§100 Pre-Guidelines Sentencing, Generally
Supreme Court holds that sentencing petitioner under guidelines that were increased after he committed his crime violated the ex post facto clause. (100) When the petitioner committed his crime, Florida’s determinate sentencing guidelines called for a presumptive sentence of 3-1/2 to 4-1/2 years. By the time petitioner was sentenced, the guidelines had been revised to from 5-1/2 to 7 years and petitioner was sentenced to 7 years. In a unanimous opinion written by Justice O’Connor, the Supreme Court held that the trial court’s reliance on the new guidelines violated the ex post facto clause. The new guidelines were not a mere “procedural” change, and it did not matter that even under the old guidelines, the court could have imposed a 7 year sentence upon giving “clear and convincing” reasons for doing so. Miller v. Florida, 482 U.S. 423, 107 S.Ct. 2446 (1987).
Supreme Court effectively abolishes the concurrent sentence doctrine. (100) The concurrent sentence doctrine was abolished by the Ninth Circuit in U.S. v. DeBright, 710 F.2d 1404 (9th Cir. 1983) en banc. In Circuits where the doctrine still exists, however, it permits an appellate court to decline to reach issues where reversal on one count would not affect the defendant’s actual time in custody because he or she is serving concurrent time on other unchallenged counts. The Supreme Court granted certiorari in the present case to review the concurrent sentence doctrine. Instead, in a unanimous per curiam order, it reverses the Fifth Circuit’s reliance on the doctrine, on the ground that since mandatory $50 penalty assessments were imposed on each count consecutively pursuant to 18 U.S.C. § 3013, the sentences were not truly concurrent. Since the penalty assessment provisions of § 3013 are mandatory, this means that § 3013 has effectively abolished the concurrent sentence doctrine. Ray v. U.S., 481 U.S. 736, 107 S.Ct. 2093 (1987).
Supreme Court holds that despite mandatory two year sentence for person who commits a felony while on bail, court may still suspend sentence. (100) 18 U.S.C. § 3147 provides that anyone who commits a felony while on release on bail must be sentenced to at least two years’ imprisonment in addition to the sentence imposed for the underlying felony. In a per curiam opinion, the Supreme Court held that neither the language nor the legislative history of § 3147 provides any basis for concluding that it was intended to affect the power of trial judges to suspend sentence under 18 U.S.C. § 3651 and impose probation instead. Rodriguez v. U.S., 480 U.S. 522, 107 S.Ct. 1391 (1987).
Supreme Court upholds greater sentence on retrial as not vindictive. (100) The Supreme Court held that the increase in sentence from 20 years to 50 years after retrial did not violate North Carolina v. Pearce, 395 U.S. 711 (1969);. No presumption of vindictiveness applied because the judge had not imposed the original sentence, and gave a logical, non-vindictive reason on the record for the longer sentence. Even if the Pearce presumption applied, it was overcome by the trial judge’s findings which constituted “objective information justifying the increased sentence.” Texas v. McCullouch, 475 U.S. 134, 106 S.Ct. 796 (1986).
Supreme Court finds no double jeopardy violation in resentencing on counts for which sentence had originally been suspended. (100) After reversing the convictions on which defendant had been sentenced, the Pennsylvania Supreme court refused to remand the case for resentencing on additional counts for which the sentence had been suspended, on the ground that this would constitute double jeopardy. The U.S. Supreme Court held that the double jeopardy clause does not bar resentencing on counts which were affirmed on appeal, when the sentences on other counts have been vacated. Pennsylvania v. Goldhammer, 474 U.S. 28, 106 S.Ct. 353 (1985).
Supreme Court upholds increased sentence on retrial. (100) The imposition of an increased sentence on a criminal defendant who successfully appealed his original conviction may be justified by identifying, on the record, relevant conduct or events that occurred subsequent to the original sentencing proceeding. Consideration of a conviction that was obtained in the time between the original sentencing and sentencing after retrial, but that was based on criminal conduct that occurred prior to the original sentencing proceeding, is sufficient to rebut the presumption of vindictiveness that arises when a judge imposes a more severe sentence after retrial following a successful appeal. Wasman v. U.S., 468 U.S. 559, 104 S.Ct. 3217 (1984).
1st Circuit upholds pre-guidelines sentence because it was within statutory limits. (100) The 1st Circuit summarily rejected defendant’s complaints about his pre-guidelines sentence because it was within statutory limits. “We have no right to review except if the court failed to ‘individualize.’ . . . It did not fail.” U.S. v. Pryor, 960 F.2d 1 (1st Cir. 1992).
1st Circuit upholds pre-guidelines sentence despite co-conspirators’ lighter sentences. (100) Defendant complained that his pre-guidelines sentence of two concurrent terms of 10 years each on his two drug convictions was disproportionate compared to the sentences of his two other co-conspirators who pled guilty. They each received sentences of four years or less. The 1st Circuit upheld the sentences. The sentence was within the statutory limits for his crimes. Although defendant did go to trial while the other defendants pled guilty, there was no evidence that the harsher sentence was in retaliation for not pleading guilty. Defendant was involved in a major marijuana distribution conspiracy for ten years and he admitted at trial that he distributed thousands of pounds of marijuana. Although his sentence was greater than that of some other co-conspirators, it was not so out of line with defendant’s role in the conspiracy as to constitute cruel and unusual punishment. U.S. v. Richard, 943 F.2d 115 (1st Cir. 1991).
2nd Circuit applies pre-guidelines law even though probation violation occurred after effective date of guidelines. (100) Defendant committed a pre-guidelines offense and was placed on probation. In 1994 he violated his probation. The Second Circuit held that the district court properly used pre-guidelines law to determine defendant’s sentence for violating the probation, even though the probation violation occurred after the effective date of the guidelines. Under 18 U.S.C. § 3565, a court may revoke probation and impose any other sentence that was available at the time of the initial sentencing. Congress did not intend a violation of probation to be a separate offense. A sentence on revocation of probation is imposed for the original conviction. A probation violation is distinguishable from a violation of the terms of supervised release. A violation of supervised release is a separate offense from the crime that led to the initial imprisonment. U.S. v. Vogel, 54 F.3d 49 (2d Cir. 1995)
2nd Circuit upholds increase in pre-guidelines sentence to make up for incorrect enhancement on guidelines count. (100) Defendant’s original sentence was based on both guidelines and pre-guidelines counts. On his first appeal, the 2nd Circuit reversed a guidelines enhancement which had resulted in a 10-month increase in defendant’s sentence, and remanded for resentencing. On remand, the district court added 10 months to defendant’s non-guidelines sentence and thus resentenced him to precisely the same total prison term originally imposed. The 2nd Circuit affirmed, since the prior opinion explicitly recognized the district court’s authority to so increase the non-guidelines sentence. The remand was intended to resolve the factual question of whether the district court would have given a larger sentence on the non-guidelines counts if it had realized the enhancement was improper. U.S. v. Hornick, 963 F.2d 546 (2nd Cir. 1992).
2nd Circuit rules lengthy pre-guidelines sentence was not based on bias against defendant. (100) In this pre-guidelines case, the 2nd Circuit rejected defendant’s claim that the sentencing judge imposed a lengthy sentence out of personal spite and in retaliation for defendant’s assertion of certain statutory rights. The judge reasonably indulged defendant’s assertion of rights under the tax code and the Federal Rules of Evidence. While the record was replete with evidence that defendant was contentious, the judge’s response to defendant’s behavior never rose to a level where his impartiality could be questioned. The judge could not be faulted for “frankly chastising” the defendant for his conduct. Defendant was shown at trial to be a fraud and a liar. The 2nd Circuit said that the sentence, and the court’s admonitions in imposing it, serve the important function of deterring like conduct. U.S. v. Droge, 961 F.2d 1030 (2nd Cir. 1992). .
