U.S. v. Cataldo

Citation832 F.2d 869
Decision Date09 November 1987
Docket NumberNo. 86-3826,86-3826
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Michael CATALDO, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Edward J. Castaing, Jr., New Orleans, La. (Court-appointed), for defendant-appellant.

Howat A. Peters, Jr., Asst. U.S. Atty., John P. Volz, U.S. Atty., Peter G. Strasser, Asst. U.S. Atty., Dept. of Justice, New Orleans, La., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before THORNBERRY, GARWOOD and HIGGINBOTHAM, Circuit Judges.

GARWOOD, Circuit Judge:

Appellant Michael Cataldo (Cataldo) was convicted on three counts for bank robbery-related crimes. He brought a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. Sec. 2255, arguing that his ten-year consecutive sentences under two of the counts violated the double jeopardy clause and that the proper remedy under United States v. Henry, 709 F.2d 298 (5th Cir.1983) (en banc), was to vacate the sentence on one of the two counts and allow the other to stand. The district court granted his motion but found Henry not controlling and vacated the sentences on both counts. The court then allowed the government to elect the count under which Cataldo would be resentenced and imposed a twenty-year sentence under that count. Cataldo appeals, arguing error in the failure to apply Henry and that the twenty-year sentence was vindictive under North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). We affirm.

Facts and Proceedings Below

Cataldo was tried before a jury on a three-count superseding indictment charging what was essentially a single course of conduct as violations of (1) the Federal Bank Robbery Act, 18 U.S.C. Sec. 2113(a), (d); 1 (2) the Hobbs Act, 18 U.S.C. Sec. 1951; 2 and (3) conspiracy to violate the Hobbs Act. 3 On the substantive counts, Cataldo was also charged under 18 U.S.C. Sec. 2, which makes an aider and abettor derivatively a principal. 4 The evidence at trial established that Cataldo and his brother, Paul, took a bank official, his wife, and their child hostage at gunpoint, held them overnight, and in the morning forced the bank official to procure over $400,000 from the bank. The jury found Cataldo guilty on all three counts. The district court sentenced him to consecutive ten-year imprisonment terms on the substantive counts and a concurrent ten-year term on the conspiracy count (no fine or special assessment was imposed).

Cataldo moved for postconviction relief under section 2255, arguing that his convictions and sentencing under both section 2113 (Federal Bank Robbery Act) and section 1951 (Hobbs Act) constituted double jeopardy. Cataldo argued that United States v. Henry, 709 F.2d 298 (5th Cir.1983) (en banc), established that the proper remedy was to vacate his section 1951 sentence but not his section 2113 sentence. The district court agreed with Cataldo's double jeopardy claim but not his remedial arguments. The district court found that although Cataldo had waived his double jeopardy defense to conviction by not raising the issue at trial, he could still challenge his sentences on double jeopardy grounds. The district court concluded that because the same acts (bank extortion) constituted the basis for conviction under sections 2113 and 1951, sentencing Cataldo under both statutes was a violation of double jeopardy. The district court vacated Cataldo's section 2113 and section 1951 sentences, the government elected to have Cataldo resentenced under section 1951 (Hobbs Act), and the court then resentenced him thereunder to twenty years imprisonment. 5 The court explained at Cataldo's resentencing "I believe as a matter of law that I have not increased Mr. Cataldo's sentence, and it is my intention not to increase his sentence but to impose upon him the same sentence which was imposed upon him after his conviction, which I later set aside because I felt that taking the sentence on the two counts together constituted an illegal sentence. So it is not my intention to be vindictive. It is not my intention to punish Mr. Cataldo anymore than he has already been punished. It is my clear intention to sentence him to twenty years, which was my original sentence."

Subsequently, Cataldo filed this appeal seeking to have his new twenty-year section 1951 sentence vacated and the original ten-year sentence reinstated.

