Chandler v. United States, 72-1702 Summary Calendar.
Decision Date | 26 October 1972 |
Docket Number | No. 72-1702 Summary Calendar.,72-1702 Summary Calendar. |
Citation | 468 F.2d 834 |
Parties | Joy M. CHANDLER, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. |
Court | U.S. Court of Appeals — Fifth Circuit |
Pat E. Dwyer, Alice L. Dwyer, El Paso, Tex., for petitioner-appellant.
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, GOLDBERG and MORGAN, Circuit Judges.
In this case we must determine the legality of the action of a district judge, who, when faced with petitioner's motion to reduce or vacate a clearly excessive sentence on one count of a multicount conviction, reduced the sentence on the one count and then raised an otherwise proper and unchallenged sentence on the second count. Finding the trial court's action wholly incompatible with the double jeopardy clause of the Fifth Amendment, we reverse.
Petitioner was convicted in the Federal District Court for the Western District of Texas on a two count indictment for violating 26 U.S.C.A. § 7206(1), willfully subscribing a fraudulent tax return (count one); and 26 U.S.C.A. § 7201, willfully evading federal income tax for the year 1964 (count two). On March 27, 1971, petitioner was sentenced to five years imprisonment on count one and three years imprisonment on count two, the sentences to be served concurrently. The maximum statutory penalty for violation of § 7206(1) is three years and for § 7201 is five years.
On December 28, 1971, petitioner, in custody at the Women's Federal Penitentiary in Alderson, West Virginia, filed a motion pursuant to 28 U.S.C.A. § 2255 to vacate or set aside the illegally excessive sentence imposed for count one. The trial court responded to this motion on March 22, 1972 by reducing the sentence for count one to three years but at the same time increasing the sentence for count two to five years. In its order vacating and correcting the sentence, the district court made the following explanation:
Petitioner appeals from that order claiming that the imposition of a greater sentence on count two violates her right against double jeopardy, guaranteed by the Fifth Amendment of the U. S. Constitution.
The double jeopardy provision of the Constitution is designed to protect an individual from being retried for the same criminal acts. It is well established that this safeguard is not limited to the retrial of the question of guilt, but also protects against resentencing for the same offense. "For of what avail is the constitutional protection against more than one trial if there can be any number of sentences pronounced on the same verdict." Ex Parte Lange, 1873, 18 Wall. 163, 173, 85 U.S. 163, 21 L.Ed. 872. See Schultz v. United States, 5 Cir. 1967, 384 F.2d 374, 375; Sullens v. United States, 5 Cir. 1969, 409 F.2d 545, 547; United States v. Welty, 3 Cir. 1970, 426 F.2d 615, 618. While it is true that on a retrial, after a successful appeal at defendant's behest, imposition of a greater sentence is sometimes permissible, e. g., North Carolina v. Pearce, 1969, 395 U.S. 711, 89 S.Ct. 2072, 23 L. Ed.2d 656, that can only occur where the defendant himself moved to vacate the original sentence or conviction and thereby waived any double jeopardy claim. Here, petitioner only challenged the sentence on count one. The three year sentence on count two was within the statutory maximum and was unchallenged by petitioner. The upward modification of that sentence was undertaken sua sponte by the district court.
Even assuming the above statement of the facts and law, the Government argues that an exception should be recognized in cases such as this where the alteration of the sentence was undertaken solely to conform to the original intention of the trial judge and the error in the original sentence was due solely to an inadvertent transposition of the numbers. Were we clairvoyant and able to say for certain in every case what the trial judge really "intended," this argument might be persuasive. Being mere mortals however, we must refrain from such delicate undertakings, and we refuse to sanction a procedure that encourages such an inquiry. The Third Circuit, reversing a sentence modification based on the district court judge's attempt to effectuate his original intent, made the following observations to which we fully subscribe:
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