Case Information
*2 Before: BECKER, NYGAARD and WEIS, Circuit Judges.
(Filed July 22, l994 )
PETER ROSALSKY Dеfender Association of Philadelphia 121 North Broad Street Philadelphia, PA 19107 Attorney for Appellant DEBORAH FLEISHER Assistant District Attorney *3 DONNA G. ZUCKER Chief, Federal Litigation *4 RONALD EISENBERG Deputy District Attorney Law Division ARNOLD H. GORDON Chief Deputy District Attorney LYNNE ABRAHAM District Attorney 1421 Arch Street Philadelphia, PA 19102-1582 Attorneys for Appellees ___________________________ OPINION OF THE COURT ___________________________
BECKER, Circuit Judge.
This appeal from an order of the district court
dismissing a petition for writ of habeas corpus presents the
question whether the Double Jeopardy Clause of the Fifth
Amendment to the United States Constitution, as applied through
the Fourteenth Amendment, prohibits an enhanced sentence in a
state resentencing proceeding brought pursuant to Pеnnsylvania's
Drug Trafficking Mandatory Minimum Sentencing Statute, 18
Pa.Cons.Stat.Ann. § 7508 (1990), after the initial sentence was
reversed on appeal. Resolution of this issue requires us to
decide which of two arguably controlling Supreme Court decisions
determines the outcome. In Bullington v. Missouri,
I.
Petitioner, Joseph Wilmer, was convicted following a bench trial in the Court of Common Pleas of Philadelphia County of possessing crack cocaine with intent to deliver. Wilmer had been found with 61 clear plastic vials with оrange caps containing an off-white substance. Two of the vials were analyzed by the Commonwealth's chemist and found to contain cocaine, 37 and 43 milligrams respectively. [0] The Commonwealth timely notified Wilmer of its intent to proceed under the mandatory sentencing provisions of 18 Pa.Cons.Stat.Ann. § 7508, Pennsylvania's Drug Trafficking Mandatory Minimum Sentencing Statute. [0]
*6 At a sentencing hearing on April 5, 1990, the issue was whether petitioner was subject to § 7508(a)(3)(i), which provided for a mandatory minimum sentence of one year and a $5,000 fine (3) A person who is convicted of violating section 13(a)(14) or (30) of The Contrоlled Substance, Drug, Device and Cosmetic Act where the controlled substance is coca leaves or is any salt, compound, derivative or preparation of coca leaves . . . shall, upon conviction, be sentenced to a mandatory minimum term of imprisonment and a fine as set forth in this subsection:
(i) upon the first conviction when the amount of the substance involved is at least 2.0 grams and less than ten grams; one year in prison and a fine of $5,000 or such larger amount as is sufficient to exhaust the assets utilized in and the proceeds from the illegal activity . . . ;
* * *
(b) Proof of sentеncing. -- Provisions of this section shall not be an element of the crime. Notice of the applicability of this section to the defendant shall not be required prior to conviction, but reasonable notice of the Commonwealth's intention to proceed under this section shall be provided after conviction and before sentencing. The applicability of this section shall be determined at sentencing. The Court shall consider evidence presented at trial, shall afford the Commonwealth and the defendant an opportunity to present necessary additional evidence and shall determine, by a preponderance of the evidence, if this section is applicable.
* * *
(d) Appellate review. -- If a sentencing court refuses to apply this section where applicable, the Commonwealth shall have the right to appellate review of the action of the sentencing court. The appellate court shall vacate the sentence and remand the case to the sentencing court for imposition of a sentence in accordance with this section if it finds that the sentence was imposed in violation of this section.
