U.S. v. Byerley, s. 94-1598

Citation46 F.3d 694
Decision Date03 February 1995
Docket NumberNos. 94-1598,94-2310,s. 94-1598
PartiesUNITED STATES of America, Plaintiff-Appellant, v. Joseph BYERLEY, Defendant-Appellee. In the Matter of UNITED STATES of America, Petitioner.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

David H. Miller, Asst. U.S. Atty. (argued), Tina Nommay, Asst. U.S. Atty., Fort Wayne, IN, for U.S.

Richard L. Rosenbaum (argued), Michael J. Entin, Fort Lauderdale, FL, for Joseph Byerley.

Before BRIGHT, * BAUER and COFFEY, Circuit Judges.

BAUER, Circuit Judge.

The United States seeks review of the district court's reduction of defendant Joseph Byerley's sentence from a term of 151 months' imprisonment to a term of sixty months' imprisonment. We affirm the reduction of Byerley's sentence and decline to issue a writ of mandamus.

I.

Byerley was convicted by a jury of one count of conspiracy to distribute cocaine in violation of 21 U.S.C. Sec. 846. The indictment charged that the length of the conspiracy was "from on or about March 1987 up to January 1990." The probation officer in Byerley's presentence investigation report recommended that the United States Sentencing Guidelines and a statutory minimum sentence of ten years' imprisonment applied to Byerley's conviction. Byerley objected to these recommendations. The following colloquy then occurred at Byerley's sentencing hearing on November 7, 1991:

MR. ENTIN [counsel for Byerley]: I would ask Your Honor to utilize a non-guideline sentence in this matter on behalf of Mr. Byerley and use discretion in using pre-guideline parole sentencing.

THE COURT: What's the Government's position on that point, Mr. Gevers?

MR. GEVERS [Assistant United States Attorney]: Your Honor, the Government contends that the guidelines are applicable and that Your Honor may, in fact, use those.

We would point out the conspiracy began in March of--

THE COURT: Mr. Entin has conceded that I may use them. Is it your position that I'm obliged to?

MR. GEVERS: No, Your Honor. It was at the Court's discretion.

THE COURT: I see. So you agree with Mr. Entin's position, it's discretionary with the Court?

MR. GEVERS: Yes.

Sentencing Hr'g Tr. at 25.

The district court found that Byerley's conspiracy offense began before and ended after November 1, 1987, the effective date of the Guidelines. 1 Id. at 66. The following discussion then ensued:

MR. ENTIN: My position is it would be up to your discretion to impose a mandatory [sic] or mandatory sentence. It would be an ex-post facto issue.

THE COURT: Probably the same authorities that control with the guideline effective date.

MR. GEVERS: The Government would concur with that, Your Honor.

THE COURT: All right. Now, I think I've resolved all of the issues that you've raised, Mr. Entin, except the first issue, which is whether or not the defendant should be sentenced under the guidelines legislation or not.

And apparently, the Government agrees that on that issue, because the events involved arose both before and after the effective date, that it's discretionary with the Court as to whether or not to apply the guideline statute or not, is that correct, Mr. Gevers?

MR. GEVERS: Yes, Your Honor.

Id. at 66-67. The district court determined that Byerley's applicable sentencing range for his conspiracy conviction under the Guidelines was between 151 and 188 months' imprisonment. Id. at 71. The district court then imposed a sentence of 151 months' imprisonment but made clear that "[t]his sentence is imposed pursuant to the sentencing laws as they existed prior to November 1, 1987, the effective date of the sentencing guideline legislation." Id. at 74. The district court further stated that it did not "intend that a mandatory ten-year sentence be imposed if the defendant would be eligible for parole prior to that time." Id. at 73. At no time during the sentencing hearing did AUSA Gevers object to the district court's failure to impose either a sentence under the Guidelines or a mandatory minimum sentence.

Byerley appealed to a panel of this court, which affirmed the conviction. United States v. Byerley, 999 F.2d 231, 237 (7th Cir.1993). The government did not file a cross-appeal. Our mandate was issued on August 4, 1993. On November 24, 1993, within 120 days after the issuance of the mandate, Byerley filed a motion to modify and reduce his sentence under the "old" version of Federal Rule of Criminal Procedure 35(b), which is applicable to offenses committed prior to November 1, 1987. 2 The government opposed the motion. On January 20, 1994, the government filed a motion to correct an illegal sentence or a sentence imposed in an illegal manner under the old version of Federal Rule of Criminal Procedure 35(a) on the grounds that Byerley's sentence was not imposed pursuant to the Guidelines and was not subject to the statutory minimum sentence. The district court denied the government's old Rule 35(a) motion, granted Byerley's old Rule 35(b) motion, and reduced Byerley's sentence from 151 months' to sixty months' imprisonment because Byerley had demonstrated good behavior since his incarceration.