3rd Circuit says court improperly considered defendant’s decision to go to trial rather than accept plea offer. (100) In this pre‑guidelines case, defendant originally received a 15‑year sentence. The judge later granted defendant’s § 2255 motion and vacated the conviction based on ineffective assistance of counsel. After a second trial before a different judge, defendant was sentenced to 20 years. The Third Circuit rejected defendant’s claim that the sentence was vindictive, despite the judge’s characterization of defendant’s successful § 2255 petition as “frivolous.” This statement was not enough to establish actual vindictiveness, particularly in light of the numerous other reasons stated by the judge for imposing a 20‑year sentence. However, the judge erred when he considered as a sentencing factor defendant’s decision to exercise his constitutional right to a trial by jury rather than accepting the government’s plea offer. The judge properly relied on his finding that defendant committed perjury at the § 2255 hearing. Although the judge was not present at the hearing, a court may find all the elements of perjury when numerous witnesses contradict the defendant regarding many facts on which he could not have been mistaken. U.S. v. Moskovits, 86 F.3d 1303 (3d Cir. 1996).
4th Circuit rules that sentencing judge in pre-guidelines case may take a defendant’s perjury into account. (100) In a pre-guidelines case, the 4th Circuit rejected defendant’s contention that a sentencing court may not take into account a defendant’s perjury unless the defendant is provided with both advance notice of the judge’s intention to consider such conduct and an opportunity to rebut the judge’s determination that perjury was committed. Moreover, it is permissible for a sentencing judge to infer from the testimony and demeanor of the witnesses at trial that the defendant coerced or allowed a defense witness to commit perjury. U.S. v. Pavlico, 961 F.2d 440 (4th Cir. 1992).
5th Circuit remands pre-guidelines sentence to new judge due to appearance of impropriety. (100) Defendant was convicted of wire fraud and money laundering in a pre-guidelines case. A law partner and close friend of the judge’s husband had a bitter relationship with defendant. The Fifth Circuit held that the judge abused her discretion in failing to recuse herself. Given the excessively harsh sentence imposed (300 months for a first-time offender convicted of non-violent white collar crimes), the judge’s essentially unbridled sentencing discretion, and the appearance of impropriety, the court vacated the sentence and remanded to a judge outside the district for resentencing. U.S. v. Jordan, 49 F.3d 152 (5th Cir. 1995).
5th Circuit upholds maximum statutory sentence for receiving child pornography. (100) In a pre-guidelines case, defendant was convicted of receiving child pornography through the mail. He complained that his 10-year sentence and $65,000 fine was unfair, biased and unconstitutional, and that the judge unfairly sentenced him as a child molester. The 5th Circuit upheld the maximum statutory sentence. The trial court stated its reasons for assessing the maximum sentence, noting the evidence of sexual and physical abuse of children and pointing out that the guidelines would have provided for an upward adjustment for such relevant conduct. The court relied on information properly admitted at trial and a psychiatric report ordered by the court as part of defendant’s presentence investigation. U.S. v. Byrd, 31 F.3d 1329 (5th Cir. 1994).
5th Circuit upholds reasonableness of pre-guidelines sentence. (100) For the pre-guidelines portion of his offense, defendant was convicted of three counts of money laundering, and received three concurrent 20-year terms. The 5th Circuit rejected defendant’s claim that the sentences were plainly unreasonable. The sentences were ordered to run concurrently, rather than consecutively, and thus the district court gave defendant only one-third of the time he could have received. Moreover, the district court found that defendant’s crimes were particularly egregious, injuring countless persons by depriving them of their rightful compensation for personal injury and property loss. U.S. v. Green, 964 F.2d 365 (5th Cir. 1992).
6th Circuit says court was permitted on remand to reconsider loss attributable to defendant. (100) Defendant pled guilty to wire fraud. The district court originally determined that both the actual and intended loss from the offense of conviction was zero. However, after the case was remanded, the court stated that it had made a mistake, and the intended loss was actually $1.7 million. The 6th Circuit upheld the district court’s authority to reconsider the loss issue. The appellate court did not expressly or impliedly decide the loss issue or even affirm the court’s finding that no loss resulted from the offense of conviction. The appellate court found only that the district court incorrectly considered the amount of loss from conduct outside the offense of conviction. The district court also did not violate the mandate rule. The appellate court’s mandate did not prohibit the district court from reconsidering the loss issue and reversing its earlier decision. U.S. v. Moored, 38 F.3d 1419 (6th Cir. 1994).
7th Circuit upholds court’s authority to restructure multi-count sentence. (100) In a pre-guidelines case, the district court originally sentenced defendant to 12 years in prison, five years of probation, and $3.5 million in restitution. After he had served his 12-year prison term, defendant filed a Rule 35(a) motion alleging that the 1986 sentence was improper because 18 U.S.C. § 3651 did not permit a court to impose both imprisonment exceeding six months and probation for any one count. The district court agreed. On 13 of the 14 counts, the court vacated the probation and the restitution, but left in place the 12-year prison term. On the last count, the court vacated the prison term but left in place the five years of probation and $3.5 million in restitution. Thus, the restructured sentence resulted in the same overall sentence as originally imposed. The Seventh Circuit affirmed. The fact that defendant had already served his 12-year prison term did not deprive the court of authority to restructure his sentence. When a sentence is illegal simply because of an error in the manner in which the district court structured the original sentencing package, nothing in Rule 35(a) “prevents a court from rebuilding the edifice to carry out the plan, so long as the reconstruction eliminates the illegal feature of the first package.” U.S. v. Martenson, 178 F.3d 457 (7th Cir. 1999).
7th Circuit finds that court reconsidered even though sentence was unchanged. (100) On defendants’ first appeal of their pre-guidelines sentence, the 7th Circuit found that the district court erroneously considered several uncharged fraudulent loans. It ordered the district court to reduce the restitution and “consider anew” defendants’ 10-year terms of imprisonment. On remand, the court reduced the restitution but reimposed the same 10-year sentences. The 7th Circuit affirmed, concluding that the court complied with the mandate to “consider anew” the terms of imprisonment. The judge stated that the amount of loss caused by defendants’ actions was not crucial to his decision to impose 10-year prison terms. The judge determined that for deterrence purposes, defendants should receive the same amount of jail time as they originally received, regardless of the amount of loss. U.S. v. Crabtree, 37 F.3d 318 (7th Cir. 1994).
7th Circuit upholds harsher pre-guidelines sentence for illegal profits from husband. (100) Defendant’s husband was the organizer of a scheme involving staged automobile accidents and other incidents to collect on fraudulent insurance claims. Defendant argued that her pre-guidelines sentence of six months incarceration and six months work release was excessive, particularly when compared with the sentences of her co-defendants. The 7th Circuit found no abuse of discretion, since her sentence was well short of the maximum term of 10 years. Although other defendants received more lenient sentences, disparity among co-defendants is not sufficient to demonstrate abuse of discretion. If defendant’s activities were not enough to distinguish her culpability from other participants, the profits she enjoyed together with her husband were. U.S. v. Colello, 16 F.3d 194 (7th Cir. 1994).
7th Circuit holds that defendant waived challenge to severity of pre-guidelines sentence. (100) Defendant raised several challenges to his pre-guidelines sentence on appeal. The 7th Circuit held that by failing to object to his sentence on the grounds he now raised, defendant waived his challenge to the severity of his sentence. Moreover, the claims were unfounded under an abuse of discretion standard. The record contained ample reasons for disparity among the co-defendants’ sentences. Defendant’s presentence report, which he did not challenge, established that defendant was the most culpable defendant, and that his relatively greater sentence was warranted. The district court was not required to give a reason for imposing consecutive sentences, and there was no support for defendant’s claim that they were improper. U.S. v. Simpson, 7 F.3d 813 (8th Cir. 1993).
7th Circuit affirms consideration of reversed murder conviction in pre-guidelines case. (100) Prior to the guidelines, a sentence could be reversed when it was based on false or unreliable information that was demonstrably made the basis for the sentence. Defendant contended that the district court violated this standard by relying on his prior murder conviction, which was reversed on appeal. Defendant was acquitted on retrial. The 7th Circuit affirmed, pointing out that the district court’s remarks had noted that defendant’s conviction was reversed and that he was acquitted on retrial. The district court had merely noted defendant’s murder conviction as part of its general recounting of defendant’s lengthy criminal record. U.S. v. Eliason, 3 F.3d 1149 (7th Cir. 1993).
