U.S. v. Caterino

• Decision Date: 04 April 1994
• Docket Number: No. 93-50184,93-50184
• Citation: 29 F.3d 1390
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Vincent CATERINO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1390

29 F.3d 1390

UNITED STATES of America, Plaintiff-Appellee, v. Vincent CATERINO, Defendant-Appellant.

No. 93-50184.

United States Court of Appeals Ninth Circuit.

Submitted April 4, 1994 ^*.

Decided July 14, 1994.

David W. Wiechert, Layman, Jones & Dye, Irvine, CA, for defendant-appellant.

Ronald L. Cheng, Asst. U.S. Atty., Los Angeles, CA, for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before: BROWNING, PREGERSON, and BRUNETTI, Circuit Judges.

PREGERSON, Circuit Judge:

I. BACKGROUND

On March 18, 1989 a jury convicted appellant, Vincent Caterino, of twenty-two counts of conspiracy, mail fraud, and wire fraud, in violation of 18 U.S.C. Secs. 371, 1341, and 1343. He appeals his sentence, imposed by the district court after we remanded his case for resentencing. We have jurisdiction under 18 U.S.C. Sec. 3742.

Mr. Caterino's convictions arose out of a scheme whereby he and others operating a company called Marco Numismatics, Inc. ("Marco"), conspired to fraudulently induce more than 500 customers to invest in nearly worthless coins. Thirteen of the twenty-two counts of which Caterino was convicted arose from conduct occurring before November 1, 1987, the effective date of the Sentencing Guidelines.

After the jury returned its verdict, the district court sentenced Caterino for offenses committed before and after the Sentencing Guidelines became effective. For each of the pre-Guidelines offenses it imposed a five-year prison term, to be served concurrently with the other pre-Guidelines sentences. For each of the Guidelines offenses, it imposed a 97-month term, to be served concurrently with the other Guidelines sentences. The pre-Guidelines sentences were set to run consecutively to the sentences imposed under the Guidelines.

On appeal we affirmed the convictions but remanded for resentencing because the district court had erroneously added a multiple vulnerable victim adjustment to Caterino's offense level under the Guidelines. See United States v. Caterino, 957 F.2d 681, 684 (9th Cir.) ("Caterino"), cert. denied, --- U.S. ----, 113 S.Ct. 129, 121 L.Ed.2d 83 (1992). In a separate unpublished memorandum disposition, we rejected Caterino's argument that the district court erred when it provided for consecutive pre- and post-Guidelines sentences without first apportioning the investor losses due to offenses committed before and after the Guidelines took effect. 1992 WL 33347, No. 90-50049 (9th Cir. 2/21/92) ("Caterino (Mem.Disp.)"). We found that Caterino had waived his right to challenge the district court on this issue by agreeing to a sentence level, under the Guidelines, that specifically took the uncertainty of loss into account.

On remand, the district court reduced Caterino's total sentence for offenses committed after the effective date of the Guidelines from 97 months to 78 months. But the district court restructured the sentences on these Guidelines counts as follows: whereas it had previously imposed identical 97-month sentences to be served concurrently on all Guidelines counts, it now imposed a single 18-month sentence on one of the counts, and 60-month sentences on each of the remaining counts, to be run concurrently. The district court directed that Caterino serve the 18-month sentence consecutively to the 60-month sentences, for a total Guidelines sentence of 78 months. In addition, the district court re-imposed the 5-year sentence for the pre-Guidelines offenses, and again provided that the pre-Guidelines and post-Guidelines sentences were to run consecutively.

II. APPORTIONMENT OF PRE- AND POST-GUIDELINES LOSSES (NIVEN CLAIM)

Mr. Caterino first contends that the district court should not have provided for consecutive pre-Guidelines and post-Guidelines sentences without first apportioning the investor losses due to offenses committed before and after the Guidelines took effect. He argues that the district court's failure to apportion the losses conflicts with United States v. Niven, 952 F.2d 289 (9th Cir.1991). We review de novo the legality of a sentence. U.S. v. Mullins, 992 F.2d 1472, 1478 (9th Cir.), cert. denied --- U.S. ----, 114 S.Ct. 556, 126 L.Ed.2d 457 (1993). In particular, where, as here, the facts are undisputed, we review de novo whether a resentencing violates the Double Jeopardy Clause. United States v. Kinsey, 994 F.2d 699, 702 (9th Cir.1993).

In Niven, we held that it was a violation of the Double Jeopardy Clause for a district court to count the same loss inflicted by the defendant both when determining a pre-Guidelines sentence and again when calculating a Guidelines sentence, and then to impose the two sentences consecutively to each other. Niven, 952 F.2d at 293-94. Caterino argues that Rule 35 and the remand order obligated the district court to examine the merits of his Niven claim on resentencing after remand. We find first, that the district court was not limited to addressing the specific issue that led to the remand, and that in particular it was not barred from addressing Caterino's Niven claim. Second, we find that Caterino's sentence was inconsistent with Niven, and we therefore remand for resentencing.

