Kennedy v. United States

• Decision Date: 01 April 1964
• Docket Number: No. 18927.,18927.
• Citation: 330 F.2d 26
• Parties: Robert Eugene KENNEDY, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

330 F.2d 26 (1964)

Robert Eugene KENNEDY, Appellant, v. UNITED STATES of America, Appellee.

No. 18927.

United States Court of Appeals Ninth Circuit.

April 1, 1964.

Richard H. Muller, Portland, Or., for appellant.

Sidney I. Lezak, U. S. Atty., and Jack G. Collins, Asst. U. S. Atty., Portland, Or., for appellee.

Before JERTBERG, MERRILL and KOELSCH, Circuit Judges.

JERTBERG, Circuit Judge:

Before us is an appeal from a denial of a motion made by the appellant to the court below "to Vacate and/or Set aside sentence, Title 28, Sec. 2255, U.S.C." The District Court treated the motion as one made pursuant to Rule 35, Federal Rules of Criminal Procedure, to correct an illegal sentence.

On September 13, 1962 appellant entered a plea of guilty to a two-count Oregon indictment charging him with forging and uttering a Postal money order in violation of 18 U.S.C. § 500. He was committed to the custody of the United States Attorney General for observation and study pursuant to 18 U.S. C. § 5010(e). During January of 1963, with appellant's consent, five cases pending against him in other judicial districts were transferred to Oregon under Rule 20, Federal Rules of Criminal Procedure. There were two cases from the District of Nebraska, one charging him with uttering a forged money order and the other charging him with breaking and entering a Post Office with intent to commit larceny, in violation of 18 U.S.C. § 2115. Two more cases charging violation of 18 U.S.C. § 2115 were transferred from the Districts of Oklahoma and Colorado; and one case charging violation of the Dyer Act was transferred from the District of Missouri.

On February 13, 1963, on appellant's plea of guilty, judgments of conviction were entered in all Rule 20 cases, and on that day he was sentenced on all of these as well as the Oregon case. The sentence was for five years imprisonment on the Dyer Act count and on each of the forgery counts, and ten years on each of the breaking and entering counts, all sentences to run concurrently and not consecutively, — a total term of ten years.

After serving two months on each of the six separate sentences, appellant called the sentencing court's attention to the fact that the maximum penalty for breaking and entering a Post Office with intent to commit larceny was five years rather than ten years, as provided in 18 U.S.C. § 2115. Thereupon the District Court ordered the appearance of appellant for correction of sentence. On April 10, 1963 the court entered its order vacating and setting aside the sentences imposed in the breaking and entering cases and imposed new sentences of five years on each of these counts. The court ordered that one of the new five year sentences was to run concurrently with the undisturbed sentences under the Dyer Act count and forgery counts; and that two of the new sentences were to run consecutively to the others. The court directed that credit of two months be allowed the appellant, and that the timing of the new sentences be deemed to have commenced on the date of original sentencing. The court stated when the original sentences were imposed he intended to sentence petitioner to a total term of ten years, regardless of whether the counts carried a maximum term of ten years or only five years.

In June of 1963 appellant filed his motion to vacate the two sentences which were to run consecutively to the others. The court treated the motion as having been made under Rule 35 of the Federal Rules of Criminal Procedure, but denied relief. The parties agree that the motion was properly treated as a Rule 35 motion under the authority of Duggins v. United States, 240 F.2d 479 (6th Cir., 1957).

The District Court was of the view that the excessive sentences were absolutely void and that at the time of resentencing appellant stood before the court as for the first time. Viewing appellant's status in such manner, the court held that "the resentencing of Kennedy did not involve double punishment or more severe punishment. It merely made the original sentence effective by correcting its form."

This Circuit has not had occasion to pass upon the question presented in the posture presented by this appeal.

