Kitt v. United States, 5085.

• Citation: 138 F.2d 842
• Decision Date: 08 November 1943
• Docket Number: No. 5085.,5085.
• Parties: KITT v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

138 F.2d 842 (1943)

KITT v. UNITED STATES.

No. 5085.

Circuit Court of Appeals, Fourth Circuit.

November 8, 1943.

Hiram M. Smith, of Richmond, Va., for appellant.

Walkley E. Johnson, Asst. U. S. Atty., of Newport News, Va. (Sterling Hutcheson, U. S. Atty., and John V. Cogbill, Asst. U. S. Atty., both of Richmond, Va., on the brief), for appellee.

Before PARKER, SOPER, and DOBIE, Circuit Judges.

DOBIE, Circuit Judge.

Harry Kitt (hereinafter called Kitt), the appellant here, was, on August 12, 1942, sentenced by the District Court, under an indictment containing five counts, as follows: upon each of the first four counts to a term of four years' imprisonment and a fine of $200, and, upon the fifth count to a term of two years' imprisonment and a fine of $200. The District Court specified that the sentence of imprisonment imposed under counts 2, 3, 4 and 5 was to run concurrently, and not consecutively, with the sentence under count 1. Thus Kitt was sentenced to imprisonment for a maximum term of four years.

The case was duly appealed to this Court, 132 F.2d 920. We sustained, as against various allegations of error, the conviction. We, however, upon confession of error by the United States as to the fourth count, eliminated the sentences under that count. It was apparent, too, under the opposite federal statutes, 26 U.S.C.A. Internal Revenue Code, §§ 2810, 2833, 2834, 2913, that the maximum sentence of imprisonment which could be imposed upon Kitt, under each of the first three counts, was two years. The sentence of two years' imprisonment under the fifth count was proper under the statutes, and this was affirmed. We remanded the case to the District Court with the direction that Kitt be sentenced under each of the first three counts in the indictment.

On March 18, 1943, in resentencing Kitt, the District Court adjudged that Kitt be "imprisoned for a term of two years and fined the sum of $200 on each of the First, Second and Third Counts of the indictment, the sentence under Count 2 to run consecutively and not concurrently with the sentences imposed under Counts 1 and 3, and the sentence imposed under Count 3 to run concurrently and not consecutively with the sentence imposed under Count 1." It is thus clear that the maximum period of imprisonment was the same under both the original sentence and the resentence.

Kitt, on the present appeal, contends that the District Court, in resentencing him under our mandate, was bound by all that part of its original sentence which was within the statutes; that the District Court could not change the provisions of the original sentences that they should run concurrently and provide in the resentence that these terms of imprisonment should run consecutively. The contention of the United States, on the other hand, is that "when the Appellate Court referred the case back for resentencing the Trial Court was not restricted by the terms of the prior sentences but instead could impose such sentences as were within the law as if no prior sentences had been imposed." We think this contention of the United States is sound and should be upheld.

The rule seems well established in the federal courts that an excessive sentence of imprisonment (such as that imposed upon Kitt in the original sentence) is not absolutely void, but is rather voidable as to the excess beyond the maximum authorized by the statute. We could, therefore, had we so desired, have stricken off the excess, and have allowed the valid portion of the sentence to remain. United States v. Pridgeon, 153 U.S. 48, 14 S.Ct. 746, 38 L.Ed. 631; Dodge v. United States, 2 Cir., 258 F. 300, 7 A.L.R. 1510; Priori v. United States, 6 Cir., 6 F.2d 575; Spirou v. United States, 2 Cir., 24 F.2d 796. Had we done this, leaving the sentences all concurrent, Kitt would have been imprisoned for a maximum of two years.

We think, however, that we are not limited to such a procedure. We may, as we did, remand the case for an entirely new resentence. In many instances, and we thought the instant case was one of them, this seems a wiser course. Whitworth v. United States, 8 Cir., 114 F. 302. See, also, Williams v. United States, 168 U.S. 382, 18 S.Ct. 92, 42 L.Ed. 509; Wechsler v. United States, 2 Cir., 158 F. 579.

This brings us to the crucial question raised on this appeal. What were the powers of the District Judge when we remanded the case with the direction that Kitt be resentenced? If the District Judge was limited solely to striking off the excessive sentence, leaving the valid portions of the original sentence in effect, then a remand was a foolish gesture. Our mandate should have directed explicitly and solely such a striking off of the excess punishment.

We think, though, that upon the remand with directions for a resentence, the District Judge, unrestricted by the original sentence, had the power to impose upon Kitt any sentence which was within the limits prescribed by the statute. Kitt then stood in the same position that he occupied when, after the jury's verdict of guilty, he first stood before the District Judge to be sentenced.

We...