U.S. v. Lundien

• Decision Date: 07 August 1985
• Docket Number: No. 84-5224,84-5224
• Citation: 769 F.2d 981
• Parties: UNITED STATES of America, Appellee, v. Kenneth James LUNDIEN, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 981

769 F.2d 981

UNITED STATES of America, Appellee, v. Kenneth James LUNDIEN, Appellant.

No. 84-5224.

United States Court of Appeals,

Fourth Circuit.

Argued April 5, 1985.

Decided Aug. 7, 1985.

F. Andrew Carroll, III, Alexandria, Va., for appellant.

William G. Otis, Asst. U.S. Atty., Alexandria, Va. (Elsie L. Munsell, U.S. Atty., Alexandria, Va., Deborah Keith Meyers, Sp. Asst. U.S. Atty., Alexandria, Va., on brief), for appellee.

Before SPROUSE and WILKINSON, Circuit Judges, and BUTZNER, Senior Circuit Judge.

SPROUSE, Circuit Judge:

Kenneth James Lundien pled guilty in the district court to assaulting a federal officer and kidnapping in violation of 18 U.S.C. Secs. 111, 1201(a)(1) (1982). The district court initially sentenced him to concurrent sentences of ten years on each count but five days later, upon motion by the government, amended the sentence on the kidnapping count by increasing it to twenty years. Lundien appeals, contending that because he had started to serve his sentence the enhancement of his sentence by resentencing violated his rights under the Double Jeopardy Clause of the fifth amendment. We affirm.

Lundien escaped from the Arizona State Prison in January 1984. During his flight from confinement, Lundien shot an FBI agent and commandeered an automobile, forcing its occupant to drive with him from Alexandria, Virginia, to New York City. Lundien was apprehended in March 1984 and indicted in the district court for the Eastern District of Virginia for assaulting a federal officer (Count 1), in violation of 18 U.S.C. Sec. 111 (1982), and for kidnapping (Count 2), in violation of 18 U.S.C. Sec. 1201(a)(1) (1982). Lundien entered into a plea agreement under Fed.R.Crim.P. 11(e)(1)(B), pursuant to which he pled guilty to both counts and the government agreed to recommend that the sentences run concurrently. In the course of accepting Lundien's guilty pleas, the district court indicated that it would accept the recommendation.

At sentencing on July 6, 1984, the district court sentenced Lundien to serve ten years on each count, with sentences to run consecutively. Immediately following the court's pronouncement, defense counsel reminded the court that the plea agreement stated that the sentences were to run concurrently. The court then stated:

Alright, fine. Then I modify the sentence to let the ten year term on the kidnapping run concurrently with the assaulting a Federal officer.

The sentencing hearing concluded without further discussion. On that same day, the court entered a Judgment and Commitment Order imposing a ten-year sentence on each count, to run concurrently. Lundien was remanded to the custody of the Attorney General and was held in the District of Columbia jail, pending assignment to a federal penitentiary, at least until after the subsequent hearing at which his sentence was amended.

On July 9, 1984, the government filed a "Motion for Temporary Stay of Judgment and Commitment Order and for Clarification of Sentencing." The motion noted that the sentence originally pronounced by the district court at the hearing indicated the court's intention to impose a total term of twenty years, and that the ten-year sentence actually imposed might have represented an oversight. The motion suggested that if the court's intention was in fact to impose a total confinement of twenty years, the sentence on Count 2 should be increased to twenty years, running concurrently with the sentence on Count 1. On July 11, 1984, after hearing argument on the motion, the district court accepted the government's suggestion. The court stated:

At the time I sentenced Mr. Lundien last Friday, I made a mistake, and I want the record to be perfectly clear. I don't want to pass the buck to anyone else. At the time I sentenced him, I intended for him to serve 20 years. I sentenced him to 10 years on Count 1 and 10 years on Count 2, and while there was a plea agreement in the file, I did not read it before I came in and sentenced, and I was not aware that there had been an agreement for the sentences to run concurrently. It was not in the presentence report. But I should have made inquiry before I sentenced so that that would be clarified, and I didn't do it. But it was my intention for the Defendant Lundien to serve 20 years, and that was why I gave him 10 years on each count.

In order to now bring that into being, I resentence him, and sentence him to 10 years on Count 1 and 20 years on Count 2, and Count 2 is to run concurrently with Count 1.

Under our cases it is not entirely clear whether Lundien's five days of incarceration in the District of Columbia jail awaiting transfer to a federal penitentiary represents the kind of formal commencement of sentence that barred resentencing under our previous double jeopardy holdings. Neidinger v. United States, 647 F.2d 408, 410 & n. 1 (4th Cir.), cert. denied, 454 U.S. 859, 102 S.Ct. 311, 70 L.Ed.2d 155 (1981); see 18 U.S.C. Sec. 3568 (1982). We do not view this question as bearing on our decision however, because, even if he had commenced service of his sentence, it is our view that the Double Jeopardy Clause was not violated by the enhancement on resentencing.

