Castle v. United States

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Citation399 F.2d 642
Docket NumberNo. 24068.,24068.
PartiesGlen Dale CASTLE, Appellant, v. UNITED STATES of America, Appellee.
Decision Date12 August 1968

David Bolton, Dallas, Tex., for appellant.

Bill Callaway, Asst. U. S. Atty., Fort Worth, Tex., for appellee.

Before WISDOM, THORNBERRY and GOLDBERG, Circuit Judges.

THORNBERRY, Circuit Judge.

For the third time, Appellant Castle comes to this Court as a result of his 1960 conviction for transporting five forged American Express money orders in interstate commerce in violation of 18 U.S.C. § 2314. The indictment contained five counts, making each of the money orders constitute a separate offense. Castle was convicted on all five counts and sentenced to ten years' imprisonment on the first count and five years on counts two through five. Counts two through five were concurrent, but consecutive to count one, making a total of fifteen years' imprisonment. This Court affirmed the conviction, 287 F.2d 657, reasoning that the transportation of each money order was a separate offense and that therefore the trial judge had not imposed a multiple sentence for a single transportation. The Supreme Court disagreed and held that Castle was guilty of only one offense. Our judgment was vacated and the case remanded to the district court "for resentencing in accordance with this opinion." 368 U.S. 13, 82 S.Ct. 123, 7 L.Ed.2d 75. On remand, appellant was resentenced to ten years' imprisonment and fined $10,000.1 He again appealed to this Court but we affirmed the conviction, reasoning that the trial judge correctly limited the proceedings to resentencing and that "the sentence was in accordance with the mandate of the Supreme Court and the applicable provisions of law." 304 F.2d 871.

On April 5, 1965, pursuant to 28 U.S.C. § 2255, Castle filed a motion to vacate his conviction. The district court denied the motion and this Court subsequently denied leave to appeal in forma pauperis. He thereafter secured counsel to represent him on this appeal. His present status necessitates consideration of whether Section 2255 is available to him. Appellant has served the required period of imprisonment to obtain mandatory release under his ten-year sentence. He has also served the thirty days required for nonpayment of the committed fine, signed the pauper's affidavit required by 18 U.S.C. § 3569, and been released from prison.2 As he is no longer "in custody," it is urged that he cannot use Section 2255 to attack the sentence or fine. See Fooshee v. United States, 5 Cir. 1953, 203 F.2d 247. However, since he was in custody at the time he filed the present application, federal jurisdiction is not defeated by his release prior to completion of proceedings on such application. Carafas v. LaVallee, 1968, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554. Moreover, his motion presents a real and substantial controversy, and could be treated as a motion for declaratory judgment under Rule 57, Fed.R.Civ.P. Wacker v. Bisson, 5th Cir. 1965, 348 F.2d 602.3

Appellant alleges two grounds of error for our consideration: First, that the imposition of the $10,000 fine on resentencing was an increase in his original sentence and therefore a violation of the double-jeopardy clause of the fifth amendment and an impairment of his right to appeal in contravention of the due-process clause of the fifth amendment; second, that fining an indigent violates the due-process clause of the fifth amendment and the equal-protection clause of the fourteenth amendment as implemented by the due-process clause of the fifth amendment.4


The question of whether a trial judge can increase a sentence on remand is currently being debated in criminal-law circles and demands resolution of a head-on clash of equally viable positions. See e. g. Agata, Time Served Under a Reversed Sentence or Conviction: A Proposal and a Basis for Decision, 25 Mont.L.Rev. 3 (1963); Alstyne, In Gideon's Wake: Harsher Penalties and the "Successful" Criminal Appellant, 76 Yale L.J. 603 (1965); Whalen, Resentence Without Credit for Time Served: Unequal Protection of the Laws, 35 Minn.L.Rev. 239 (1951). Until recently it was believed that the trial judge could increase the sentence if he stayed within the statutory limits.5 Indeed, this belief is supported by the only Supreme Court decisions on the subject. Stroud v. United States, 1919, 251 U.S. 15, 40 S. Ct. 50, 64 L.Ed. 103; Murphy v. Commonwealth of Mass., 1900, 177 U.S. 155, 20 S.Ct. 639, 44 L.Ed. 711. These decisions are based primarily on the rationale that by appealing the defendant voids all existence and effect of the original sentence and waives any double-jeopardy claim. Subsequent developments have indicated that the Stroud rule is also bottomed on the traditional discretion accorded trial judges in sentencing and the accompanying hesitancy of appellate courts to enter the sentencing area. See, United States ex rel. Starner v. Russell, 3 Cir. 1967, 378 F.2d 808; Shear v. Boles, N.D.West Va.1967, 263 F.Supp. 855. Much of this reluctance is based on the fact that the modern sentence is viewed as an individualized assessment of the ideal number of years needed to punish or rehabilitate the prisoner. Note, 80 Harv.L.Rev. 891, 894 (1967). This gives society an interest in fair punishment and effective rehabilitation, Rubin, The Law of Criminal Correction, 116-118 (1963), and makes it just to take a fresh look at the defendant on remand to assure that this interest was sufficiently vindicated the first time around. Recently, however, appellate courts have begun to restrict trial judges who in the name of discretion are violating constitutional rights. Gainey v. Turner, E.D.N.C.1967, 266 F. Supp. 95, 102.6