A. Procedural hurdles.

"A district court does not have inherent power to resentence defendants at any time." United States v. Lewis, 862 F.2d 748, 750 (9th Cir.1988) (quotation omitted), cert. denied, 489 U.S. 1032, 109 S.Ct. 1169, 103 L.Ed.2d 227 (1989). The authority to change a sentence must derive from some federal statutory authority, most commonly Rule 35 of the Federal Rules of Criminal Procedure ("FRCrP"). Id. There are two theories under which Rule 35 authorized the district court to exercise authority to examine the merits of Caterino's Niven claim. First, the district court had authority to correct an illegal sentence on remand from this court. See F.R.Cr.P. 35(a). Second, the district court also had inherent authority to do so under the versions of Rule 35 applicable to this case. ¹ Despite this authority, the district court declined to rule on the merits of the Niven claim because it thought that the law of the case precluded it from doing so. We address each of these procedural issues in turn.

(1) Scope of remand:

The general rule is that a district court on remand may take any matter into account and may hear any evidence relevant to sentencing. See United States v. Cornelius, 968 F.2d 703, 705 (8th Cir.1992); United States v. Smith, 930 F.2d 1450, 1456 (10th Cir.) (resentencing on remand is de novo), cert. denied, --- U.S. ----, 112 S.Ct. 225, 116 L.Ed.2d 182 (1991). We have limited this general rule to preclude consideration of post-sentencing conduct, as well as conduct beyond the scope of a limited remand. See United States v. Gomez-Padilla, 972 F.2d 284, 285-86 (9th Cir.1992) (affirming failure of district court to weigh post-sentencing conduct at resentencing); see also Lewis, 862 F.2d at 750 (district court lacked "inherent power" or authority under F.R.Cr.P. 35 to resentence on counts other than those remanded).

In the case at bar, post-sentencing conduct is not at issue. The only point of contention is whether the district court's authority was abridged by any express or implied limits in the remand order. The relevant portion of Caterino provided as follows: "[T]he district court erred by adding multiple vulnerable victim adjustments to Appellant['s] offense level under the Guidelines. We therefore VACATE ... Caterino['s] sentence[ ] and REMAND for resentencing." Caterino, 957 F.2d at 684.

This remand order did not expressly limit the district court to correcting the vulnerable victim adjustment. The only question was whether there was any implied limitation, given that no other error was deemed sufficient to warrant a remand. Such a reading might seem plausible because the Niven claim was expressly rejected by the court in Caterino (Mem.Disp.), albeit on procedural grounds. But neither Caterino, the government, nor the district court has adopted such a limited interpretation of the remand order. Rather, everyone has interpreted the order broadly enough to authorize a de novo review of the sentencing factors. Moreover, a narrow reading of the remand order would be inconsistent with our general practice after United States v. Jenkins, 884 F.2d 433, 441 (9th Cir.), cert. denied, 493 U.S. 1005, 110 S.Ct. 568, 107 L.Ed.2d 562 (1989), which is to vacate the entire sentence and remand for resentencing whenever we find that a sentence was imposed in excess of the sentencing court's authority. United States v. Blue Mountain Bottling Co., 929 F.2d 526, 529-30 (9th Cir.1991). Accordingly, we presume that this general practice was followed unless there is clear evidence to the contrary. Because no such clear evidence exists here, the Caterino decision should be read as granting a general rather than limited remand to the district court.

(2) Inherent authority under Rule 35:

In addition, the district court had inherent authority to correct an illegal sentence under the old version of F.R.Cr.P. 35. For offenses committed before the Guidelines became effective, a district court was empowered to correct an illegal sentence at any time. United States v. Minor, 846 F.2d 1184, 1188 (9th Cir.1988). For offenses committed after the effective date, district courts maintained their authority to correct illegal sentences, but only until the expiration of the time for appeal. See United States v. Cook, 890 F.2d 672, 674 (4th Cir.1989) (district court retained power to correct obvious mistakes after passage of the Sentencing Reform Act); United States v. Rico, 902 F.2d 1065, 1066-67 (2nd Cir.) (same), cert. denied, 498 U.S. 943, 111 S.Ct. 352, 112 L.Ed.2d 316 (1990); see also F.R.Cr.P. 35 Notes on 1991 Amendment (the 1991 amendment codified Cook and Rico but provided a more stringent time requirement). Because the time for appeal had expired by the time of resentencing, the...