U.S. v. Crawford

• Decision Date: 12 August 1985
• Docket Number: No. 85-2105,85-2105
• Citation: 769 F.2d 253
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Steven Lane CRAWFORD, and Randall Craig Waggoner, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 253

769 F.2d 253

UNITED STATES of America, Plaintiff-Appellee, v. Steven Lane CRAWFORD, and Randall Craig Waggoner Defendants-Appellants.

No. 85-2105.

United States Court of Appeals Fifth Circuit.

Aug. 12, 1985.

T.J. Baynham, Jr., (Court appointed), Tyler, Tex., for Waggoner.

Weldon Holcomb, Tyler, Tex., for Crawford.

Mark L. Gross, Wm. Bradford Reynolds, Jessica Dunsay Silver, Dept. of Justice, Civil Rights Div., Washington, D.C., for United States.

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

Before RUBIN and REAVLEY, Circuit Judges, and SEAR ^*, District Judge.

REAVLEY, Circuit Judge:

Steven Crawford and Randall Waggoner were convicted on one count of conspiring to transport illegal aliens, nine counts of transporting illegal aliens, and eleven counts of holding persons in involuntary servitude. ¹ They appeal an order of the district court granting the government's Fed.R.Crim.P. 35(a) motion to correct sentence, claiming that the increase in punishment they received on resentencing violates their double jeopardy rights. ² Concluding that resentencing was proper in this case, we affirm.

I.

At the original sentencing proceeding, the district court judge addressed each defendant and gave each one an opportunity to respond, as required by Fed.R.Crim.P. 32(a)(1). The attorneys for the United States were not heard. Arguing that the denial of the government's right of allocution under Rule 32(a)(1) had caused the sentences given the defendants to be imposed in an illegal manner, the United States appealed and petitioned for mandamus. We dismissed the appeal for want of jurisdiction and denied the writ of mandamus because we concluded that the alleged flaw in the sentencing proceeding did not justify extraordinary relief. In dismissing the appeal, we stated that the government was free under Rule 35 to apply for correction of sentence in the district court and that Rule 35's 120-day period would begin anew on receipt of our mandate.

The United States then filed its Rule 35(a) motion to correct sentence. In granting the government's motion, the district court noted that it had understood the government's right to be heard and had not intended to deny it; but looking back at what had transpired and making an objective ruling in response to the Rule 35 motion, the court stated that the "overriding fact is that the government was not heard before sentence was pronounced on defendants Crawford and Waggoner when it apparently wished to be heard." The court was therefore "of the opinion that the sentences were imposed in an illegal manner and that correction pursuant to Rule 35 is necessary." The court vacated the sentences previously imposed, and, concluding that the appearance of justice would be more readily served if the defendants were resentenced before another district judge, ordered the action transferred to the chief judge for the district for further proceedings as deemed appropriate. Greater sentences, see supra n. 2, were subsequently imposed.

The two primary issues raised in this appeal are: first, whether the district court erred in granting the government's motion under Fed.R.Crim.P. 35; and, second, whether the resentencing of Crawford and Waggoner violated their double jeopardy rights under the Fifth Amendment. ³

II.

A.

The appellants concede that Fed.R.Crim.P. 32(a)(1) grants the government allocution rights equal to the rights granted defendants. ⁴ They assert, however, that the district court erroneously found that the United States was denied its right to allocute.

The record shows that, in the original sentencing proceeding, the district court discussed the presentence report with each defendant. The court then gave the defendants and their counsel each an opportunity to speak on behalf of the defendants. Immediately thereafter, the court began to discuss recommendations from the probation office concerning the defendants. The court then addressed the attorney for the Justice Department, stating its opinion concerning the efforts of the government to reduce the number of illegal aliens entering the United States. The United States Attorney began to respond, but she was stopped by the court and told that the court did not wish to hear from her. She repeated her attempt to speak several times but each time she was stopped by the court. When she began to cite the rules, the court responded that it did not care what the rules said concerning what the attorney was talking about. The court warned her that it could hold her in contempt under the rules if she said anything else. Immediately thereafter, the court imposed sentence on the defendants.

