U.S. v. Corbitt

• Citation: 13 F.3d 207
• Decision Date: 28 December 1993
• Docket Number: No. 92-3835,92-3835
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael J. CORBITT, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 207

13 F.3d 207

UNITED STATES of America, Plaintiff-Appellee, v. Michael J. CORBITT, Defendant-Appellant.

No. 92-3835.

United States Court of Appeals Seventh Circuit.

Argued Oct. 25, 1993.

Decided Dec. 28, 1993.

Thomas Scorza, Asst. U.S. Atty., Crim. Div. (argued), Barry R. Elden, Asst. U.S. Atty., Crim. Receiving, Appellate Div., Chicago, IL, for U.S.

Candace J. Fabri, Sachnoff & Weaver (argued), John H. Ehrlich, Levin & Funkhouser, Chicago, IL, for Michael J. Corbitt.

Before FLAUM and EASTERBROOK, Circuit Judges, and SKINNER, District Judge. ^*

FLAUM, Circuit Judge.

After a jury found Michael Corbitt guilty of participating in a RICO conspiracy, Corbitt was sentenced under pre-Sentencing Guidelines law to a twenty-year prison term. About two and a half years after this sentence was imposed, the government asked the district court to resentence Corbitt, arguing that his original sentence was illegal because it should have been imposed under the Guidelines. The district court granted the government's motion and resentenced Corbitt under the Guidelines, again to a twenty-year term but effectively increasing the actual prison time he must serve by a period that could range from about four to ten years. Corbitt appeals the resentencing, claiming that it was sought too late in the day. We agree.

I.

On June 12, 1989, a jury found Michael Corbitt and two codefendants, Alan Masters and James Keating, guilty of conspiracy under the federal RICO (Racketeer Influenced and Corrupt Organization) statute, 18 U.S.C. Sec. 1962(d). (Masters and Keating also were convicted of substantive RICO charges.) We have described the details of their crimes before, see United States v. Masters, 924 F.2d 1362 (7th Cir.) cert. denied, --- U.S. ----, 111 S.Ct. 2019, 114 L.Ed.2d 105 and --- U.S. ----, 112 S.Ct. 86, 116 L.Ed.2d 58 (1991) (hereinafter "Masters I "), and so abridge our factual recitation to what is necessary for the resolution of this appeal. ¹ In 1981 Masters decided to have his wife, Dianne, killed, and to that end enlisted the aid of Corbitt and Keating, with whom he had already developed an informal association for other criminal purposes. Corbitt's and Keating's assistance in this matter was especially helpful because both were ranking law enforcement officials; Keating was a lieutenant in the Cook County Sheriff's Department, and Corbitt was the chief of police in the suburban Chicago community of Willow Springs.

Dianne Masters disappeared on March 19, 1982, and her body, beaten and shot, was found nine months later in the trunk of her car which had been driven into a canal. Corbitt likely was involved in the disposal of Dianne Masters' body and certainly was involved in a plan to hide her murder. For several years, the murder investigation led nowhere, largely because of the conspirators' efforts. When the case broke and the perpetrators finally were brought to justice, the jury found, among other things, that Corbitt, Masters and Keating conspired to conduct a racketeering enterprise in order to conceal their actions relating to Dianne Masters' murder. All three defendants were sentenced under pre-Guidelines law on August 28, 1989. Corbitt received the statutory maximum sentence of twenty years but would have been eligible for parole after serving as little as a third of that period.

All three defendants appealed their convictions, and Masters and Keating challenged their sentences, arguing (improvidently for their cause, as accurate calculation would have shown) that they should have been sentenced under the rubric of the Sentencing Guidelines. Neither the government nor Corbitt appealed his sentence. We affirmed all the convictions but vacated Masters' and Keating's sentences as they requested. Noting that our opinion in United States v. Fazio 14 F.2d 950, 958-59 (7th Cir.1990), clarified that the Sentencing Guidelines apply to conspiracies that straddle the effective date of the Guidelines, November 1, 1987, we indicated that Masters and Keating should be sentenced under the Guidelines if in fact there was a "straddle conspiracy" in their case. Because the district court made no finding as to when the conspiracy ended, ² we remanded the case to the district court for such a determination. On remand, the district court accepted the consensus opinion of the parties that the conspiracy remained in existence beyond November 1, 1987, and, on August 2 and September 20, 1991, the court resentenced Masters and Keating, respectively, under the Sentencing Guidelines. This court affirmed their new sentences. See United States v. Masters, 978 F.2d 281 (7th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 2333, 124 L.Ed.2d 245 (1993).