when "the amount of the substance involved is at least 2.0 grams and less than ten grams." [0] The evidence presented at the sentencing hearing (established through stipulation) showed that the aggregate weight of the substance when the contents of the sixty-one vials were mixed was 2.6 grams. The state did not show what portion of the 2.6 grams was actually cocaine as opposed to a non-cocaine substance used to dilute the mixture. [0]
The trial court held that the Commonwealth had not proved by a preponderance of the evidence that the amount of cocaine involved was 2.0 grams. Only 2 of 61 vials had been analyzed, and the amount of cocaine discovered in these two vials, in the court's view, did not justify an extrapolation to 2.0 grams of cocaine in the 61 vials. The court therefore refused to apply § 7508(a)(3)(i) and instead sentenced Wilmer to 9 to 18 months confinement to be followed by one year of probation. The Commonwealth appealed the sentence pursuant to §7508(d), which authorizes an appeal by the Commonwealth when the sentencing court fails to apply the mandatory minimum sentence required by that statute. The Pennsylvania Superior Court reversed and remanded the case for imposition of the more severe *8 sentence, holding that the sampling of only 2 of 61 vials was adequate to support the extrapolation. Wilmer's request for allocatur was denied by the Pennsylvania Supreme Court.
On December 2, 1992, Wilmer filed a petition for a writ of habeas corpus in the District Court for the Eastern District of Pennsylvania. The sole claim raised was the alleged impingement of the constitutional right not to be placed twice in jeopardy by reason of being subjeсted to a second sentence enhancement proceeding under 18 Pa.Cons.Stat.Ann. § 7508. Respondents [0] answered the petition, addressing its merits. [0] The district court dismissed the petition, and this appeal followed.
On June 10, 1993, a motions panel of this court granted
Wilmer's request for a certificate of probable cause to appeal
and appointed counsel. After briefs were filed, the Supreme
Court granted certiorari in Caspari v. Bohlen ,
II.
*9
We must initially determine whether the Supreme Court's
decision in Teague v. Lane,
In this case, respondents failed to raise a Teague argument in the district court or in their brief on appeal. The issue was not raised until we, sua sponte, requested supplemental briefs addressing the nonretroactivity principle. Not surprisingly, the respondents now argue that Teague forecloses any habeas relief. Relying primarily on the Supreme Court's recent opinion in Caspari, they contend that Wilmer's double jeopardy argument, if accepted, would constitute a new rule which cannot be applied retroactively in a collateral proceeding. [0] *10 The respondents' argument has obvious force. In Caspari, the habeas petitioner claimed that the Double Jeopardy Clause prohibited the state from subjecting him to successive noncapital sentence enhancement proceedings. The State argued, as it had in the lower courts and in its brief on the merits, that the nonretroactivity principle articulated in Teague barred the relief sought by the petitioner. Agreeing with the state, the Supreme Court declined to address the merits of the double jeopardy claim. Instead, the Court held that granting the petitioner's request for relief "required the announcement and application of a new rule of constitutional law." Id. at 957. The Court found that "neither of the two narrow exceptions to the nonretroactivity principle applie[d] to the case," since the "new rule" was neither the type that placed "certain kinds of primary, private individual conduct beyond the power of the criminal law- mаking authority to proscribe" nor a "watershed rule[] of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding." Id. at 956 (quotations and citations omitted).
Recognizing the similarity between Caspari and the
instant appeal, we nonetheless find the cases distinguishable. In
Caspari, the State properly raised the Teague issue in the lower
courts. Consequently, the Court held that it "must apply Teague
before considering the merits of the claim." Id. at 953
(citation omitted). The respondents here did not assert the
Teague rule until we identified the issue and requested
supplemental briefing. However, the appropriate time for arguing
*11
that Teague barred consideration of petitioner's double jeopardy
claim was in the answer to the habeas petition and not in a
supplemental brief requested by the court on appeal. The
respondents should have been aware of the Teague defense, since
Teague was decided prior to Wilmer's filing of his habeas
petition. See Hanrahan v. Greer,
We hold that respondents' failure to raise the issue in
the district court constitutes a waiver of any Teague defense.
