UNITED STATES of America, Appellee, v. Tommy Lee WHITLEY, Appellant.
No. 83-5093
United States Court of Appeals, Fourth Circuit
March 29, 1985
Argued Dec. 5, 1984.
759 F.2d 327
The government relies on Combs v. Hawk Contracting, Inc., 543 F.Supp. 825 (W.D.Pa.1982). At issue in Combs was the meaning of a provision in the Coal Wage Agreement obligating employers to pay royalties into the Miners Pension Fund based on the amount of “coal produced by each employer for use or sale.” Id. at 827. The district court rejected the company‘s argument that it could deduct the coal‘s ash content in computing its royalty payment, reasoning that any coal mine production sold or used as fuel qualifies for inclusion in calculating royalties. Id. Combs does not compel us to adopt the government‘s position here. First, and most obviously, Combs dealt with construction of a contract between the employers and the union. The court‘s task in that case was to determine the intent of the parties to the agreement. We scarcely need mention that a statute and a contract with similar provisions need not be construed identically because congressional intent may differ from the intent of parties to the contract. Second, the company‘s argument in Combs that the ash content be deducted from the coal weight is qualitatively different from appellants’ argument here. Appellants do not seek a reduction in the coal tonnage based on impurities within the combustible coal itself. Rather they seek a reduction based on the weight of the overburden that is mixed with the coal prior to the washing and sizing operations. Much of this debris is loose material that is inadvertently “scooped” from the mine and loaded with the coal. App. at 41a-42a.
mine tonnage, and the basis for the clean coal transaction.
3. Appellants also argue that the reclamation fee provisions as applied violate the equal protection component of the due process clause of the 5th amendment. Because we have disposed of this case on statutory grounds, we do not meet this issue.
VIII.
We therefore hold as a matter of law, that as used in the statute, “coal produced by surface coal mining” means combustible coal that would qualify as such under ASTM standards and excludes the weight of rock, clay, dirt and other debris in the computation of the reclamation fee. The judgment of the district court will be reversed with a direction to enter judgment in favor of the appellants.
Murnaghan, Circuit Judge, dissented with opinion.
Rodney W. Seaford, Charlotte, N.C., for appellant.
Before WINTER, Chief Judge, RUSSELL, WIDENER, HALL, PHILLIPS, MURNAGHAN, SPROUSE, ERVIN, CHAPMAN, WILKINSON and SNEEDEN, Circuit Judges, and BUTZNER, Senior Circuit Judge.
BUTZNER, Senior Circuit Judge:
Tommy Lee Whitley appeals the judgment sentencing him to 50 years imprisonment entered upon his conviction for bank robbery,
The critical question raised by Whitley‘s assignment of error is whether
The en banc court, overruling circuit precedent to the contrary, holds that
I
While robbing a bank, Whitley grabbed a teller around the neck and held a gun to her head. After obtaining money, he left with his hostage. Outside, he released her and fled.
A grand jury returned a four-count indictment charging Whitley with violations of
Whitley was tried on the original indictment before a jury, Judge Robert D. Potter presiding, and was found guilty on each of the four counts. The district court merged the counts and imposed a 50-year sentence.
II
Relying on North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), Whitley maintains that the imposition of a 50-year sentence upon retrial, after he had been sentenced to only 20 years for the same offense on his original
Due process of law ... requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial. And since the fear of such vindictiveness may unconstitutionally deter a defendant‘s exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge.
395 U.S. at 725, 89 S.Ct. at 2080. The Court fashioned the following prophylactic rule:
[T]he reasons for [imposing a harsher sentence upon a defendant after retrial] must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal.4
395 U.S. at 726, 89 S.Ct. at 2081.
In a companion case, Simpson v. Rice, 395 U.S. 711, 714, 89 S.Ct. 2072, 2074, 23 L.Ed.2d 656 (1969), the Court applied the Pearce rule to vacate an increased sentence imposed on retrial after a plea of guilty was set aside. Although members of the Court differ in their interpretation of Pearce, a majority subscribe to the view that “[t]he Pearce presumption is not simply concerned with actual vindictiveness, but also was intended to protect against a reasonable apprehension of vindictiveness that could deter a defendant from appealing a first conviction.” Wasman v. United States, — U.S. —, 104 S.Ct. 3217, 3225, 82 L.Ed.2d 424 (1984) (Powell, J., concurring).
