Barnes v. United States, 21581-21584.

• Decision Date: 24 October 1969
• Docket Number: No. 21581-21584.,21581-21584.
• Citation: 419 F.2d 753,136 US App. DC 171
• Parties: Robert E. BARNES, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

136 US App. DC 171, 419 F.2d 753 (1969)

Robert E. BARNES, Appellant, v. UNITED STATES of America, Appellee.

Nos. 21581-21584.

United States Court of Appeals District of Columbia Circuit.

Argued January 23, 1969.

Decided October 24, 1969.

Petition for Rehearing Denied January 30, 1970.

Mr. Hugh A. M. Shafer, Jr., Washington, D. C. (appointed by this court), for appellant.

Mr. Clarence A. Jacobson, Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty. at the time the brief was filed, Frank Q. Nebeker, Asst. U. S. Atty. at the time the brief was filed, and Harold J. Sullivan, Asst. U. S. Atty., were on the brief, for appellee.

Before FAHY, Senior Circuit Judge, and WRIGHT^* and TAMM, Circuit Judges.

PER CURIAM:

Appellant Barnes is presently incarcerated in a Maryland penitentiary serving a state sentence. In early 1965, Barnes was convicted on a federal indictment, Cr. No. 869-64, of housebreaking, grand larceny and assault. The sentencing judge imposed a sentence of five to 15 years to run concurrently with the Maryland sentence. This court reversed that conviction on grounds not relevant to the present appeal and remanded for a new trial.¹ On remand, appellant pleaded guilty to all charges in Cr. No. 869-64; at the same time he also entered guilty pleas to three other separate federal indictments. This time the District Court imposed sentences of five to 15 years on each of the four indictments (including Cr. No. 869-64) — the four sentences to run concurrently with each other, but consecutive to the Maryland jail term.

On this appeal, appellant challenges the constitutionality of the increased severity of the sentence imposed on Cr. No. 869-64 following his guilty plea on remand since the sentence now is consecutive to the state sentence instead of running concurrently with it.² We delayed decision of this appeal pending the Supreme Court's decisions in North Carolina v. Pearce³ and Simpson v. Rice.⁴

In Pearce and Rice the Court held that when a criminal conviction is set aside on appeal and a new trial ordered, a harsher sentence may not be imposed upon conviction on retrial unless the increased severity is justified on the basis of "identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding."⁵ In this case, there was no such showing; in fact, appellant cooperated fully with the Government in breaking up a large burglary ring. Thus the change of the sentence on Cr. No. 869-64 from concurrent to consecutive was error in violation of the due process clause, and that sentence must be revised.

Revision, however, presents problems. This court could simply order that the improperly increased federal sentence under Cr. No. 869-64 run concurrently with the state sentence. But for several reasons such action may delay the start of the three valid consecutive federal sentences imposed at the same time, thereby increasing those sentences.⁶ First, although we are not in a position to make a definitive judgment on this point, we might prejudice appellant's chance for a Maryland parole if we now order the federal sentence in Cr. No. 869-64 to run concurrently with the Maryland sentence. Second, since state and federal parole decisions are made independently, if appellant were paroled from his Maryland sentence, there is no guarantee that federal authorities would also parole him from the 869-64 sentence. Under these circumstances, appellant might have to serve the time remaining on that sentence before the three consecutive federal sentences began to run. Finally, the record before us is unclear as to the length of the Maryland sentence and the date appellant began serving it. If, for any reason, the concurrent federal sentence in Cr. No. 869-64 expires later than the Maryland sentence, again the start of the three consecutive federal sentences may be delayed.

We are, of course, bound by the rule that a valid sentence once imposed and being served cannot be increased.⁷ The three federal sentences other than the one based on Cr. No. 869-64 remain valid and are not affected by this appeal. Since the sentence to which they are "anchored" — the Maryland jail term — has begun to be served by appellant, the three valid consecutive federal sentences may not be increased. See Owensby v. United States, 10 Cir., 385 F.2d 58 (1967).⁸ We therefore conclude that this case cannot be brought into harmony with Pearce simply by changing the sentence in Cr. No. 869-64 from one that is consecutive to the Maryland sentence to one that runs concurrently with it.

Under the circumstances, we believe that the appropriate disposition is to remand this case to the sentencing judge for resentencing in light of the relevant constitutional principles herein discussed.

Remanded for proceedings consistent with this opinion.

FAHY, Senior Circuit Judge (concurring in part, dissenting in part):

I concur in affirmance of the judgments of conviction in all four cases on appeal.¹ Each judgment was entered on a plea of guilty, and I find no basis upon which to invalidate either the pleas or the judgments of conviction entered thereon.

My disagreement is with the court's decision that the three federal sentences other than the one imposed in No. 869-64 remain valid as consecutive to the Maryland sentence,² notwithstanding its holding that such consecutiveness is not now possible in No. 869-64, with which the other sentences were to be concurrent.

Appellant originally was convicted and sentenced in No. 869-64 in February 1965 to five to fifteen years, to run concurrently with a Maryland term of imprisonment which the judge had been advised was for seventeen years. We reversed in No. 869-64 on May 27, 1966. Barnes v. United States, 124 U.S.App. D.C. 318, 365 F.2d 509. On December 16, 1966, Barnes was resentenced by a different judge on his pleas of guilty in that case and in the other three cases now on appeal. Before sentencing, the judge was advised by the Office of the United States Attorney that Barnes had begun to cooperate with the Government and with grand juries in the District of Columbia and Maryland. It was revealed that Barnes' assistance resulted in various police investigations, in the return of numerous indictments, in the initiation of others, and in the recovery of some $70,000 of stolen property. Bearing in mind these circumstances, the judge imposed an aggregate term of imprisonment in the four cases of five to fifteen years, stating:

The Court will give you credit for entering your pleas of guilty and also for your cooperation with the Government. * * *

These four sentences of five to fifteen years each to run concurrently with each other will run consecutive to the sentence imposed in the State of Maryland.

I agree with the court that under the decision of the Supreme Court in Pearce and Rice the sentence in No. 869-64 could not thus be increased by being made consecutive to the Maryland sentence because such an enlargement, following the reversal of an earlier conviction, would amount to a penalty upon Barnes for having appealed. The court also holds, however, that the other three federal sentences remain valid as consecutive to the Maryland sentence. Yet it does not simply direct that the sentence in No. 869-64 revert to its original concurrent status, for fear that such a revision might delay the effectiveness, and thus invalidly enlarge, the other three sentences. Instead, the court remands for resentencing.³

The difficulties expressed by the court in its remand of No. 869-64 for resentencing are the product of its holding that the other three sentences continue to be valid as consecutive to the Maryland sentence. I experience no such difficulties as it is my opinion that all four federal sentences should remain concurrent with one another.

The Supreme Court declared in Pearce and Rice that,

In order to assure the absence of a vindictive motivation, we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear.

North Carolina v. Pearce, 395 U.S. 711, 726, 89 S.Ct. 2072, 2081, 23 L.Ed.2d 656. The record on these appeals fails to reveal any objective information concerning the conduct of the appellant occurring after the original sentencing which would justify an enlargement of that sentence. Accordingly that sentence must revert to its original status as concurrent...