7th Circuit finds no abuse in resentencing pre-guidelines defendant to same prison term. (100) In this pre-guidelines case, several of defendant’s convictions were overturned and the case was remanded. At resentencing. defendant received the same eight-year sentence. In his second appeal, the 7th Circuit rejected the claim that the judge punished him for exercising his constitutional right to maintain his innocence and failed to account for his poor health. The court found that defendant’s health problems had been adequately addressed in prison. Although it was possible that if defendant had been remorseful, he would have received a reduced sentence, this did not mean that he was unconstitutionally punished for maintaining his innocence. U.S. v. McClain, 2 F.3d 205 (7th Cir. 1993).
7th Circuit remands for resentencing on all counts where sentence for one count was improper under pre-guidelines law. (100) Defendant was convicted of 19 different fraud related counts, including one count of conspiracy to commit mail fraud. He was sentenced under pre-guidelines law on all counts to 27 years’ imprisonment. The 7th Circuit agreed with defendant that he should have been sentenced under the guidelines for his conspiracy conviction, since the conspiracy “straddled” the guidelines’ effective date. It found that resentencing was necessary for all counts, not just the conspiracy count, because the district court had an overall sentencing plan in mind when it imposed its sentence on each count. In order to allow the district court to reconsider its plan as a whole in sentencing defendant, resentencing on all counts was necessary. U.S. v. Lowry, 971 F.2d 55 (7th Cir. 1992).
8th Circuit upholds consideration of guidelines in fashioning pre-guidelines sentence. (100) In a pre-guidelines case, defendant argued that the district court abused its discretion by using a “guidelines analysis,” resulting in a sentence similar to one which would have been imposed under the guidelines. The 8th Circuit found no abuse of discretion in the district court’s consideration of the guidelines, since the sentence imposed was well within the statutory limits. It is not improper for a district court to be guided in part by the guidelines in exercising its discretion in imposing a pre-guidelines sentence. U.S. v. Dunlop, 960 F.2d 55 (8th Cir. 1992).
8th Circuit rejects claim that court improperly applied guidelines to pre-guidelines case. (100) In sentencing defendant, the judge noted that although the guidelines did not apply to defendant’s case, many of the same factors were relevant. The judge also observed that there should be a “parity” between sentences imposed under “the two systems” of sentencing. The 8th Circuit rejected defendant’s argument that the district court abused its discretion by seeking parity with the guidelines and imposing what was in effect a guidelines sentence. The district court had noted that under the pre-guidelines sentence imposed, defendant would be eligible for parole after serving only one-third of his sentence. The district court also expressly considered a non-guidelines factor (defendant’s rehabilitation efforts during the two years between arrest and conviction) in imposing sentence. Although the district court may have been influenced by the guidelines, it was not improper for the court to be guided, in part, by the guidelines in exercising its discretion in imposing a pre-guidelines sentence. U.S. v. Brenneman, 918 F.2d 745 (8th Cir. 1990).
9th Circuit en banc holds that former Rule 35 and audita querela did not authorize resentencing. (100) Defendant was sentenced in 1982 under the now-repealed Federal Youth Corrections Act (FYCA). The FYCA required the court to determine whether defendant, who was then 24 years old, would benefit from being sentenced as a juvenile. The court found that he would not benefit and sentenced him as an adult. At the same time, the district court issued a Judicial Recommendation Against Deportation (JRAD) under repealed 8 U.S.C. § 1251(b), an order that could bar the deportation of some convicted defendants. Subsequently, Congress added additional grounds for deportation that were not covered by the JRAD and required defendant’s deportation. The district court granted defendant’s motion under former Federal Rule of Criminal Procedure 35, which allowed the correction of an illegal sentence “at any time,” and resentenced defendant under the FYCA. The court also granted the same relief in a writ of audita querela. The en banc Ninth Circuit held that the district court’s mistake of fact that the JRAD would forever bar defendant’s deportation did not render his sentence illegal under Rule 35 or provide a basis for a writ of audita querela. U.S. v. Hovsepian, 359 F.3d 1144 (9th Cir. 2004).
9th Circuit holds that neither former Rule 35 nor audita querela authorized resentencing. (100) Defendant was sentenced in 1982 under the now-repealed Federal Youth Corrections Act (FYCA). That Act required the court to determine whether defendant, who was then 24 years old, would benefit from being sentenced as a juvenile. The court did not make that finding and sentenced defendant as an adult. At the same time, the court issued a Judicial Recommendation Against Deportation (under repealed 8 U.S.C. § 1251(b) (2)), which barred defendant’s deportation. Subsequently, Congress added additional grounds for deportation that were not covered by the JRAD and that required defendant’s deportation. Defendant filed a motion under former Federal Rule of Criminal Procedure 35(a), which allowed the correction of an illegal sentence “at any time.” He argued that the district court could resentence him as a juvenile under the FYCA because when the court had sentenced him as an adult, it had believed that its JRAD would bar his deportation. Defendant sought the same relief in a motion for a writ of audita querela. The district court granted relief under both Rule 35(a) and as a writ of audita querela, but the Ninth Circuit reversed. It held that defendant’s sentence was not “illegal” within the meaning of Rule 35 simply because the district court had made a “mistake of fact” concerning the effect of its JRAD. Likewise, the court held that defendant was not entitled to a writ of audita querela. U.S. v. Hovsepian, 307 F.3d 922 (9th Cir. 2002).
9th Circuit denies pre-guidelines prisoner credit for completing drug abuse program. (100) Effective in 1994, 18 U.S.C. § 3621(e)(2) (B) allowed the Bureau of Prisons to reduce the sentences of prisoners convicted of nonviolent offenses who completed a residential substance abuse treatment program. However, in adopting regulations under this statute, the Bureau of Prisons excluded inmates who are eligible for parole, i.e. pre-guidelines prisoners. These prisoners are referred to the Parole Commission to decide whether to advance their parole date based on completion of the substance abuse program. The Ninth Circuit upheld treating pre-guidelines prisoners differently, holding that this was the intention of Congress under the statute. Accordingly, petitioner had no right to custody credit for completing the substance abuse program. Delancy v. Crabtree, 131 F.3d 780 (9th Cir. 1997).
9th Circuit holds bank fraud is a continuing offense, but making false statements to a bank under § 1014, is not. (100) In U.S. v. Niven, 952 F.2d 289, 291 (9th Cir. 1991), the Ninth Circuit held that mail and wire fraud are not continuing violations because those offenses punish each use of the mail or wires. In the present case, the Ninth Circuit distinguished Niven, noting that bank fraud in violation of 18 U.S.C. § 1344 punishes the execution of a scheme to defraud or obtain money; “language that suggests the violation should be treated as continuing.” On the other hand, defendant was also convicted of making false statements to a bank in violation of 18 U.S.C. § 1014, which does not require a scheme to defraud, but instead punishes each false statement. Therefore the Ninth Circuit concluded that § 1014 is not a continuing offense. Accordingly, since no offenses were committed after the effective date of the sentencing guidelines, November 1, 1987, the guidelines did not apply. U.S. v. Nash, 115 F.3d 1431 (9th Cir. 1997).
9th Circuit finds adequate reasons for disparate sentences in pre-guidelines case. (100) Defendant was sentenced to 20 years, while one codefendant received probation and the other, two years. The Ninth Circuit held that in the absence of evidence that a defendant is being punished for exercising his right to stand trial, a court generally need not give an explanation for disparate sentences. In this case however, the district court gave adequate reasons for the disparity. The two codefendants withdrew from the criminal activity well before defendant did. Defendant had five prior felony convictions. He ran the fraudulent investment company, and the two defendants worked for him. The district court expressly found that defendant was the “most culpable individual” in this scheme. Their was no suggestion in the record that the disparity was due to an impermissible motive to punish defendant for exercising his trial rights. The sentence was affirmed. U.S. v. Bischel, 61 F.3d 1429 (9th Cir. 1995).