In the increase-of-sentence area, the erosion of the absolute discretion of the trial judge started with the rejection of the "waiver theory" as a "simplistic rationale" and "sporting theory of justice." See Whalen, supra, at 893. The most exhaustive treatment of the topic to date is the Fourth Circuit's recent decision in Patton v. State of North Carolina, 4th Cir. 1967, 381 F.2d 636, cert. denied, 1968, 390 U.S. 905, 88 S.Ct. 818, 19 L.Ed.2d 871.7 There the defendant was denied five years' credit as a result of employing a post-conviction remedy to rectify the fact that he was tried in violation of Gideon. The court had three reasons for invalidating the increase: It constituted double punishment for the same offense as condemned by the fifth amendment; it constituted a denial of due process since defendant was required to waive his right to a fair trial or his plea of former jeopardy as a price of exercising his post-conviction remedy; and it violated the equal-protection clause of the fourteenth amendment because the threat of harsher punishment fell solely on those who sought correction of their sentences by post-conviction remedy, thus creating an irrational basis for selection of the class on which the burden fell and an irrational means of effectuating any valid state policy8. For these reasons the first sentence had to be a ceiling for punishment on remand. In Patton and the decisions which agree with its reasoning, the increase in the sentence is apparent;9 however, the peculiar facts of the instant case make the increase less than palpable.

Appellant's insistence that his sentence has been increased is based on his interpretation of the Supreme Court's decision to remand the case "for resentencing in accordance with this opinion" because appellant was guilty of but one offense. 368 U.S. 13, 82 S.Ct. 123, 7 L. Ed.2d 75. He asserted that the Supreme Court meant by this holding that there could be no cumulation of punishment. This conclusion leads to his second assertion that since the Court did not declare the ten-year sentence on count one invalid or illegal in any way, it thereby affirmed the sentence on that count and eliminated the sentence on the other four counts. Accordingly, when the district court resentenced appellant, the ten-year sentence on count one was the maximum that could be imposed. This construction is specious.

The issue before the Supreme Court was whether the five money orders constituted five separate offenses, and the Supreme Court held that they did not. The fact that Castle could not be imprisoned for fifteen years is not, however, authority for the proposition that he could not on remand be sentenced to the maximum punishment for one offense. Hence, we believe that all the Court's decision imports is that on remand appellant could not receive a sentence greater than that which could be imposed as to a single offense under the statute. None of the individual counts charging separate offenses in the indictment had an independent validity restricting the trial court on remand. In effect, appellant was to be resentenced for the commission of a single offense embodying all five money orders. For this reason, he cannot justifiably interpret the mandate as voiding counts two through five and affirming count one. The Court simply said that the sentence was excessive and illegal because appellant's conduct did not constitute five offenses but only one; it could not have affirmed count one since that count charged Castle with transportation of only one money order when, in fact, he transported five. Consideration of decisions that restrict the trial court's discretion support our conclusion.

In Ekberg v. United States, 1st Cir. 1948, 167 F.2d 380, the accused had been sentenced to two years and one month on count one and two years and one month on counts two and three, counts two and three to run concurrently but consecutively to count one, making an aggregate of four years and two months. On appeal, count one was held invalid because it failed to charge an offense, but the court affirmed the judgments on counts two and three. Since the appellant had already served two years and one month on count one, the question arose whether he could be...

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