Schiro,
decline to do so in this case. In this respect we follow the
lead of the Court of Appeals for the Sevеnth Circuit in Hanrahan,
which declined to address the Teague question sua sponte, noting
that the court need not go into a Teague analysis where the state
failed to preserve an objection in the district court to the
retroactive application of a new rule.
III.
"It is well established that the Double Jeopardy Clause
forbids the retrial of a defendant who has been acquitted of the
crime charged." Bullington,
The Supreme Court traditionally has refused to extend
the Double Jeopardy Clause to sentencing. Caspari, 114 S.Ct. at
955. "The imposition of a particular sentence usually is not
regarded as an `acquittal' of any more severe sentence that could
have been imposed." Bullington,
*13 In DiFrancesco, a case involving a statute similar to the one at issue in this appeal, the defendant was convicted in federal court of violating the Organized Crime Control Act of 1970, 18 U.S.C. § 3575, a statute predating the United States Sentencing Guidelines. Section 3575 provided for an increased sentence upon proof at a sentencing hearing that the convicted defendant was a "dangerous special offender." After the defendant was found guilty of the racketeering counts, a dangerous special offender hearing was held. The district court made findings of fact and ruled that the defendant was a dangerous special offender within the meaning of § 3575, but the court's sentence resulted only in one additional year of imprisonment beyond that which the defendant had received on the racketeering counts.
Section 3576 of Title 18 provided for an appeal by the government to correct a sentence imposed after § 3575 proceedings. The government appealed, claiming that the district court had abused its discretion in imposing such a lenient sentence. The court of appeals rejected the government's position, concluding that the risk of substitution of a greater sentence upon an appeal by the government under § 3576 violated the Double Jeopardy Clause. The Supreme Court reversed, holding that the increase of a sentence on review under 18 U.S.C. § 3576 did not violate the Double Jeopardy Clause. Specifically, the Court rejected the contention that the impоsition of a sentence under that statute constituted an acquittal of a more serious sentence that could have been imposed, because a defendant had no *14 expectation of finality until the statutory appeal process was completed.
In contrast, in Bullington, a capital case, the Court
carved out an exception to the general rule that the Double
Jeopardy Clause does not apply in the sentencing context.
[0]
The
Court held that the state could not seek the death penalty at a
second capital sentеncing hearing without violating the Double
Jeopardy Clause where the defendant's first jury had declined to
impose that penalty. See also Arizona v. Rumsey,
More importantly for this case, the Bullington court distinguished DiFrancesco as follows:
In only one prior case, United States v.
DiFrancesco, has this Court considered a separate or bifurcated sentencing procedure at which it was necessary for the prоsecution to prove additional facts. The federal statute under consideration there, the "dangerous special offender" provision of the Organized Crime Control Act of 1970, 18 U.S.C. §§ 3575 and 3576, requires a separate presentence hearing. The Government must prove the additional fact that the defendant is a "dangerous special offender," as defined in the statute, in order for the court to impose an enhanced sentence. But there are highly pertinent differences between the Missouri procedures controlling the present case and those found constitutional in DiFrancesco . . . .
The Court went on to discuss the important procedural differences between Missouri's death penalty statute and the federal dangerous special offender statute. They included that the federal judge has a number of sentencing choices under 18 U.S.C. § 3575, whereas a Missouri jury must choose between life and death, and that the government in a § 3575 proceeding need only prove that the defendant is a dangerous offender by a preponderance of the evidence, whereas the state in a capital sentencing proceeding must prove the existence of an aggravating *16 circumstance beyond a reasonable doubt. Id. at 440-41, 101 S.Ct. at 1859. The Court also noted that the statute at issue in DiFrancesco expressly provided for appellate review of a sentence on the record of the sentencing court. Id. In essence, the Court saw the sentencing determination in Bullington as constituting an acquittal for lack of evidence. By necessary implication, the sentencing determination in DiFrancesco was not an "acquittal" because, given the more lax procedures used at the sentencing hearing, it was not a trial-like proceeding.