Discussion

Our analysis begins with United States v. Henry, 709 F.2d 298 (5th Cir.1983) (en banc). For his involvement in a shoot-out with state and federal law enforcement officers, Henry was convicted and sentenced to serve five years under 18 U.S.C. Sec. 371, seven years concurrent under 18 U.S.C. Sec. 111, and five years consecutive to the first two sentences under 18 U.S.C. Sec. 924(c). Sections 111 and 924(c) both allow for enhanced penalties for assaulting a federal officer with a firearm. We subsequently ruled that a defendant may not be sentenced under both section 924(c) and section 111, and that a district court could choose to vacate either sentence. United States v. Shillingford, 586 F.2d 372, 376 & n. 7 (5th Cir.1978) (applying Simpson v. United States, 435 U.S. 6, 98 S.Ct. 909, 55 L.Ed.2d 70 (1978)). Armed with these precedents, Henry moved to vacate his section 924(c)(1) sentence under Fed.R.Crim.P. 35. The district court instead chose to vacate the section 111 portion of the sentence, thereby reducing the total twelve-year sentence by only two years instead of the five years desired by defendant. Henry appealed and lost and was granted a rehearing en banc. While his case awaited submission, the Supreme Court decided Busic v. United States, 446 U.S. 398, 100 S.Ct. 1747, 64 L.Ed.2d 381 (1980).

In Busic, the Court held that the district court could not choose between sections 111 and 924(c); rather, it could only sentence under section 111. Id., 100 S.Ct. at 1752. The Court reasoned solely as a matter of statutory construction, not constitutional law, that enhanced sentencing under section 924(c) for use or possession of a firearm during the commission of a felony is not permissible when the predicate felony statute, such as section 111, contains its own enhancement provision, because in that situation section 924(c) was simply inapplicable. Id. at 1752-53. The Court, however, expressed no opinion as to whether the court of appeals could vacate the section 111 sentence as well as the section 924 sentence so that the district court could resentence under section 111 in a manner consistent with its original sentencing intent. Id. at 1756 n. 19. On remand, the Third Circuit Court of Appeals held that the district court should be able to resentence under section 111 and, accordingly, vacated both sentences. United States v. Busic, 639 F.2d 940 (3d Cir.), cert. denied, 452 U.S. 918, 101 S.Ct. 3055, 69 L.Ed.2d 422 (1981).

Applying Busic, we vacated Henry's "sentence" and remanded. United States v. Henry, 621 F.2d 763 (5th Cir.1980) (en banc). On remand, the district court vacated the section 924 sentence, reinstated the seven-year section 111 sentence, reduced it to five years, and made it consecutive to the remaining five-year sentence, thereby sentencing Henry to a total of ten years again. Henry again appealed, again lost, and was again granted a rehearing en banc.

The thirteen-member en banc court splintered. Six judges agreed with the result reached by the Third Circuit in Busic on remand and dissented. A plurality of five judges, joined by two specially concurring judges, held that the section 924(c) sentence was the only illegal sentence that the district court could correct under Rule 35, and, consequently, upward resentencing on the section 111 count was impermissible. The plurality stated, however "it is clear that one of the two coexisting sentences is absolutely illegal (that under section 924(c)(1)) and the other legal (that under section 111). If the only legal problem in a case is that two sentences cannot coexist (but neither has "priority"), then it arguably makes sense to vacate both of them on a direct appeal." Henry, 709 F.2d at 308 n. 16.

This distinction, noted by the plurality, is particularly important because it is the emphasis of the two concurring opinions. Judge Reavley, specially concurring, believed that the district court could not change the section 111 sentence because there was nothing about it "that was illegal or required to be corrected in order that some intertwined illegality could be eliminated." Id. at 317. Judge Jolly, specially concurring, went further and expressly stated that his conclusion would have been different if the two sentences were illegal only because they existed in combination.

"I conclude by saying that if the two sentences under Secs. 924 and 111 respectively could have been considered illegal in combination, rather than as one distinctly legal sentence and one distinctly illegal sentence, or if a general sentence had been given by the district court, the conclusion I have reached would be different." Id. at 318.

Based on these swing votes, we have concluded in dicta that Henry does not apply when "[i]t is the presence of both sentences which makes the entire sentencing scheme illegal." United States v. Colunga (Colunga I), 786 F.2d 655, 658 n. 4 (5th Cir.1986) (emphasis in original). In other words, Henry is binding precedent only in a Busic-type case where the defendant has been sentenced under a statute that does not proscribe the conduct for which he was prosecuted.

Here, the district court held that Cataldo's sentences under sections 1951 (Hobbs Act) and 2113 (Federal Bank Robbery Act) violated the double jeopardy prohibition as enunciated in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), and applied in an indistinguishable situation in United States v. Golay, 560 F.2d 866, 869-70 (8th Cir.1977). Cataldo does not contest this...

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