The United States filed a timely notice of appeal seeking review of the district court's denial of its old Rule 35(a) motion and the district court's reduction of Byerley's sentence pursuant to old Rule 35(b). This appeal was assigned appellate docket number 94-1598. The United States also filed a petition for a writ of mandamus directing the district court to vacate its order reducing Byerley's sentence and to impose a sentence pursuant to the Guidelines and/or the statutory minimum sentence. The petition was assigned appellate docket number 94-2310 and was consolidated with the government's original appeal.

II.

The district court found, and the parties agree, that Byerley's conspiracy offense began before and ended after November 1, 1987, the effective date of the Guidelines, and therefore is a straddle conspiracy. Congress has specified that the Guidelines "shall apply only to offenses committed after" the November 1, 1987, effective date, Pub.L. No. 100-182, Sec. 2, 101 Stat. 1266 (1987), and we have interpreted this language as applicable to straddle conspiracies. United States v. Masters, 924 F.2d 1362, 1369 (7th Cir.), cert. denied, 500 U.S. 919, 111 S.Ct. 2019, 114 L.Ed.2d 105 (1991); United States v. McKenzie, 922 F.2d 1323, 1328 (7th Cir.), cert. denied, 502 U.S. 854, 112 S.Ct. 163, 116 L.Ed.2d 127 (1991); United States v. Fazio, 914 F.2d 950, 958-59 (7th Cir.1990). Section 3553(b) of title 18 requires a district court to impose a sentence within the applicable Guidelines range when the Guidelines apply to the offense of conviction, unless the district court finds that "an aggravating or mitigating circumstance" exists that was "not adequately taken into consideration" by the Guidelines. The district court made no such finding in this case. Before considering the district court's denial of the government's old Rule 35(a) motion, however, we must determine whether we have jurisdiction over this issue.

The United States " 'has no right of appeal in a criminal case, absent explicit statutory authority.' " United States v. DiFrancesco, 449 U.S. 117, 131, 101 S.Ct. 426, 434, 66 L.Ed.2d 328 (1980) (quoting United States v. Scott, 437 U.S. 82, 84-85, 98 S.Ct. 2187, 2190, 57 L.Ed.2d 65 (1978)). The government's right to appeal a non-Guidelines sentence imposed for a straddle conspiracy is an issue of first impression in this circuit. United States v. Corbitt, 13 F.3d 207, 211 (7th Cir.1993), held that a timely motion under old Rule 35(a) is the proper vehicle for the government to correct non-Guidelines sentences, even though the requested relief is resentencing under the Guidelines. 3 Corbitt did not address whether the government may appeal the denial of an old Rule 35(a) motion because the district court had granted its motion. Corbitt, 13 F.3d at 209. The government relies on three statutes that other circuits have held authorize the government to appeal non-Guidelines sentences, which we will address in turn.

The government contends that 18 U.S.C. Sec. 3731 4 and 28 U.S.C. Sec. 1291 5 provide it with statutory authority to appeal the district court's sentencing order. These arguments can be easily rejected. United States v. Spilotro, 884 F.2d 1003, 1005-06 (7th Cir.1989) held that neither 18 U.S.C. Sec. 3731 nor 28 U.S.C. Sec. 1291 provides the United States with statutory authority to appeal from a district court's reduction of a non-Guidelines sentence. See also United States v. Horak, 833 F.2d 1235, 1244-48 and 1247-48 n. 10 (7th Cir.1987) (holding that the United States has no authority under 18 U.S.C. Sec. 3731 or 28 U.S.C. Sec. 1291 to appeal from a district court's sentencing order denying forfeiture). Spilotro and Horak are controlling in this case, and the government has provided no justification for revisiting these decisions. We therefore reject these asserted bases of jurisdiction for the reasons stated in Spilotro and Horak.

The government also contends that it has statutory authority to appeal the district court's order pursuant to 18 U.S.C. Sec. 3742(b)(1), which provides that the government "may file a notice of appeal in the district court for review of an otherwise final sentence if the sentence was imposed in violation of law." 6 The government relies on United States v. Story, 891 F.2d 988, 991 (2d Cir.1989), which held that the government could directly appeal a non-Guidelines sentence imposed for a straddle conspiracy under 18 U.S.C. Sec. 3742(b)(1).

We agree with the Second Circuit's conclusion that an erroneous nonapplication of the Guidelines is a sentence imposed "in violation of law" within the meaning of 18 U.S.C. Sec. 3742(b)(1). Like the Guidelines themselves, 18 U.S.C. Sec. 3742 applies to offenses "committed after" November 1, 1987, Pub.L. No. 100-182, Sec. 2, 101 Stat. 1266 (1987), and we have held that this language applies to...

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