten years years and a term three prisoner. provided for maximum of statute which 166- v. United Bozza years imprisonment. After the defend- ten 91 L.Ed. three-year this served his ant permitted ten-year to be Court subject double will not be coupled so “when Holmes reformed Lange of Ex served, punishment parte already will violation years other three [it] every ruling rejected appel- in DiFrancesco—in Crawford, the Court’s Court fore argument case controlled not bound dictum lants’ that the case.’ We are Rule 35 court, Henry, Cir. States 709 F.2d 298 minority v. and we en banc of a of the 1983) (en banc). “Henry stat- contained dictum Crawford, F.2d at it.” decline follow Ex ‘this is constrained to follow Henry, at 310. quoting Lange generally be- parte understood it was —as direction, Court’s the money under the fied holding. this Court’s therefore, I paid respectfully fine to the clerk is returned. vigorously as a dissent. a fine is not the event of payment of the but rather it is the

permanent money.5 loss of study Rule 35 and

My DiFrancesco’s singular on the case Bradley

limitation re- upon compels me to

lies conclude that there upon is no rational which the Bradley basis America, UNITED STATES of validly applied rule can so that a defend- Plaintiff-Appellee, ant, prevent chosing can the Court from illegal the method in sentence is I distinguish reformed. find no reason to CAMPOS-ASENCIO, Noel Cesar crediting returning between to the de- Defendant-Appellant. improperly paid fendant money into the No. 86-2910 crediting than with him for Summary Calendar. improperly

time parte Lange served. Ex United States Appeals, Court of has been restricted to its and Bradley facts Fifth Circuit. has suffered a similar fate. me, compels

This case with all consci- July supremacy entious deference to the of Su-

preme Court law conclude that the basis longer

for the decision is no valid

and that of the Court is no

longer at an end when a defendant has

satisfied a illegal of an sentence. pre-Rule

Unlike the 35 situation the Brad- faced,

ley Court subsequent amend-

ment of Holmes’ sentence could avoid the judgment

satisfaction by crediting returning $10,000. to Holmes the If done,

this were the Court could then im-

pose, do, as it attempted legally cor-

rect the service of which would

not result in jeopardy. double join

I disparagement its

Holmes’ conduct and that the trial Court

thought prison it deserves sentence. The

District emphatic during Court was

Holmes’ hearing Motion to Vacate that the

circumstances mandated a sentence.

Since all have conceded—and still do—that illegal,

the sentence was constitutionally

demanding correction, I would allow

District Court to reform the sentence so as “miscarriage avoid the justice” identi- day In this power rity time of almost limitless of Holmes cannot frustrate the Court in its Courts, of the Federal there can be no serious purpose illegal to vacate the sentence and im- question judiciary of the to order pose legal reflecting Judge’s pur- repayment by of the fine pose. illegally paid by Holmes to the clerk. The alac-

Case Details

Case Name: United States v. Paul H. "Bud" Holmes

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Jul 7, 1987

Citation: 822 F.2d 481

Docket Number: 86-4048

Court Abbreviation: 5th Cir.