From the turn of events in Keating's and Masters' cases, the government realized that if it could somehow reopen Corbitt's sentencing it would likely succeed in also having him resentenced under the more severe strictures of the Guidelines. Understanding that the current version of the Federal Rule of Criminal Procedure governing correction of sentences, Rule 35, facially does not offer an opportunity to revisit Corbitt's sentence, ³ the government waited for an opening to argue as convincingly as possible that the more wide-open provisions of old Rule 35 should apply to Corbitt's case. ⁴ This chance came, the government felt, when on February 4, 1992, Corbitt filed a motion for reduction of sentence under the provisions of old Rule 35(b). ⁵ Buoyed by what it perceived to be a concession that old Rule 35 applies to Corbitt's case for all purposes, the government filed its "Motion to Correct an Illegal Sentence" on March 20, 1992, invoking old Rule 35(a). Acting on the motion, the district court explicitly found that the RICO conspiracy extended beyond November 1, 1987, to the date of the indictment and consequently resentenced Corbitt under the Guidelines. This appeal followed.

II.

A.

For starters, the government and Corbitt contest which version of Rule 35 should properly apply to the government's motion. If the newer Rule applies, as Corbitt insists, its language is clear that the district court had no authority to resentence him. The case was not on remand nor did the court act within seven days of the original imposition of sentence, and, as Corbitt points out, the Rule does not provide for sentence correction outside of such circumstances. See United States v. Daddino, 5 F.3d 262, 265 (7th Cir.1993) (per curiam); Scott v. United States, 997 F.2d 340, 341 (7th Cir.1993). The government, on the other hand, urges that the older rule, authorizing the correction of an illegal sentence "at any time," applies. ⁶ If it does, the government believes that "once the illegality of Corbitt's sentence became evident," the district court clearly acted within its authority to sentence Corbitt anew under the Guidelines.

We agree that old Rule 35(a) applies to the government's motion. Rule 35 was amended as part of the Comprehensive Crime Control Act of 1984--the legislation which brought us the Sentencing Guidelines--and its revised form was to be applicable to offenses committed on or after November 1, 1987, the date on which the Guidelines went into effect. See Act of Dec. 26, 1985, Pub.L. 99-217, Sec. 4, 99 Stat. 1728; Act of Oct. 12, 1984, Pub.L. 98-473, Title II, Sec. 235, 98 Stat. 2015. Old Rule 35(a) remained applicable to offenses committed before November 1, 1987.

Corbitt claims that the government cannot, out of one side of its mouth, claim that his RICO conspiracy continued beyond November 1, 1987, while, out of the other, seek resentencing under the authority of a Rule dedicated to offenses committed prior to that date. Nevertheless, despite any seeming incongruity in its positions, the government acted properly in choosing to invoke old Rule 35(a). Corbitt's original sentence was a pre-Guideline sentence in all respects. At the time of trial and sentencing, there was no finding in the record that Corbitt's crime continued beyond the effective date of the Guidelines and new Rule 35, and the district court accordingly deemed him convicted of a pre-November 1, 1987 offense. That characterization obtained through the date on which the government filed its motion. Thus, old Rule 35 was the only means available to anyone by which to seek correction of the original sentence. Corbitt properly made his motion for reduction under that Rule; likewise, the government was right to utilize the same Rule in seeking sentence correction. That the alleged defect in the sentence was in fact based on an assertion that the offense continued beyond November 1, 1987, cannot alter the fact that the government sought correction of a pre-Guidelines sentence. The only accessible avenue for relief was the one that went out from the status of the original sentence as it existed at the time of the motion. The government's desired destination--in fact, a change in that status--could not control the proper path to be taken. In short, old Rule 35 is applicable to attempts to examine pre-Guidelines sentences, even if the relief sought is resentencing under the Guidelines. Cf. United States v. Kohl, 972 F.2d 294, 296 (9th Cir.1992) (observing that an old Rule 35(a) motion--seeking resentencing under pre-Guidelines law--was an improper mechanism for an attack on a sentence imposed under the Guidelines).

B.

While we conclude that old Rule 35(a) was the appropriate vehicle for the government's effort to reexamine the pre-Guideline sentence in this case, we hold that, even under that more forgiving rule, the district court erred in resentencing Corbitt. The court only had authority to correct an illegal sentence. Corbitt's sentence, however, was a legal sentence when imposed and remained legal until and beyond the time the government filed its motion to correct. Only a finding that Corbitt was a participant in a conspiracy that continued through November 1, 1987, would have rendered his pre-Guidelines...