The general rule has long been recognized that a trial court has the power to recall a defendant who had already been sentenced and to impose a sentence different from that originally imposed. Bassett v. United States, 76 U.S. (9 Wall.) 38, 19 L.Ed. 548 (1969); Ex parte Lange, 85 U.S. (18 Wall.) 163, 167, 21 L.Ed. 872 (1874); United States v. Benz, 282 U.S. 304, 306-07, 51 S.Ct. 113, 114, 75 L.Ed. 354 (1931); Cisson v. United States, 37 F.2d 330, 332 (4th Cir.1930); Acme Poultry Corp. v. United States, 146 F.2d 738, 739 (4th Cir.1944), cert. denied, 324 U.S. 860, 65 S.Ct. 865, 89 L.Ed. 1417 (1945); Williams v. United States, 422 F.2d 1318, 1318 (5th Cir.1970); United States v. Busic, 639 F.2d 940, 948 (3d Cir.), cert. denied, 452 U.S. 918, 101 S.Ct. 3055, 69 L.Ed.2d 422 (1981); Neidinger v. United States, 647 F.2d 408, 410 (4th Cir.), cert. denied, 454 U.S. 859, 102 S.Ct. 311, 70 L.Ed.2d 155 (1981). As we said in an earlier case:

The power of the judge to modify or set aside judgments during the term is an ancient one and founded upon the soundest reasons. Upon more mature consideration he may, and frequently does, decide that a sentence imposed during the term should be lightened or increased. He may learn additional facts about a case which show the original sentence to be entirely inadequate or unreasonably harsh; and, if the mere incorporation in the sentence of [a provision that the defendant enter immediately upon service of the sentence] is to deprive him of further power over the case, the greatest embarrassments in the administration of justice and the greatest hardships may result, for the judge would be powerless to reduce a sentence which he thought excessive, or grant a new trial to a prisoner shown to be innocent, even though such prisoner were in the courtroom and actually at the bar of the court. He would likewise be powerless to increase punishment, although it should develop that the sentence originally imposed was entirely inadequate.

Cisson, 37 F.2d at 332.

At the same time we have repeatedly stated that a "limitation upon this power is that the sentence may not be increased if a fine has been paid or if the defendant has entered upon the service of a term of imprisonment." Acme Poultry, 146 F.2d at 739; Neidinger, 647 F.2d at 410; Cisson, 37 F.2d at 332; see Benz, 282 U.S. at 307, 51 S.Ct. at 114. Although we have not had occasion to reverse a trial court's enhancement of sentence for having been ordered after commencement of service, we have recognized the rule in affirming the trial court's enhancement of sentence prior to commencement of service by the defendant. Neidinger, 647 F.2d at 410; Acme Poultry, 146 F.2d at 739. Despite occasional statements that the basis for this limitation is that commencement of service deprives the trial court of the power to resentence, Cisson, 37 F.2d at 332, the clearly established rule is that the limitation rests on the Double Jeopardy Clause. As the Supreme Court said in Benz:

The distinction that the court during the same term may amend a sentence so as to mitigate the punishment, but not so as to increase it, is not based upon the ground that the court has lost control of the judgment in the latter case, but upon the ground that to increase the penalty is to subject the defendant to double punishment for the same offense in violation of the 5th Amendment to the Constitution....

Benz, 282 U.S. at 307, 51 S.Ct. at 114; Acme Poultry, 146 F.2d at 739. Lundien bases his hopes for reversal on this rule, contending that the Double Jeopardy Clause precluded enhancement of his sentence.

Lundien's argument, however, suffers fatally from the Supreme Court's decision in United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980), which expressly disavows the rationale on which our former double jeopardy rule in this resentencing area was based. The seminal authority for the proposition that the Double Jeopardy Clause bars enhancement of the sentence after commencement of service is the Supreme Court's decision in Ex parte Lange, 85 U.S. (18 Wall.) 163, 21 L.Ed. 872 (1874). See Benz, 304 U.S. at 307, 51 S.Ct. at 114; United States v. Turner, 518 F.2d 14, 15 (7th Cir.1975); United States v. Adams, 362 F.2d 210, 211 (6th Cir.1966); Tatum v. United States, 310 F.2d 854, 855 (D.C.Cir.1962); Acme Poultry, 146 F.2d at 739; Wilson v. Bell, 137 F.2d 716, 720 (6th Cir.1943). These courts reasoned that the imposition of a sentence had the same effect as a jury verdict after trial and that the sentence imposed constituted a final judgment of acquittal as to any greater sentence. The conclusion followed that the substitution of a greater sentence violated the Double Jeopardy Clause as multiple punishment for the same offense. ...