IV.
Against this background, we turn to Wilmer's double jeopardy claim as it relates to a resentencing proceeding under 18 Pa.Cons.Stat.Ann. § 7508. Wilmer argues that the constitutional protection against double jeopardy bars resentencing in his case. Specifically, he claims that the state trial court "acquitted" him of the § 7508 mandatory sentence in a sentencing proceeding that was more like a trial on the issue of guilt than a typical discretionary sentencing hearing. Wilmer grounds his argument on the Supreme Court's opinions in Bullington and Rumsey.
After reviewing the relevant case law and the state
statute at issue in this appeal, we reject petitioner's argument.
We are satisfied that the Double Jeopardy Clause does not
prohibit an enhanced sentence in a state resentencing proceeding
brought pursuant to 18 Pa.Cons.Stat.Ann. § 7508. First, we draw
instruction from the Supreme Court's decision in DiFrancesco. The
*17
statute at issue there specifically provided that the sentence
was subject to appeal. The Court found that under such
circumstances the defendant "is charged with knowledge of the
statute and its aрpeal provisions, and has no expectation of
finality in his sentence until the appeal is concluded or the
time to appeal has expired." Id. at 136,
In DiFrancesco , the Court also noted the human
considerations that bar a prosecution after an acquittal. Id. at
136,
Like DiFrancesco, the resentencing proceeding under
§7508 will not subject the petitioner to a second trial. As we
read the opinion of the Pennsylvania Superior Court, on remand
the trial court has no choice but to impose the appropriate
*18
mandatory minimum sentence set out in § 7508; no further trial-
like proceedings appear necessary. Indeed, from our reading of
§7508(d), it does not appear that further proceedings would ever
be required on resentencing where a trial court refused to imрose
the mandatory minimum sentence. See, e.g., Commonwealth v.
Jones,
The prosecution's burden of proof under § 7508 also
suggests that the sentencing proceeding does not resemble a
trial. Pursuant to § 7508(b), the trial court invokes the
mandatory sentencing statute if it determines by a preponderance
of the evidence that the section applies. This standard, which
is the same standard involved in DiFrancesco, "stands in contrast
to the reasonable-doubt standard" at issue in Bullington, 451
U.S. at 441,
In light of the caselaw, the standard of proof required
at sentencing proceedings is certainly a factor in determining
*19
whether the imposition of one sentence constitutes an acquittal
of another. More precisely, the use at a sentencing hearing of a
preponderance of the evidence standard of proof rather than the
traditional beyond a reasonable dоubt standard is significant.
See Bullington,
We also draw instruction from the Supreme Court's
decision in Caspari where it stated, albeit in dictum, that, had
it decided the broader question of whether the Double Jeopardy
Clause bars an enhanced sentence in noncapital cases, it would
have limited Bullington and Rumsey to the capital sentencing
context. The Court stated that "[b]oth Bullington and Rumsey
were capital cases, and our reasoning in those cases was based
largely on the unique circumstances of a capital sentencing
proceeding." Caspari,
We have previously considered a double jeopardy
challenge to a statutory scheme designed, as is Pennsylvania's
here, to reduce the discretion of the sentencer by providing for
a government appeal of an improper sentence. In United States v.
McMillen,
Relying on DiFrancesco , we explained that the
prohibition against double jeopardy is not implicated where a statute specifically provides for the government to obtain appellate review. We noted that Congress had provided the government with the means to appeal an incorrect application of the federal sentencing guidelines in 18 U.S.C. § 3742(b). Id. at 776-777 & n.6. Thus, the defendant was charged with the knowledge that the government could appeal and had no expectation of finality until the appeal was concluded or the time for appeal had expired. We see no real difference between the federal government's right to have an enhanced sentence meted out at a subsequent sentencing proceeding under the Guidelines and the circumstances presented by this appeal.
V.