9th Circuit says correction of ambiguous sentence did not violate double jeopardy. (100) Defendant’s plea agreement contemplated a 30-year sentence for four separate cases. The district court’s judgment was ambiguous as to whether the sentence was concurrent or consecutive to other sentences. Defendant moved to correct the sentence by deleting consecutive language and drastically reducing the total jail time. The district court found the sentence illegal in its entirety and reimposed a new sentence which complied with the plea agreement. On appeal, the Ninth Circuit sustained the corrected judgment, finding the district court was authorized by the former version of Fed. R. Crim. P. 35(a) to vacate and correct the sentence. There was no double jeopardy violation because defendant had no expectation of finality in the illegal sentence. Finally, defendant was not deprived of credits because the corrected sentence put him in the exact situation he expected when he signed the plea agreement. U.S. v. Contreras-Subias, 13 F.3d 1341 (9th Cir. 1994).
9th Circuit upholds consecutive sentence on pre-guidelines count. (100) Defendant pled guilty to a pre-guidelines count arising out of an indictment in one city and two guidelines counts arising out of an indictment in another city. The district court ordered the pre-guideline sentence to run consecutive to the guideline terms. The Ninth Circuit affirmed, holding that the district court may run a guideline sentence consecutive to, instead of concurrent with, a pre-guidelines count. In so holding, the Ninth Circuit concurred with other circuits to have addressed this question. See e.g., U.S. v. Ewings, 936 F.2d 903, 910 (7th Cir. 1991); U.S. v. Lincoln, 925 F.2d 255, 256-57 (8th Cir.) cert denied, 111 S.Ct. 2838 (1991); U.S. v. Parks, 924 F.2d 68, 72-74 (5th Cir. 1991); U.S. v. Watford, 894 F.2d 665, 669 (4th Cir. 1990). These cases hold that a district court has discretion to make the sentences consecutive. U.S. v. Hicks, 997 F.2d 594 (9th Cir. 1993).
9th Circuit finds correction of illegal sentence was not vindictive or double jeopardy violation. (100) Defendants were convicted of conspiracy and possession with intent to distribute cocaine. They received 20 year sentences on the conspiracy count and 5 year probationary sentences on the possession count. When the Bureau of Prisons interpreted the conspiracy sentences as non-parolable, defendants filed an “old law” Rule 35 motion. At the same time the government filed a request to correct the illegal probationary terms on the possession counts, because the statute required 20 non-parolable years on that count. The government had not sought correction of the sentence earlier because the Bureau of Prison’s incorrect interpretation of the original conspiracy sentence had the effect of requiring a 20-year non-parolable term. The district court corrected both errors, ordering 20-year concurrent terms on both counts, with parole eligibility on the conspiracy count. The 9th Circuit affirmed, finding the government’s delayed request to correct the illegal portion was neither vindictive nor a violation of double jeopardy. U.S. v. Kinsey, 994 F.2d 699 (9th Cir. 1993).
9th Circuit finds resentencing with greater restrictions on parole unconstitutional. (100) Defendant was convicted of two counts of armed bank robbery and sentenced under the old law to concurrent 25 year terms with parole eligibility at the discretion of the Parole Commission under 18 U.S.C. section 4205(b)(2). The court of appeals later vacated and remanded the case for resentencing and the court reimposed the same term but pursuant to 18 U.S.C. section 4205(a), restricting defendant’s parole eligibility to a required service of at least one-third of his term. In a per curiam opinion, the 9th Circuit found the resentencing with greater limitations on parole was an unconstitutional increase in the sentence. The case was again vacated and remanded for resentencing. U.S. v. Steele, 988 F.2d 998 (9th Cir. 1993).
9th Circuit warns that state judge cannot require state sentence to be concurrent with federal. (100) While awaiting a self-surrender to serve a 5-year federal prison term, defendant was arrested and charged by state authorities. His plea agreement in state court provided that he would receive a term concurrent with his federal sentence. However, after the state sentenced him to a 7-year concurrent prison term, the federal authorities declined to accept him into federal prison until he completed his state sentence. He served the state sentence, and when he was accepted into federal custody, he was denied credit for the 3 years and 7 months he had served in state custody. Under 18 U.S.C. section 3568, in effect at the time of sentencing, the court had no authority to credit defendant with the time spent in state prison. The state judge had no authority to commit defendant to state prison to await transportation to the federal prison. As a result, defendant’s federal sentence did not begin until he was received at the federal prison. A concurring opinion cautioned lawyers and state sentencing judges to avoid the unjust result required in this case. Del Guzzi v. U.S., 980 F.2d 1269 (9th Cir. 1992).
9th Circuit upholds preguidelines sentence based on evidence from pretrial motions. (100) The 9th Circuit rejected defendant’s argument that testimony given at pretrial hearings was false. Defendant offered no evidence to contradict the government’s evidence. One cannot allege “there are mistakes and then stand mute without showing why they are mistakes.” The court also rejected defendant’s argument that he had no prior notice that the court would rely on the evidence presented at previous evidentiary hearings. The court found no general right to an evidentiary hearing at sentencing, noting that the presentence report put the defendant on notice that the facts from the prior hearings supported by the sworn testimony of witnesses, were before the court. The court was not persuaded by defendant’s argument that since the hearings were concerned with disqualifying his lawyer, he had no compelling motive to cross-examine the witnesses who were stating and implying that he was a marijuana smuggler. U.S. v. Kimball, 975 F.2d 563 (9th Cir. 1992).
9th Circuit holds that court need not explain reasons for 7-1/2 year sentence after 99-year sentence reversed. (100) Defendant was sentenced to 99 years’ imprisonment after his first trial, including consecutive sentences of two years each for the three counts now at issue. After reversal and remand, he was sentenced to 2-1/2 years to run consecutively, on each of the same three counts. He argued that he was, in effect, punished for appealing. The 9th Circuit rejected the argument, noting that if his aggregate sentence after remand had exceeded the original sentence, vindictiveness would be presumed, absent an adequate explanation. But since the new sentence did not exceed the original sentence in this case, the district court was under no obligation to explain its reasons. U.S. v. Todd, 964 F.2d 925 (9th Cir. 1992).
9th Circuit finds no evidence that defendant was penalized for going to trial. (100) Defendant argued that he was penalized for exercising his right to trial because he received 20 years for conspiracy while his co-defendants who pled guilty received at most a five-year sentence. The 9th Circuit rejected the argument, pointing out that the district court found that defendant was “far and away the first and most culpable in committing these crimes.” Defendant did not receive the maximum sentence and the sentence did not offend the eighth amendment. U.S. v. Jerome, 942 F.2d 1328 (9th Cir. 1991).
9th Circuit rejects habeas claim that refusal to apply Washington sentencing guidelines retroactively violated due process, equal protection and the Eighth Amendment. (100) A Washington state prisoner serving a 280 month sentence filed a federal habeas petition arguing that the 1981 Washington sentencing guidelines should be applied to him retroactively. He argued that failure to apply the state guidelines to him violated due process, equal protection and cruel and unusual punishment. The 9th Circuit rejected each of his claims in turn, finding that the Washington sentencing guidelines did not create any special liberty interests for prisoners sentenced earlier. McQueary v. Blodgett, 924 F.2d 829 (9th Cir. 1991).
9th Circuit holds that there is no expectation of finality in an illegal sentence. (100) Defendants were illegally sentenced to consecutive 12 year terms on 19 counts carrying a five year maximum. The district court then resentenced the defendants to two year terms on six counts, with sentences to run consecutively. The 9th Circuit rejected defendants’ contention that they had an expectation of finality in the two year terms of the new sentence because they had served more than two years. The court found that resentencing to concurrent terms of no more than five years would not violate double jeopardy because there is no expectation of finality in an illegal sentence. U.S. v. Jordan, 895 F.2d 512 (9th Cir. 1989).
9th Circuit holds that sentence of life without parole is unconstitutional if it can only be imposed when defendant goes to trial. (100) In U.S. v. Jackson, 390 U.S. 570 (1968), the Supreme Court held that the Federal Kidnapping Act, which allowed imposition of the death penalty solely by means of a jury verdict, was unconstitutional because it operated “to discourage assertion of the Fifth Amendment right not to plead guilty and the Sixth Amendment right to demand a jury trial.” Based on Jackson, the Washington Supreme Court reversed defendant’s death sentence and imposed a sentence of life without possibility of parole. However, the Washington death penalty statute allowing for the imposition of life without parole “applied only where the trial judge could reconvene the same jury that tried the defendant.” Accordingly, the 9th Circuit held that the defendant’s sentence must be further reduced to life with possibility of parole. Robtoy v. Kincheloe, 871 F.2d 1478 (9th Cir. 1989).
