U.S. v. Clayton

• Citation: 588 F.2d 1288
• Decision Date: 04 January 1979
• Docket Number: No. 77-1990,77-1990
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Sandra CLAYTON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1288

588 F.2d 1288

UNITED STATES of America, Plaintiff-Appellee, v. Sandra CLAYTON, Defendant-Appellant.

No. 77-1990.

United States Court of Appeals, Ninth Circuit.

Jan. 4, 1979.

William W. Graham, Deputy Federal Public Defender, Los Angeles, Cal., for defendant-appellant.

David R. Hinden, Asst. U. S. Atty. (argued), Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before WALLACE and CHAMBERS, Circuit Judges, and WOLLENBERG ^*, District Judge.

WOLLENBERG, Senior District Judge.

This is an appeal from a district court judgment revoking probation of defendant-appellant and ordering execution of her original sentence of imprisonment. Sandra Clayton pleaded guilty to one count ¹ of possessing counterfeit government obligations as proscribed by 18 U.S.C. § 472. She was sentenced on October 7, 1974, to six years imprisonment. However, pursuant to 18 U.S.C. § 3651, it was ordered that appellant serve the first ninety days of her sentence on consecutive weekends in a jail-type institution. The balance of the six-year sentence was suspended, and she was placed on five years probation on the following conditions: that she "(1) obey all laws, Federal State and local; (2) comply with all the rules and regulations of the Probation Officer; and (3) keep and maintain the order of the Court with respect to the jail-type sentence imposed." Record at 7.

Clayton satisfactorily served twelve consecutive weekends (twenty-four days) of imprisonment. ² On March 15, 1975, she failed to appear for a weekend of incarceration at the Los Angeles County Jail, and probation revocation proceedings were commenced pursuant to 18 U.S.C. § 3653. At the probation revocation hearing held on June 2, 1975, the district court vacated its order of October 7, 1974, and ordered that the originally imposed six-year sentence be executed. Then the court, referring again to 18 U.S.C. § 3651, ordered that appellant serve the first six months of her sentence in a jail-type institution. The balance of the sentence was suspended, and she was placed on probation for five years on condition that she "obey all laws, Federal, State and local and comply with all the rules and regulations of the Probation Officer." Record at 13. In its written judgment revoking probation, the court made no mention of granting appellant credit for the twenty-four days she had already served.

Clayton satisfactorily completed six months of imprisonment. Subsequently on three different occasions in 1976, she pleaded guilty to petty theft in Los Angeles Municipal Court in violation of Cal.Penal Code § 484 and was sentenced by that court. Record at 15. Probation revocation proceedings were set in motion again by a petition filed on June 26, 1976. Appellant opposed these efforts by filing a motion to dismiss the probation revocation petition and to be discharged from custody on essentially the same grounds as argued on this appeal. At the probation revocation hearing, held on December 13, 1976, appellant's motion was denied, and the two previous probation orders were vacated. It was ordered the "further execution" of Clayton's previously imposed six-year prison sentence be carried out. Record at 26. Appellant is now serving that sentence.

Appellant claims that the court's order of December 13, 1976, revoking probation and reinstating the six-year prison sentence, was invalid because she was not legally on probation at the time she allegedly violated that probation by committing three petty thefts. She contends that she was not on probation at the time in question because the court's order of June 2, 1975, was invalid in that the requirement that she serve six months in a jail-type institution, when viewed in conjunction with the time she had already served for the original offense, violated the provision of 18 U.S.C. § 3651 that a probationary sentence may not be added to a prison sentence that exceeds six months in duration. Appellant therefore argues that "the court order of December 13 executing the six-year sentence constituted double punishment for the same offense in violation of defendant's right to be protected from being twice put in jeopardy for the same offense under the Fifth Amendment of the United States Constitution." Appellant's Brief at 8.