The record discloses that the trial court, aware of Pearce, was not motivated by vindictiveness.5 But this does not put to rest the second concern of Pearce—a prisoner‘s apprehension that vindictiveness will lead to increased punishment for the same offense after a successful appeal. Thus, if Whitley‘s first and second convictions are for the same crime, Pearce bars the increased sentence because there was no intervening conduct or event to sustain the increase. See United States v. Hawthorne, 532 F.2d 318, 322-25 (3d Cir.1976). For this reason we must re-examine the statute to determine whether
III
Our interpretation of
It was not the intent of Congress by the various sections of
18 U.S.C.A. § 2113 to create a number of distinct crimes for a single bank robbery.... Rather the various sections ‘create different maximum punishments for a single offense depending on whether aggravating circumstances exist’ ...
This pronouncement was unnecessary. On a plea of guilty to a two-count indictment,
In Crawford v. United States, 519 F.2d 347, 351-52 (4th Cir.1975), we held that, depending on the circumstances, violations of subsections (d) and (e) might or might not create separate offenses. We found that the kidnapping was separate from the bank robbery and upheld multiple sentences for violations of both (d) and (e). But the factual distinctions to determine which meaning of
We find guidance in United States v. Gaddis, 424 U.S. 544, 96 S.Ct. 1023, 47 L.Ed.2d 222 (1976), which was decided after both Walters and Crawford. In Gaddis, the Court distinguished subsection (c) from subsections (a), (b), and (d) in these terms: “Receipt or possession of the proceeds of a bank robbery in violation of
Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370 (1957), rejected the government‘s argument that each subsection of
Interpreting
[A]n offense is necessarily included in the offense charged if the elements of the lesser offense are fewer in number than the elements of the charged offense, and if the two offenses contain common elements so that the greater offense cannot be committed without also committing the lesser one.
2 Wharton‘s Criminal Procedure 339-40 (C. Torcia 12th ed. 1975).
We are persuaded, therefore, that
IV
Whitley pled guilty to armed robbery, not to the greater crime of kidnapping in the commission of an armed robbery. When he subsequently was found guilty of the greater crime, the district court explained why it was imposing a 50-year sentence:
The crime with which you have been convicted is kidnapping, although that‘s not exactly what the statute calls it, is to me one of the worst crimes that I have witnessed in a little over a year that I have been here. You took a young lady and you had, I guess, never seen her before, put a pistol to her temple. A trip on your part or anything, anybody opened the door behind you, could have caused you to kill that young lady or perhaps paralyze her for life. That to me is completely inexcusable, particularly whenever you did it just to try to get the money. Armed bank robbery, none of them reached the height, I guess you
might say, of complete disregard of human life of the person—several persons, for that matter. There were several people in the bank, but for a person who just happened to be in the wrong place at the wrong time. You did it, according to the jury‘s verdict, and you did it intentionally and willfully. Therefore I do not feel that I can in any way consider any sentence which is not somewhat commensurate with the crime.7
Because Whitley‘s original plea was to a lesser included offense and subsequently he was convicted of a greater offense, Pearce does not apply. The likelihood of either actual vindictiveness or apprehension of vindictiveness, the object of Pearce‘s prophylactic rule, is minimal when the second sentence is imposed for an offense greater than that which was the basis of the original conviction. The complete explanation for the harsher penalty is obvious on the face of a judgment convicting the defendant of the greater crime. See United States ex rel. Williams v. McMann, 436 F.2d 103 (2d Cir.1970). Cf. United States v. Johnson, 537 F.2d 1170, 1174-75 (4th Cir.1976).