9th Circuit holds that question of adequacy of treatment for mental disorder in prison does not void sentence. (100) Defendant argued that his mandatory minimum 5-year sentence to prison constituted cruel and unusual punishment because the prisons do not provide psychiatric care adequate for Post-Traumatic Stress Disorder. The 9th Circuit held that in the posture of an appeal from the criminal sentence, “it is irrelevant whether [the defendant’s current treatment is inadequate], he must show that it cannot be made adequate.” Since he failed to do so, his sentence was affirmed. U.S. v. Kidder, 869 F.2d 1328 (9th Cir. 1989).
9th Circuit holds that failure to provide jury trial on sentence enhancement, if error, was harmless. (100) California Penal Code sections 1192.7(c)(23) and 667(a) require that a defendant personally use a weapon, whereas § 245(a), which defines the crime of assault with a weapon, does not. Petitioner argued that he was denied due process because these sections, with their personal use element, were never specifically charged or put before the jury. The 9th Circuit noted that under In re Winship, 397 U.S. 358, 364 (1970), due process requires “proof beyond a reasonable doubt of every fact necessary to constitute the crime.” Nevertheless, on the facts of this case, any error was harmless because it was clear that “the jury would have found the personal use element had it been permitted to do so.” Miller v. Vasquez, 868 F.2d 1116 (9th Cir. 1989).
9th Circuit holds that imposing consecutive sentence after reversal and retrial exceeded the mandate from the court of appeal. (100) A district court does not have inherent power to resentence defendants at any time. Its authority to do so must flow either from the court of appeals mandate under 28 U.S.C. § 2106 or from Fed. R. Crim. P. 35. Here defendant was originally sentenced on all counts concurrently. On appeal, three counts were affirmed and the fourth was reversed for retrial. When defendant was convicted the second time, the trial court imposed a consecutive sentence on the re-tried count. This altered the manner in which the other three affirmed sentences would be served, because the time served on these sentences would no longer be counted towards the completion of the sentence on the re-tried count. Accordingly it was beyond the authority of the trial court to sentence consecutively on the re-tried count. U.S. v. Lewis, 862 F.2d 748 (9th Cir. 1988).
9th Circuit finds no abuse of discretion in refusal to reduce sentence of terminally ill defendant. (100) Defendant had cancer of the esophagus and had a life expectancy of approximately one year. He filed a Rule 35 motion to reduce his sentence to time served, arguing that his 10-year sentence was clearly a life sentence and unduly harsh. The 9th Circuit upheld the denial of the motion to modify, noting that a “defendant is not entitled to probation simply because he suffers medical infirmities.” U.S. v. Thayer, 857 F.2d 1358 (9th Cir. 1988).
9th Circuit holds that § 4205(b) gives the trial court discretion to exceed the automatic parole eligibility of 4205(a). (100) In U.S. v. Gwaltney, 790 F.2d 1378 (9th Cir. 1986), the court held that a sentence under 18 U.S.C. § 4205(b) may provide for minimum parole in excess of the 10 years in 4205(a). The circuits are split on the question, but Gwaltney is binding in this circuit. Thus the 9th Circuit held that the defendant’s 365-year sentence with a 60-year minimum parole eligibility did not violate the statute. U.S. v. Whitworth, 856 F.2d 1268 (9th Cir. 1988).
Youth Act sentence may not be converted to an adult sentence unless the defendant has been convicted of another offense. (100) The Youth Corrections Act, 18 U.S.C. § 5005 et seq., was repealed in 1984. In 1986, the government moved to convert defendant’s sentence to that of an adult under § 5010(d). The 9th Circuit held that even if § 5010(d) was “saved” despite its repeal, the en banc decision in U.S. v. Won Cho, 730 F.2d 1260 (9th Cir 1984) held that a YCA sentence cannot be converted unless the defendant has been convicted of an additional offense. Since defendant had not been convicted of an additional offense, the district judge properly dismissed the government’s motion to convert his sentence. U.S. v. Davison, 856 F.2d 1289 (9th Cir. 1988).
9th Circuit holds that sentence was not reviewable even though co-participant received much lower sentence. (100) A sentence is generally not subject to appellate review if it is within statutory limits. The Ninth Circuit has recognized an exception when a codefendant has received a more severe sentence because he chose to stand trial rather than plead guilty. But the 9th Circuit found the exception inapplicable here. The other person was a co-conspirator in the spy ring, but was not a codefendant. Moreover, defendant kept the spy ring alive for nearly 10 years and became a central figure in the operation. The panel declined to review the difference between defendant’s 60-year minimum parole eligibility and the co-conspirator’s 10-year minimum parole eligibility. U.S. v. Whitworth, 856 F.2d 1268 (9th Cir. 1988).
9th Circuit holds sentence within statutory limits is generally not subject to review. (100) Sentencing is left to the sound discretion of the trial judge and his decision is reviewed only for an abuse of discretion. The sentence imposed by a federal district judge, if within statutory limits, is generally not subject to review. If the sentence raises issues of constitutional magnitude, however, review on appeal is more searching. Here the court found no impropriety in imposing a 20-year consecutive sentence for a RICO conspiracy. U.S. v. Yarbrough, 852 F.2d 1522 (9th Cir. 1988).
9th Circuit reverses imprisonment for civil contempt for nonpayment of fine. (100) The collection of criminal fines was governed by 18 U.S.C. § 3565 until that § was repealed effective November 1, 1987. In Hill v. Wampler, 298 U.S. 460, 463-64 (1936) the Supreme Court interpreted the predecessor to § 3565, stating that the “exclusive remedy” for enforcement of fines was execution against the property of the defendant,” unless the criminal sentence directed that the defendant be imprisoned until the fine was paid. Accordingly The 9th Circuit held that it was improper for the district court to imprison the defendant for civil contempt for refusing to pay a $20,000 fine. U.S. v. Grant, 852 F.2d 1203 (9th Cir. 1988).
9th Circuit holds that sentence within statutory limits is reviewed only for abuse of discretion unless it is “mechanically imposed.” (100) Defendant argued that the district court sentenced the codefendants as a group and refused to consider individual culpability in sentencing him to the maximum 10 years in custody. The 9th Circuit noted that the failure to individualize a sentence compels reversal for resentencing, but held that the trial judge here pronounced individual sentences. He stated his reasons for imposing the maximum sentence allowed by the plea bargain on the defendant, as well as his reasons for imposing lesser sentences on the codefendants. U.S. v. Monaco, 852 F.2d 1143 (9th Cir. 1988).
9th Circuit holds that disparity in sentences is not sufficient to show abuse of discretion. (100) A sentence which falls within statutory limits is ordinarily not reviewable unless there exist constitutional concerns. Disparate sentences alone normally do not constitute an abuse of discretion. Here the defendant argued that his 25 year sentence was more severe than his codefendants because he exercised his constitutional right to stand trial. But the 9th Circuit noted that the district court had specifically assured defense counsel that the sentence would not be enhanced because defendant went to trial. On the facts presented, there was no abuse of discretion. U.S. v. Meyers, 847 F.2d 1408 (9th Cir. 1988).
9th Circuit holds that defendant was properly required to begin serving his sentence seven years late. (100) Due to a clerical error, defendant was never ordered to surrender to begin serving his four-year sentence. Seven and one-half years later, the error was discovered and he was ordered to begin serving his sentence. The Ninth Circuit ordered him released pending appeal and then remanded the case for probation consideration. The district court declined to grant probation, noting that the defendant was fully aware that a mistake had been made. On appeal, the Ninth Circuit rejected the defendant’s arguments regarding waiver and estoppel, “speedy sentencing” and “credit for time at liberty,” and found no abuse of discretion in the denial of probation. The order for defendant to serve his sentence was affirmed. U.S. v. Martinez, 837 F.2d 861 (9th Cir. 1988).