Under 18 U.S.C. § 3651:

Upon entering a judgment of conviction of any offense . . . if the maximum punishment provided for such offense is more than six months, (the) court . . . may impose a sentence in excess of six months and provided that the defendant be confined in a jail-type institution . . . for a period not exceeding six months and that the execution of the remainder of the sentence be suspended and the defendant placed on probation for such period and upon such terms and conditions as the court deems best.

The period of probation, together with any extension thereof, shall not exceed five years.

When and if a probationer violates conditions of probation, 18 U.S.C. § 3653 provides that he or she may be brought before the court for a hearing.

"Thereupon the court may revoke the probation and require him to serve the sentence imposed, or any lesser sentence, and if imposition of sentence was suspended, may impose any sentence which might originally have been imposed." 18 U.S.C. § 3653.

Each action of the district court must be analyzed to determine the correctness of the sentence appellant is currently serving.

a. The judgment of October 7, 1974, can be viewed either as a split sentence of ninety days incarceration in the custody of the Attorney General and five years probation thereafter, or it can be viewed as an order of probation for five years with one condition being that Clayton serve ninety days on consecutive weekends in a jail-type institution.

Under the first alternative, the sentence was illegal because the court cannot require weekend service; the manner in which sentence is served is to be determined by the agencies of the Department of Justice. United States v. Haseltine, 419 F.2d 579, 581-82 (9th Cir. 1969), Overruled on other grounds, United States v. Bishop, 412 U.S. 346, 351 & n.3, 93 S.Ct. 2008, 36 L.Ed.2d 941 (1972). Furthermore, Haseltine makes clear that probation does not commence until all the weekends are served so Clayton was not on probation at the time of the alleged violation by failing to appear for a weekend of incarceration. However, appellant did not raise the illegality of the first sentence and thus is precluded from doing so at this time. Any illegality was corrected in the judgment of June 2, 1975, in which Clayton was resentenced. A court may always correct an illegal sentence. Bozza v. United States, 330 U.S. 160, 67 S.Ct. 645, 91 L.Ed. 818 (1946). Cf. United States v. Best, 571 F.2d 484 (9th Cir. 1978); United States v. Stevens, 548 F.2d 1360 (9th Cir.), Cert. denied, 430 U.S. 975, 97 S.Ct. 1666, 52 L.Ed.2d 369 (1977).

This raises the problem that the second sentence, imposing incarceration for six months, suspending the rest of the six-year sentence, and placing appellant on probation for five years, is more severe than the sentence imposed originally. But the Fifth Amendment double jeopardy protection is not violated here because the record clearly indicates that the more severe sentence was imposed because of appellant's conduct in failing to obey the court's order. A harsher sentence on resentencing may be imposed if justified by reference to conduct of the defendant occurring subsequent to the original sentence. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1968); Rewak v. United States, 512 F.2d 1184, 1186 (9th Cir. 1975).

Alternatively, the judgment of October 7, 1974, can be viewed as an order suspending the sentence of six years in custody of the Attorney General and imposing probation for a period of five years with one condition being that Clayton serve ninety days on consecutive weekends in a jail-type institution. This is a legal sentence within the discretion of the court, and when Clayton violated the condition of probation, the court upon revocation of probation could impose the sentence it might originally have imposed, 18 U.S.C. § 3653, even if more severe than the original sentence. See Nicholas v. United States, 527 F.2d 1160, 1162 (9th Cir. 1976); Smith v. United States, 505 F.2d 893, 895 (5th Cir. 1974); Thomas v. United States, 327 F.2d 795, 797 (10th Cir.), Cert. denied, 377 U.S. 1000, 84 S.Ct. 1936, 12 L.Ed.2d 1051 (1964).

b. We look now to the second sentence, imposed in the judgment of June 2, 1975, in which appellant was ordered to spend, in a jail-type institution, the first six months of the six-year sentence that could have originally been imposed and which was imposed in this order. The balance of the sentence was suspended, and appellant was placed on probation for five years.

We have ruled, as discussed Supra, that double jeopardy problems are not raised by this more severe sentence. The...