We cannot accept Whitley‘s argument that a sentence in excess of 20 years is unconstitutional because the 20-year sentence and the 50-year sentence were for the same transaction. This argument is not supported by any authority. The same transaction or the same evidence is pertinent to aspects of the bar afforded by the double jeopardy clause, but it is not significant here. After a guilty plea has been set aside, neither retrial nor an increased sentence infringes the rights protected by the double jeopardy clause. North Carolina v. Pearce, 395 U.S. 711, 719-21, 89 S.Ct. 2072, 2077-78, 23 L.Ed.2d 656 (1969). By accepting the plea to a charge of armed robbery, the district court did not impliedly acquit Whitley of the crime of kidnapping while committing an armed robbery. United States v. Williams, 534 F.2d 119, 120-22 (8th Cir.1976).
Whitley protests the prosecutor‘s comments that questioned his motive in appealing his guilty plea. Although the prosecutor‘s remarks were ill advised, there could be no apprehension of prosecutorial vindictiveness of the kind that prompted a prophylactic rule against substitution of charges in Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974). The prosecutor did not file a greater charge after Whitley successfully attacked his guilty plea. Because Whitley was tried on the original indictment, his right to due process was not infringed. See United States v. Barker, 681 F.2d 589, 592-93 (9th Cir.1982); United States v. Johnson, 537 F.2d 1170, 1175 (4th Cir.1976).
Even though Whitley‘s conduct was the subject of both his plea of guilty to a violation of subsection (d) and his conviction for violating subsection (e), the charges considered in the respective proceedings were different. The proceedings on the guilty plea to subsection (d) did not provide a forum for assessment of Whitley‘s guilt and punishment under subsection (e) which, pursuant to the plea bargain, the government withdrew. Acceptance of the plea to the subsection (d) charge precluded the judge from acquitting, convicting, or sentencing Whitley under subsection (e). Not until Whitley was convicted of the crime defined in subsection (e) could the court give consideration to the full range of penalties Congress authorized for conduct more serious than that punishable under subsection (d). See Barker, 681 F.2d at 592.
We reject Whitley‘s suggestion that the increased sentence violated the due process clause by engendering a reasonable perception of harsh treatment because he
Explaining the rationale of Pearce, the Court emphasized that “the Due Process Clause is not offended by all possibilities of increased punishment upon retrial after appeal, but only those that pose a realistic likelihood of ‘vindictiveness.‘” Blackledge v. Perry, 417 U.S. 21, 27, 94 S.Ct. 2098, 2102, 40 L.Ed.2d 628 (1974). The likelihood and the apprehension of vindictiveness are dispelled when a defendant is given an increased sentence because he has been convicted on retrial of a more serious crime than that for which he previously pled guilty. See United States ex rel. Williams v. McMann, 436 F.2d 103 (2d Cir.1970).
V
For reasons adequately stated in the panel opinion, United States v. Whitley, 734 F.2d 994, 998-99 (4th Cir.1984), we find no error in the denial of the motion to suppress.
AFFIRMED.
HARRISON L. WINTER, Chief Judge, concurring in part and dissenting in part:
While I agree that there is no merit in Whitley‘s appeal from the district court‘s denial of the motion to suppress, I remain of the view that his sentence should be vacated and his case returned to the dis-trict court for resentencing under the restriction that a sentence more severe than twenty years may be imposed only if the sentencing judge discerns and articulates a reason adequate under Pearce to justify harsher treatment. To this extent, I respectfully dissent.
There is much in the majority opinion with which I agree. I have no doubt that Pearce and the line of cases it has spawned protect a defendant against an apprehension of vindictiveness in the imposition of sentence on retrial, as well as actual vindictiveness in the imposition of that sentence. I agree also that in most circumstances the provisions of
On Whitley‘s initial guilty plea to the charge that he violated
When on retrial—his plea of guilty having been stricken—Whitley was found guilty of violating
Having stated what this case is, I will also state what it is not. This is not a case where the first district judge imposed the maximum sentence of incarceration upon a defendant‘s guilty plea to a lesser-included offense. Had the first sentencing judge, having heard all of the details of the crime, concluded that the maximum period of incarceration for that offense been justified, I would have no doubt that upon retrial and conviction of a greater-included offense, the imposition of a more severe sentence would have been unexceptionable short of evidence of actual vindictiveness. I would hold that ordinarily whenever a conviction on a lesser-included offense is set aside, followed by a conviction of a more aggravated offense, a more severe sentence may be imposed. It is only here, where the sentence of incarceration imposed on the first conviction is less than the maximum which the law permits for that offense and the less severe sentence is imposed by the sentencing judge with full knowledge of the facts which, if proved, would result in conviction of the more aggravated offense, that the Pearce rule comes into play.