9th Circuit holds that oral pronouncement of sentence prevails over written judgment. (100) Regardless of the trial judge’s intention as reflected in the written judgment, the words he speaks when the sentence is pronounced in the presence of the defendant are controlling. Here the transcript indicated the sentences were concurrent, while the judgment said “consecutive.” Defendant’s Rule 36 motion to correct the clerical error was remanded to the trial court to resolve a conflict between the court reporter who offered an amended transcript replacing the word “concurrent” with the word “consecutive,” and a stenographic expert who swore that the word “consecutive never appeared in the original court reporter’s notes.” U.S. v. Bergmann, 836 F.2d 1220 (9th Cir. 1988).
9th Circuit finds no vindictiveness in 30-year sentence after defendant rejected a 10-year plea bargain. (100) The imposition of a heavier sentence after a defendant voluntarily rejects a plea bargain does not, without more, invalidate the sentence. But where the court has taken a hand in the plea bargaining, the record must affirmatively show that no improper weight was given to the failure to plead guilty. Reviewing the question de novo, the 9th Circuit hold that the trial court’s “purely explicatory” role in explaining the plea bargain to the defendant did not constitute “involvement”, and therefore there was no inference of vindictiveness from the 30-year sentence. U.S. v. Morris, 827 F.2d 1348 (9th Cir. 1987).
9th Circuit holds that notice that the prosecution will request sentence enhancement need not be given in the indictment or information. (100) A state prisoner argued that 10-year sentence enhancement violated due process because the information filed by the state did not charge him with violation of the enhancement statute. The 9th Circuit rejected the argument, noting that the enhancement statute did not create a separate, substantive offense, and therefore notice in the information that the prosecution would request enhancement was not necessary. The prosecution notified petitioner over three weeks prior to sentencing that it intended to invoke the enhancement statute. This was sufficient for due process. LaMere v. Risley, 827 F.2d 622 (9th Cir. 1987).
9th Circuit upholds five-year sentence enhancement for prior drug conviction. (100) 21 U.S.C. 851(a)(2) provides that the five-year sentence enhancement for a prior drug conviction may not be imposed “unless the person either waived or was afforded prosecution by indictment for the offense for which such increased punishment may be imposed.” Defendant claimed this meant that the prior conviction had to have been on an indictment. The 9th Circuit held that the statute simply requires that the present conviction be on an indictment. U.S. v. Espinosa, 827 F.2d 604 (9th Cir. 1987).
9th Circuit upholds nine-year higher sentence for defendant who went to trial. (100) One defendant pleaded guilty and was placed on probation. The drug dealer pleaded guilty and received a one-year sentence. Defendant, who was the source, went to trial and was sentenced to ten years. The 9th Circuit found no abuse of discretion. The defendant did not argue that he was penalized for exercising his right to stand trial, and the trial court expressly referred to defendant’s privileged position as a government attorney and his apparent perjury at trial. U.S. v. Paris, 827 F.2d 395 (9th Cir. 1987).
9th Circuit holds that Armed Career Criminal Act is an enhancement and priors need not be proven beyond a reasonable doubt. (100) The Armed Career Criminal Act, 18 U.S.C. App. § 1202(a) is a sentence enhancement and not a separate statutory offense. Because the Act provides for sentence enhancement, the government was not required to prove defendant’s prior convictions beyond a reasonable doubt. Moreover, because a substantial basis existed for defendant’s prior convictions, his sentence did not violate due process. U.S. v. West, 826 F.2d 909 (9th Cir. 1987).
9th Circuit reverses for failure to “memorialize” reasons for imposing a higher sentence after the second trial. (100) After defendant’s second trial, the district court imposed a sentence that was one year and $5,000 greater than the original sentence. Apparently this was because the defendant had continued his involvement in questionable tax sheltering activities after the first trial. However, the 9th Circuit held that the district court’s failure to memorialize its reasons for imposing a higher sentence, as required by North Carolina v. Pearce, 395 U.S. 711 (1969);, required the sentence to be vacated and the case remanded for resentencing. U.S. v. Solomon, 825 F.2d 1292 (9th Cir. 1987).
9th Circuit holds that enhancement provision did not create a new offense and did not violate ex post facto principles. (100) Appellant was convicted of being a felon in possession of a firearm. His sentence was enhanced pursuant to 18 U.S.C. § 3147 because he had committed the firearm offense while he was out on bail pending appeal from his 1984 felony convictions. Judges Thompson, Sneed and Kozinski held that the enhancement provision does not create a new and separate offense. Moreover, § 3147 was already on the books when appellant committed the firearm offense (though it had not become effective when appellant was released on bail), so the application of the provision to this case was not an ex post facto violation. U.S. v. Patterson, 820 F.2d 1524 (9th Cir. 1987).
9th Circuit upholds greater sentence for third count on retrial. (100) Defendant was convicted of two counts of armed robbery and one count of unarmed robbery and sentenced to thirty years in prison -- with a suspended sentence and five years probation for the unarmed robbery count. The case was reversed on appeal due to an evidentiary error. At the retrial defendant was acquitted of the two armed robbery counts and convicted of the unarmed robbery count. He was sentenced to twenty years in prison. The 9th Circuit held that by imposing a sentence less severe than the sentencing package imposed the first time, the district court did not contravene the mandate of North Carolina v. Pearce, 395 U.S. 711 (1969) which restricts the imposition of a more severe sentence upon a defendant after a new trial. Judge Canby dissented. U.S. v. Bay, 820 F.2d 1511 (9th Cir. 1987).
9th Circuit upholds eight-month consecutive sentence for escape from county jail under California law. (100) Defendant, a California prisoner, was given consecutive sentences for kidnapping and escape from the county jail. Under California Penal Code § 1170.1(a) the trial court sentenced him to one-third of the 2-year middle term, i.e. eight months, for the escape. The 9th Circuit held that the eight-month sentence was proper. Although the provision applicable to escapes from county jail, P.C. § 4532(b), was amended in 1985 to eliminate the one-third reduction for consecutive sentences, the one-third rule was applicable to defendant’s sentence. Wasko v. Vasquez, 820 F.2d 1090 (9th Cir. 1987).
9th Circuit holds that double jeopardy does not prevent remand for resentencing even after defendant has begun to serve his sentence. (100) Defendant improperly received consecutive sentences on two counts. He argued that upon reversal, the appeals court could only vacate the second sentence, rather than vacating both to permit resentencing, because he had already commenced serving one sentence. Relying on U.S. v. Di Francesco, 449 U.S. 117 (1980), the 9th Circuit held that double jeopardy does not prohibit complete resentencing: “[Defendant] has no legitimate expectation of finality in the original sentence when he has placed those sentences in issue by direct appeal and has not completed serving a valid sentence.” Both sentences were vacated, and the case was remanded for resentencing. U.S. v. Andersson, 813 F.2d 1450 (9th Cir. 1987).
9th Circuit upholds similar sentences coupled with comments about the severity of the offense. (100) U.S. v. Barker, 771 F.2d 1362, 1369 (9th Cir. 1985), held that appellate courts may review sentencing to ensure that there has been an exercise of discretion rather than imposition of sentence on a mechanical basis. Here however, the 9th Circuit found no abuse of discretion in sentencing five defendants in accordance with the plea bargain, to less than the maximum sentences. U.S. v. Potts, 813 F.2d 231 (9th Cir. 1987).
9th Circuit holds that district judge is not required to explain the basis of disparate sentences. (100) Defendant claimed that his two-year sentence was disparate compared to his co-defendant’s six-month sentence. He argued that the co-defendant was more culpable and had a prior conviction. However, the 9th Circuit held that a district court judge is not required to explain the basis for disparate sentences, absent an infringement of defendant’s constitutional right to stand trial, as long as the sentences are within statutory limits. U.S. v. Endicott, 803 F.2d 506 (9th Cir. 1986).
9th Circuit reverses sentence enhancement based on prior conviction obtained by a procedure later found unconstitutional, though not retroactive. (100) Defendant was convicted of firearms violations by a convicted felon. The government sought to have him sentenced as a dangerous special offender (DSO) based upon a prior conviction for second degree murder in 1973 and assault with a deadly weapon in 1962. The district court ruled that the 1962 conviction was invalid because the district attorney and the trial judge had commented on defendant’s refusal to testify at trial. Although not unconstitutional at the time, the U.S. Supreme Court later held in Griffin v. California, 380 U.S. 609 (1965) that such conduct violated the Fifth Amendment. Griffin is not retroactive, but on appeal, the Ninth Circuit found that to permit the government to enhance a subsequent sentence based on a conviction involving such error weakens the constitutional right against self-incrimination. Judge Sneed dissented. U.S. v. Burt, 802 F.2d 330 (9th Cir. 1986).
