Caille v. United States, 73-2614.
Decision Date | 26 November 1973 |
Docket Number | No. 73-2614.,73-2614. |
Citation | 487 F.2d 614 |
Parties | David Richard CAILLE, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. |
Court | U.S. Court of Appeals — Fifth Circuit |
David Richard Caille, pro se.
William S. Sessions, U.S. Atty., San Antonio, Tex., Ralph E. Harris, Asst. U.S. Atty., El Paso, Tex., for respondent-appellee.
Before JOHN R. BROWN, Chief Judge, and DYER and SIMPSON, Circuit Judges.
David Richard Caille appeals from an order of the district court, denying his motion attacking his sentence, filed pursuant to 28 U.S.C.A. § 2255.1 We vacate the judgment below and remand the cause for further proceedings.
Appellant, represented by counsel, was convicted upon his plea of guilty of possessing, with intent to distribute, approximately two pounds of marihuana in violation of 21 U.S.C.A. § 841(a)(1). He was sentenced on December 6, 1972, to a prison term of three years and fined $3000.00. There was no direct appeal.
Thereafter, the appellant petitioned the court below for a reduction of sentence in accordance with Rule 35, Federal Rules of Criminal Procedure. The district court denied the motion on January 29, 1973, but also added a special parole term of three years to the sentence, which is the minimum required by 21 U.S.C.A. § 841(b).
The appellant, in the present proceedings, attacks the enhancement of his sentence on grounds that he was not present in the court for this addition to it. He further contends that it was an error to sentence him twice for the same conviction. The court below denied relief, holding that the motion attacking the sentence had no merit, but stating no written reasons for the ruling.
Appellant is not entitled to relief on grounds that he was "sentenced twice." When the district court became aware that the mandatory special parole term provided by 21 U.S.C.A. § 841(b)(1) (A)2 had not been imposed, it had a duty to comply with the statute. Bozza v. United States, 1947, 330 U.S. 160, 67 S.Ct. 645, 91 L.Ed. 818; United States v. Thomas, 2 Cir.1973, 474 F.2d 1336, affirming, United States v. Thomas, E.D.N.Y.1972, 356 F.Supp. 173; Orrie v. United States, 8 Cir.1962, 302 F.2d 695.
In the Bozza case, the prisoner had been convicted of offenses which carried mandatory sentences of fines as well as imprisonment, but the court had sentenced him only to terms of imprisonment. Some five hours later the court recalled Bozza and imposed the minimum mandatory fines, as well as terms of imprisonment within the limits provided by statute. On appeal, Bozza contended that the district court had no power to increase his sentence once he had begun to serve it, he having been removed after the first sentencing to a jail for transportation to the place where the sentence was to be served. The Supreme Court upheld the resentencing of Bozza on the conviction under the one count of the indictment which it affirmed. The Court stated its reasoning as follows:
(Footnotes omitted.) 330 U.S. at 166, 167, 67 S.Ct. at 648, 649, 91 L.Ed. at 821, 822.
In Orrie v. United States, 8 Cir.1962, 302 F.2d 695, the prisoner had been sentenced to serve two years on an offense which carried a five-year mandatory minimum term. Three days later, the court had Orrie returned before it and resentenced him to serve five years. The district court's denial of his motion to vacate the sentence was affirmed on appeal. The appellate court held that since the sentence first imposed was illegal, Rule 35, F.R.Crim.P. authorized the trial court to correct it at any time.
In a case similar on its facts to the case sub judice, the Second Circuit recently affirmed without opinion, the district court's denial of Rule 35 relief. United States v. Thomas, 2 Cir.1973, 474 F.2d 1336, affirming, United States v. Thomas, E.D.N.Y.1972, 356 F.Supp. 173. In the Thomas case, the district court upheld its subsequent addition of a three-year special parole term to a sentence of imprisonment which had been imposed some months earlier.
The New York district court reasoned that "Since...
To continue reading
Request your trial-
U.S. v. Denson
...Cir. 1973), Affirming, 365 F.Supp. 173, 174 (E.D.N.Y.1972); Llerena v. United States, 508 F.2d 78 (5th Cir. 1975); Caille v. United States, 487 F.2d 614 (5th Cir. 1973); Orrie v. United States, 302 F.2d 695, 697 (8th Cir. 1962). See generally United States v. Scott, 437 U.S. 82, 98 S.Ct. 21......
-
U.S. v. Villano, 85-2535
...of a special parole term is statutorily demanded, the defendant's presence at resentencing is not useless. See Caille v. United States, 487 F.2d 614, 616 (5th Cir.1973). Imposition of a special parole term is not "merely a ministerial act. If the district court had been aware at the time of......
-
Breest v. Helgemoe
...United States, 492 F.2d 395, 397-98 (10th Cir.), Cert. denied, 419 U.S. 897, 95 S.Ct. 178, 42 L.Ed.2d 142 (1974); Caille v. United States, 487 F.2d 614, 616 (5th Cir. 1973); United States v. Thomas, 474 F.2d 1336 (2d Cir. 1973), Aff'g 356 F.Supp. 173, 174 (E.D.N.Y.1972). In applying the law......
-
U.S. v. Denson
...1947, 330 U.S. 160, 166-67, 67 S.Ct. 645, 648-49, 91 L.Ed. 818; Llerena v. United States, 5 Cir. 1975, 508 F.2d 78; Caille v. United States, 5 Cir. 1973, 487 F.2d 614, 615; United States v. Thomas, E.D.N.Y.1972, 356 F.Supp. 173, 174, Aff'd, 2 Cir. 1973, 474 F.2d While the sentencing judge h......