In sum, we do not think that double jeopardy protection
attaches to sentencing proceedings under § 7508. The statute
expressly grants the state the right to appeal a sentencing
determination; thus, the petitioner did not have a reasonable
expectation of finality in the original sentence. Moreover, the
sentencing proceedings are not, within the Bullington calculus,
so trial-like as to implicate the Double Jeopardy Clause. Here,
the Commonwealth made only the showing it had to make under thе
preponderance of the evidence standard. The petitioner offered
nothing in rebuttal. In fact, at the actual hearing, all that
happened in terms of presentation of evidence was that the
parties stipulated to a single fact -- the total weight of the
substance. We fail to see how this resembles a trial. See DiFrancesco,
The order of the district court denying Wilmer's petition for a writ of habeas corpus will be affirmed.
Notes
[0] The specific amount of cocaine found in the two tested vials was brought out at the trial rather than at the sentencing hearing.
[0] Before the 1990 amendments, Section 7508 provided in relevant part, as follows: (a) General rule. -- Notwithstanding any other provisions of this or any other act to the contrary, the following provisions shall apply: * * *
[0] On December 19, 1990, the Pennsylvania Legislature amended this section to make the mandatory minimum depend not just on the amount of substance involved but rather the aggregate weight of the compound or mixture. The amended provision now reads: "when the aggregate weight of the compound or mixture containing the substance involved is at least 2.0 grams and less than ten grams . . . ." 18 Pa.Cons.Stat.Ann. § 7508 (Supp. 1993) (emphasis added). The amendment has no applicability to this appeal.
[0] The total amount of cocaine in the two analyzed vials had been shown only to be eighty milligrams.
[0] Respondents are as follows: (1) Nathaniel Johnson, Director, Pretrial Services Division of Philadelphia Court of Common Pleas; (2) the District Attorney for Philadelphia County; and (3) the Attorney General of the State of Pennsylvania.
[0] The respondents properly conceded that petitioner had exhausted his state remedies under 28 U.S.C. § 2254(b).
[0] Wilmer has represented that the state trial court has continued the resentencing pending the outcome of this appeal.
[0] A state conviction and sentence become final for the purpose of
retroactivity analysis when the availability of direct appeal to
the state courts has been exhausted and the time for filing a
timely petition for a writ of certiorari has elapsed. Caspari,
[0] The Double Jeopardy Clause is made applicable to the states
through the Fourteenth Amendment. Benton v. Maryland, 395 U.S.
784,
[0] At issue in Bullington was the Missouri death penalty statute,
which provided for a separate sentencing proceeding at which the
prosecution had to prove the existence of an aggravating
circumstance beyond a reasonable doubt. At the guilt phase of
the defendant's trial, the jury returned a verdict of guilty of
capital murder. At the sentencing hearing, the jury returned a
verdict fixing the defendant's punishment at life in prison
without the possibility of parole. The defendant appealed his
conviction and won a new trial on a jury fair cross-section of
the community claim. The state then served notice that it would
again seek the death penalty on retrial. A defense motion to
strike the notice, grounded in the Double Jeopardy Clause, was
granted. Following an appeal to the Missouri Supreme Court, the
United States Supreme Court granted certiorari "in order to
consider the important issues raised by petitioner regarding the
administration of the death penalty (footnote omitted)."
Bullington,
[0] As we read the record, after the two vials were tested, the contents of all 61 vials were dumped together and weighed. Thus, testing of additional vials would no longer be possible.
[0] We use the phrase "Bullington calculus" advisedly. We are acutely aware that the sentencing proceedings with which federal judges regularly deal these days are driven by facts that are often developed in extensive sentencing hearings. While these may sometimes feel trial-like, they differ markedly from actual trials, see generally Edward R. Becker, Insuring Reliable Fact Finding in Guidelines Sentencing: Must the Guarantees of the Confrontation and Due Process Clauses Be Applied?, 22 Cap.U.L.Rev. 1 (1993), and, at all events, are not trial-like within the "Bullington calculus."