9th Circuit finds no requirement to harmonize defendant’s sentences with those of other defendants. (100) Defendant was convicted for transporting pictures of minors engaging in sexually explicit conduct in foreign commerce (18 U.S.C. § 252) and importing obscene photographs (18 U.S.C. § 545). He was sentenced to the maximum term on each count, with the terms to run consecutively. Defendant claimed on appeal that the 15 year sentence was unduly harsh. The Ninth Circuit held that imposition of the maximum term does not trigger instant appellate scrutiny. The trial judge took extensive testimony on the recidivist tendencies of pedophiles. There was no need to harmonize defendant’s sentence with sentences given to others convicted of the same crime. The facts of each case are different and each offender need not receive the same sentence. U.S. v. Meyer, 802 F.2d 348 (9th Cir. 1986).
9th Circuit upholds enhanced sentence regardless of whether defendants knew that more than 1000 pounds of marijuana was involved. (100) Defendants claimed that the government failed to prove that they knew that the engine mounts contained more than 1000 pounds of marijuana. The Ninth Circuit held that knowledge of the amount of marijuana involved is not an element of the aggravated offense. 21 U.S.C. § 841(b)(6) is merely a penalty provision. The court did not decide whether the indictment must allege that more than 1000 pounds was involved, since the indictment here clearly alleged this. U.S. v. Normandeau, 800 F.2d 953 (9th Cir. 1986).
9th Circuit upholds sentencing by a different judge. (100) Rule 25(b) of the Federal Rules of Criminal Procedure permits a judge other than the trial judge to sentence a defendant, and the Ninth Circuit reviews such a decision only for abuse of discretion. Here, the defendant pleaded guilty after his trial had begun. The transcript was available to the sentencing judge and defendant did not contend that the judge failed to become familiar with the case. The sentencing judge presided over the evidentiary hearing on sentencing matters. There was no abuse of discretion. U.S. v. Edwards, 800 F.2d 878 (9th Cir. 1986).
9th Circuit rules that increasing a legal sentence after it had been fully served would violate double jeopardy. (100) Defendant was sentenced to two concurrent one-year sentences to be followed by a consecutive five-year sentence. His conviction on the five-year count was reversed, and the government sought to have the case remanded for the trial judge to consider increasing the sentences on the two one-year counts. Noting that defendant had already completed serving his one-year sentence the Ninth Circuit held that increasing a legal sentence after it had already been fully served would violate the Double Jeopardy Clause. Extensive discussion of cases involving remands for resentencing. U.S. v. Arrellano-Rios, 799 F.2d 520 (9th Cir. 1986).
9th Circuit finds no showing that judge failed to exercise discretion in imposing maximum sentence for “organized crime.” (100) Defendant claimed the trial court erred in denying his motion to vacate or reduce his sentence. He asserted that the judge rigidly imposed the maximum sentence on all “organized crime” defendants, pointing to a quotation to that effect in U.S. v. Perri, 513 F.2d 572, 573, n.1 (9th Cir. 1985). The Ninth Circuit rejected this argument, noting that defendant’s several codefendants received considerably lesser sentences, and that defendant “cites no instance, since the district judge’s decade-old remarks, quoted in Perri, to suggest that the judge generally applies such a policy.” U.S. v. Branco, 798 F.2d 1302 (9th Cir. 1986).
9th Circuit finds no abuse of discretion for new judge to sentence defendant in trial judge’s absence. (100) Oregon district judge presided over defendant’s trial in Hawaii, but returned to his home district before sentencing. Hawaii district judge took the verdict and read the presentence report, the government’s sentencing memorandum and the defendant’s response. The judge did not read the transcript, but this step is not required in every case, and the judge showed his familiarity with the case at the sentencing hearing. The sentencing judge did not abuse his discretion in deciding to sentence defendant rather than grant a new trial. U.S. v. Spinney, 795 F.2d 1410 (9th Cir. 1986).
9th Circuit holds that extra seven years did not penalize defendants for exercising constitutional right to trial. (100) The original plea agreement called for three years in custody. After defendants withdrew their plea and went to trial, the court sentenced them to ten years plus $148,171 restitution. The judge’s explanation that he was not punishing them for going to trial, but rather would have given them “credit” for pleading guilty, was sufficient. Judge Reinhardt dissented. U.S. v. Carter, 795 F.2d 1460 (9th Cir. 1986).
9th Circuit finds no double jeopardy prohibition against correcting an illegal sentence even if it increases the punishment. (100) The government may appeal an illegal sentence without offending double jeopardy. Moreover, this rule applies even here, where the defendants have begun to serve their original sentences, so long as the defendants are given credit for punishment already exacted. U.S. v. Edmonson, 792 F.2d 1492 (9th Cir. 1986).
9th Circuit holds that government’s parole recommendation did not violate plea agreement. (100) The government’s recommendation that parole not be granted until maximum sentence was served did not violate a plea agreement promising not to make recommendations concerning sentencing. Sentencing is a separate and distinct function from parole which is handled by the Parole Commission. U.S. v. Clark, 781 F.2d 730 (9th Cir. 1986).
9th Circuit finds no abuse of discretion in imposing disparate sentences. (100) Hall and Marrero pleaded guilty to identical offenses. Hall was sentenced to five years and a $15,000 fine, while Marrero’s sentence was suspended and he was placed on five years’ probation. Since the sentences were within statutory limits, the trial judge did not have to explain his reasons, and did not abuse his discretion. U.S. v. Hall, 778 F.2d 1427 (9th Cir. 1985).
9th Circuit holds that expungement power of courts is not limited to cases authorized by statute. (100) An order expunging 1962 counterfeiting conviction (on which defendant received a Presidential pardon in 1972), is vacated because the district court failed to prove any reasons, or a factual record for analysis on appeal. The Ninth Circuit noted, however, that the remedy of expungement is not limited to cases authorized by statute. Pursuant to “broad equitable powers,” courts may order expungement where there has been an unlawful arrest, or where the criminal statute under which a person has been arrested has been declared unconstitutional. Some courts have even found “inherent power” to expunge criminal records when necessary to vindicate “substantial rights.” U.S. v. G., 774 F.2d 1392 (9th Cir. 1985).
9th Circuit reverses maximum sentences based on “general deterrence” without regard to individual defendants. (100) The district court gave all five defendants the maximum five years allowed for smuggling marijuana, despite the fact that defendants had differing degrees of culpability. The government had recommended sentences ranging from one year to 18 months. The circuit court held that the trial court violated the defendant’s rights to “individualized” sentencing, improperly basing its sentence on the theory of “general deterrence.” The case was reversed and remanded for resentencing before a different judge. U.S. v. Barker, 771 F.2d 1362 (9th Cir. 1985).
9th Circuit requires no explanation for disparity in sentences because both defendants went to trial. (100) In U.S. v. Capriola, 537 F.2d 319 (9th Cir. 1976), the court held that if one defendant stands trial and receives a greater sentence than a codefendant who pleaded guilty, the sentencing judge must explain the disparity on the record. This rule does not apply here, however, since both defendants went to trial. U.S. v. Stewart, 770 F.2d 825 (9th Cir. 1985).
9th Circuit upholds assessment of costs of prosecution. (100) Assessment of $8,902 against the defendant for costs of prosecution incurred when he obtained a change of venue to Guam for tactical reasons was proper. U.S. v. Patel, 762 F.2d 784 (9th Cir. 1985).
9th Circuit affirms more severe sentence for defendant who refused to cooperate and exercised right to jury trial. (100) It was proper for the trial judge to consider defendant’s refusal to cooperate with the government and his belief that the defendant committed perjury at trial. The defendant’s sentence was not increased because he went to trial; rather the judge merely showed leniency by reducing the sentences of the others because of their cooperation. U.S. v. Brown, 761 F.2d 1272 (9th Cir. 1985).