For these reasons as well as those set out more fully in the majority panel opinion, United States v. Whitley, 734 F.2d 994 (4 Cir.1984), I would vacate the sentence and return Whitley to the district court for resentencing within the constraints of Pearce.
Judge MURNAGHAN, Judge SPROUSE, and Judge ERVIN authorize me to say that they join in this separate opinion.
MURNAGHAN, Circuit Judge, dissenting:
I concur in Chief Judge Winter‘s conclusion in dissent that Whitley‘s enhanced sentence offends the principles of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). In addition to the concerns expressed in his dissenting opinion, I am troubled by an aspect of Whitley‘s case which seems to have escaped notice.
In Part III of its opinion, the en banc court attempts to avoid what otherwise would be an obvious Pearce violation. It does so by overruling prior interpretations of
At the time Whitley elected to attack his twenty year sentence, extant Fourth Circuit authority provided every assurance that a retrial on the original indictment would not carry the potential for additional punishment over and beyond the twenty years imposed following a guilty plea to
In Judge Butzner‘s case, the matter is very simple. At the panel level, he felt bound by extant Fourth Circuit authority, which defined Whitley‘s crime as a “single one,” with only differing degrees of enhanced punishment possible under the several subsections of
In taking the “same offense” approach, Judge Butzner justifiably relied on prior Fourth Circuit holdings, particularly Walters v. Harris, 460 F.2d 988 (4th Cir.1972), cert. denied sub nom. Wren v. United States, 409 U.S. 1129, 93 S.Ct. 947, 35 L.Ed.2d 262 (1973) (“It was not the intent of Congress by the various sections of
Judge Winter took a different and more complicated route since he thought each subsection of
Since the earlier plea bargain of guilty to
In Whitley‘s case there have been no such aggravating circumstances. Neither Judge Butzner nor anyone else has suggested otherwise. Obviously if there were none at a later date, there were none at any earlier time. Whitley was in the best position of anyone to know that fact. Hence he should have been able safely to proceed on the assumption that both Judge Winter and Judge Butzner, though for different reasons, nevertheless would, sitting on three judge panels, certainly have agreed that Whitley could not be resentenced to more than twenty years. That,
At the en banc level, Whitley was in for a rude awakening. Although Judge Butzner was evidently not satisfied with the law he clearly recognized to be in existence, still, he steadfastly applied the single offense approach of Walters and Crawford when the question arose at the customary panel level. Only when the appeal reached the en banc level, well after the time when Whitley had to make his crucial decision, did Judge Butzner have the right to express a preference for a change in the law. The point remains, however, that, because of the change in the law, Whitley was caught in the switches. Had he known that, while the guilty plea and the twenty year sentence could be vacated because of ineffective assistance of counsel, he still upon retrial might get life or fifty years, he might very well have refrained from pursuing relief under
For those reasons, I cannot follow the lead of the en banc majority. While I agree with the conclusion that
Accordingly, I dissent.
Notes
To the prosecutor,
Of course, the trial judge need not have accepted a plea to
However, we do not need to unravel that tangled skein inasmuch as it was patent, as of the time Whitley took his decision, that proceeding with the § 2255 motion did not present a risk of an enhanced sentence over the twenty year imposition already in existence.
[A]ny sentence I give is not penalizing [Whitley] for having come back and had a trial. I agree with you that he had a constitutional right to do it, and I hold nothing against him and in no sense of the word do I plan to sentence this gentleman on the theory that he is taking advantage of the system or anything of that nature, so I just wanted the record to be completely clear on that. Any sentence I give is not for the purpose of vindictiveness or for the purpose of penalizing him for having exercised his constitutional right. That‘s done every day, and I do not hold that against him.