The initial sentences imposed for the breaking and entering counts were not absolutely void but were void only as to the illegal or excessive portions thereof. Ex parte Lange, 18 Wall. 163, 85 U.S. 163, 21 L.Ed. 872 (1874); In re Bonner, 151 U.S. 242, 258, 14 S.Ct. 323, 38 L.Ed. 149 (1893); United States v. Pridgeon, 153 U.S. 48, 62, 14 S.Ct. 746, 38 L.Ed. 631 (1893); Demaurez v. Squier, 121 F.2d 960 (9th Cir. 1941); Crowe v. United States, 200 F.2d 526 (6th Cir. 1952); Duggins, supra. Five year terms and their concurrent running were the lawful portions of the initial sentences; only the excess of five years in each sentence was illegal. In this situation, the excessive sentences are to be corrected, not by absolute discharge of the prisoner, but by an appropriate amendment of the invalid sentence by the court of original jurisdiction. Bozza v. United States, 330 U.S. 160, 67 S.Ct. 645, 91 L.Ed. 818 (1947). But the court may not increase or make more severe the valid portions of the sentences originally imposed where the prisoner has fully suffered one of the alternative punishments to which alone the law subjected him, Ex parte Lange, supra, or where, as here, service of the legal portions of the sentences has commenced. United States v. Benz, 282 U.S. 304, 51 S.Ct. 113, 75 L.Ed. 354 (1930); Wilson v. Bell, 137 F.2d 716 (6th Cir. 1943); Crowe v. United States, supra; United States v. Chiarella, 214 F.2d 838 (2d Cir. 1954); Tatum v. United States, 114 U.S. App.D.C. 49, 310 F.2d 854 (1962).

Since the concurrent running of the sentences first imposed was a valid portion of those sentences, the change thereof to consecutive running clearly increased petitioner's punishment. United States v. Crowe, supra; United States v. Chiarella, supra; Duggins v. United States, supra.

It is appellee's contention that: "The District Court's intention to impose a term of imprisonment of ten years should not be avoided through a mistake in the form of the sentence." Appellee derives this proposition from language employed in cases to refute the suggestion that an imperfect sentence requires the absolute discharge of a prisoner. Bozza v. United States, supra; In re Bonner, supra. On the other hand, appellee's contention has been rejected in cases more pertinent.

In Miller v. United States, 147 F.2d 372 (2d Cir. 1945), the prisoner was convicted on each of two counts which, it was held, constituted but one offense. The sentences had been ordered to run consecutively. The government argued that although one of the sentences was invalid, the statutory maximum was such that the court could have imposed the same total term of years upon the valid count, and that a resentencing should be permitted to accomplish this result. The court held, 147 F.2d at 374:

"In this situation, it is quite plain that because the court could have imposed on one count a sentence equal to the consecutive sentences he imposed on the two, the matter may not be treated as though he had done so."

The converse of that case was presented in Ekberg v. United States, 167 F.2d 380 (1st Cir. 1948), where one count of an indictment was held to have been insufficient to charge an offense, and that a sentence thereunder was illegal. It was held, on authority of the Miller case, 167 F.2d at 388:

"But it is quite plain that merely because the trial judge could have imposed consecutive sentences on counts 2 and 3 equal to the aggregate sentences which he actually imposed in invalid count 1 and valid counts 2 and 3, `the matter may not be treated as though he had done so.\' citing Miller. The concurrent sentences on counts 2 and 3 were valid as originally imposed. * * * It would trench upon the double jeopardy clause if appellant were now faced with the possibility of an increase of the sentences imposed upon counts 2 and 3. Citing Ex parte Lange and other cases."

Finally, in Duggins v. United States, supra, a case in the same posture and involving the same situation as the instant one, the court held:

"The fact that the District Judge could have imposed consecutive sentences with a resulting total equaling the illegal sentence of ten years which was given, does not permit the matter to be treated as though he had done so. Ekberg v. United States, 1 Cir., 167 F.2d 380, 388, Miller v. United States, 2 Cir., 147 F.2d 372, 374."

In denying appellant's motion to correct sentence, the District Court relied upon Kitt v....