138 F.2d 842 (4th Cir. 1943), 5085, Kitt v. United States

• Docket Nº: 5085.
• Citation: 138 F.2d 842
• Party Name: KITT v. UNITED STATES.
• Case Date: November 08, 1943
• Court: United States Courts of Appeals, Court of Appeals for the Fourth Circuit

Page 842

138 F.2d 842 (4th Cir. 1943)

KITT

v.

UNITED STATES.

No. 5085.

United States 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, COPER, 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.

Page 843

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 than an excessive sentence of imprisonment (such as that imposed upon Kitt in the original sentence) is not absolutely void, but is rather voidable as the excess, beyond the maximum authorized by the statute. We could, therefore, had we so...