9th Circuit affirms enhanced penalty for second offense. (100) Since the enhanced penalty for a second offense of drunk driving was not an element of the offense, the prior offense did not have to be charged in the information. The defendant should have been advised of the enhancement before pleading guilty, but the record showed that he knew of the enhancement, so there was no error. U.S. v. Kearney, 750 F.2d 787 (9th Cir. 1984).
9th Circuit holds that judge has no jurisdiction to select place of confinement. (100) The judge reduced the sentence to six months in a community treatment center, in an attempt to circumvent Bureau of Prisons regulations requiring that RICO defendants be placed in custodial facilities. The Ninth Circuit reversed and reinstated the original two-year custodial sentence. U.S. v. Dragna, 746 F.2d 457 (9th Cir. 1984).
9th Circuit holds that hearsay is admissible at hearing on motion to reduce sentence. (100) Judge need not hold a hearing on a motion to reduce sentence under Rule 35, but if a hearing is held, hearsay may be considered. Here the court did not abuse its discretion in considering hearsay information that one week before sentencing the defendant had passed $314,000 in bad checks in Canada. U.S. v. Eastman, 743 F.2d 1322 (9th Cir. 1984).
9th Circuit states that court may recommend place of confinement. (100) It was not an abuse of discretion for the Idaho district judge to recommend that the juvenile be placed in a California treatment facility. Such a recommendation, even when couched as an “order,” is not binding on the Attorney General, however. U.S. v. Doe, 734 F.2d 406 (9th Cir. 1984).
9th Circuit abolishes the concurrent sentence doctrine. (100) The en banc Ninth Circuit ruled that the concurrent sentence doctrine will no longer be applied. All points raised on appeal will be reviewed, regardless of whether the defendant might receive no immediate benefit from reversal of one of several concurrent sentences. U.S. v. DeBright, 730 F.2d 1255 (9th Cir. 1984) (en banc).
9th Circuit holds that imposing a second “split sentence” was illegal. (100) Defendant received a split sentence, serving six months in custody and receiving a term of probation. While on probation, he was revoked. The trial court gave him another split sentence, with six more months in custody and a term of probation. This sentence was illegal since once someone has served six months in custody, he cannot receive a split sentence. Defendant’s claim that the remedy is to terminate his probation was rejected. The trial court may remedy the illegal sentence by imposing either imprisonment or probation. U.S. v. Principato, 717 F.2d 1313 (9th Cir. 1983).
10th Circuit says court was not required to apply guidelines to determine length of pre-guidelines sentence. (100) Defendant argued that the district court should have applied the guidelines in calculating the length of his pre-guidelines sentence. Earlier he had been sentenced under the guidelines for an unrelated offense. He claimed that if the order of his sentencings had been reversed, the other court would have applied § 5G1.3(c), which would have resulted in a lower aggregate sentence for the two offenses. The 10th Circuit found no abuse of discretion in failing to apply the guidelines to defendant’s pre-guidelines offense. The district court appropriately considered defendant’s stipulation that his sentence would be calculated under pre-guidelines law, and also considered the need to avoid sentencing disparity among co-defendants. U.S. v. Furman, 31 F.3d 1034 (10th Cir. 1994).
10th Circuit upholds consecutive sentences in pre-guidelines case. (100) In a pre-guidelines case, defendant was convicted of 13 different counts of mail and securities fraud. He was sentenced to five consecutive five year terms, for a total of 25 years. The 10th Circuit affirmed, rejecting defendant’s contention that the district court attempted to control his sentence beyond appellate review by imposing a sentence that would remain the same even if one of the counts which he appealed was dismissed. Each use of the mails is a separate offense under the mail fraud statute and consecutive sentences may be imposed even if the mailings arose from a single concerted plan to defraud. A similar doctrine is applicable to securities act violations. Thus, the district court could have ordered all 13 counts to be served consecutively. The court also rejected defendant’s contention that the sentences violated the 8th Amendment. U.S. v. Rogers, 960 F.2d 1501 (10th Cir. 1992).
10th Circuit upholds consecutive sentence for pre-guidelines and post-guidelines offenses. (100) The 10th Circuit held that a sentencing court may impose consecutive sentences if a defendant is convicted of both a pre-sentencing guidelines offense and a post-sentencing guidelines offense, even if the guidelines, had they applied to both offenses, would have required concurrent sentences. The district court has “unfettered discretion” to impose sentences on pre-guidelines counts consecutively or concurrently, and nothing in the guidelines precludes a court from ordering that a sentence imposed on a pre-guidelines count be served consecutively to a sentence imposed on a guidelines count. U.S. v. Litchfield, 959 F.2d 1514 (10th Cir. 1992).
11th Circuit approves consideration of guidelines in setting pre-guidelines sentence. (100) Defendant argued that the district court violated the ex post facto clause by applying the guidelines to his pre-guidelines case. The Eleventh Circuit found no error since the court merely considered the guidelines, as one of many factors, in setting the pre-guidelines sentence. On several occasions, the district court acknowledged that this was a pre-guidelines case. The sentence imposed was within the statutory limits. The district court did not abuse its discretion. U.S. v. Hall, 47 F.3d 1091 (11th Cir. 1995).
11th Circuit says court may consider that pre-guidelines sentence is parolable. (100) Defendant received concurrent six-year sentences on two pre-guidelines counts. This sentence was, on its face, longer than his co-conspirators’ sentences. The district court noted that the co-conspirators were sentenced under the guidelines and would serve their full terms, while defendant was sentenced under pre-guidelines law and would be eligible for parole. Thus, the difference between the sentences was “illusory.” Defendant claimed that the court made a “groundless inference” that defendant would be paroled. The 11th Circuit found no error. The 6-year sentences were well below the statutory maximum of 20 years. The district court’s assumption that parole might be granted was not a groundless inference. U.S. v. Schmidgall, 25 F.3d 1523 (11th Cir. 1994).
11th Circuit says court not required to explain pre-guidelines sentence within statutory maximum. (100) The 11th Circuit rejected defendant’s claim that the district court erroneously failed to offer an explanation for the seven-year sentence it imposed in a pre-guidelines case. The sentence was well within the statutory maximum of 15 years allowed for defendant’s two count felony. A district court is not required to explain a pre-guidelines sentence that is within the maximum provided by law. The issue of whether the district court’s pre-guidelines sentence was illegally imposed is properly addressed by a motion to the district court under Fed. R. Crim. P. 35(a). No such motion was made in this case. U.S. v. Blakey, 960 F.2d 996 (11th Cir. 1992), appeal after new trial, 14 F.3d 1557 (11th Cir. 1994).
11th Circuit remands where unclear whether judge applied guidelines or pre-guidelines law. (100) Both of the offenses alleged against defendant occurred pre-guidelines, but the transcript of the sentencing hearing did not make it clear whether the district court applied the guidelines or pre-guidelines law. Facially, the hearing appeared to have been conducted as one pursuant to the guidelines. The 11th Circuit vacated the sentences and remanded for resentencing with instructions for the district court to resentence defendant under the applicable standard. U.S. v. Smith, 945 F.2d 365 (11th Cir. 1991).
California District Court warns that motion to vacate an “old law” sentence is “risky business.” (100) Petitioner committed his offenses after the district court held the guidelines unconstitutional. He pled guilty after the 9th Circuit held the guidelines unconstitutional and was sentenced before the Supreme Court upheld the constitutionality of the guidelines. He filed a pro per petition to vacate his sentence under 28 U.S.C. § 2255 complaining about the amount of cocaine used as the basis for his sentence. Counsel was appointed, and decided that the issue should be left dormant because the guideline range was higher than the 9 years which defendant received under the old law. The district court noted the wisdom of this course of action, pointing out that vacating sentences imposed under “old law” must be regarded as “risky business.” The court noted that if the issue had not been withdrawn, it would have presented the “intriguing question” of whether petitioner’s sentence could be enhanced by application of the guidelines solely due to his asking the court under § 2255 to vacate his sentence on the ground that it was a sentence “not in accordance with law.” Maya v. U.S., 749 F.Supp. 1019 (C.D. Cal. 1990).