The appellants contend that, in finding that the United States had been denied its allocution rights, the district court improperly "implied substance over form." They argue that it is obvious from the transcript that the government's attorney chose not to speak when its attorney standing at the lectern did not seek allocution rights. They contend that the United States Attorney that attempted to address the court was not at the lectern. They characterize her attempts to speak, as did the district court in its brief opposing the government's petition for mandamus, as improper interruptions. We believe that in the Rule 35 hearing the district judge was entitled, whatever the position of the government attorneys in the courtroom might have been, to find that the court did not hear the government when it wished to be heard.

The district court in its order granting the Rule 35 motion found, in effect, that the court denied the United States its right to allocution. We review such factual determinations by the district court under the clearly erroneous standard. Campbell v. United States, 373 U.S. 487, 493, 83 S.Ct. 1356, 1360, 10 L.Ed.2d 501 (1963). The district court's finding is not clearly erroneous. Though government counsel attempted to speak, the court stopped her and proceeded to sentencing without informing any government counsel they might then be heard. The record does not indicate which United States Attorney was standing at the lectern. The United States Attorney had been told not to speak and thereafter remained silent. We cannot assume that silence under those circumstances meant the choice to forgo allocution. We accept the district court's finding that the overall effect was that the government was denied its allocution rights. It follows that the sentences were imposed illegally, in violating Fed.R.Crim.P. 32(a)(1). See United States v. Velasquez, 748 F.2d 972, 974 (5th Cir.1984). We hold that the court properly granted the motion of the United States to correct sentence under Fed.R.Crim.P. 35(a).

B.

The appellants contend that their right not to be placed twice in jeopardy was violated when their punishment was enhanced in the resentencing proceeding. They argue that they had a legitimate expectation that their sentences were final because (1) they were not at fault in the original sentencing proceeding, and (2) absent statutory authority, their sentences could not be enhanced once they had begun to serve them. The United States counters that no such expectation exists when, as here, the sentence is challenged in a manner provided by law.

Appellants cite Jones v. United States, 722 F.2d 632 (11th Cir.1983), in arguing that their lack of culpability in the original sentencing proceeding should be controlling. The defendant in Jones was originally sentenced to four years' imprisonment, with all but an indeterminate six months suspended, and five years probation. When the district court later learned that it had been mistaken about certain factual matters, through no fault of the defendant, the court resentenced the defendant to four years' imprisonment, with no part suspended and no probation. Id. at 633.

The Eleventh Circuit reversed the district court's judgment in Jones, holding that the defendant's "legitimate expectations with respect to the duration of his sentence were frustrated by resentencing." Id. at 638. In so holding, the court explained that a sentence, once imposed and commenced, could not be enhanced unless modified according to statute or unless the defendant knowingly deceived the court. Id. The sentence of the defendant in Jones was imposed legally and was not subject to attack on a Rule 35 motion. That is the difference between Jones and the present case.

The Supreme Court ended any question whether the government can challenge an illegal sentence in United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980). The defendant in DiFrancesco had been sentenced as a dangerous special offender under 18 U.S.C. Sec. 3575. The United States sought review of his sentence under 18 U.S.C. Sec. 3576, a statute granting such rights under specified conditions. Id. at 118-123, 101 S.Ct. at 427-30, 66 L.Ed.2d at 333-336. The Court of Appeals for the Second Circuit dismissed the appeal on double jeopardy grounds, and the Supreme Court reversed.

In DiFrancesco, the Supreme Court summarized the principles of double jeopardy as they apply to sentencing. First, the Court explained that double jeopardy does not prevent review of a sentence just because its success might deprive a defendant of the benefit of a more lenient sentence. Id. at 132, 101 S.Ct. at 434-35, 66 L.Ed.2d at 342. Second, the Court recognized that the imposition of a sentence is not an implied acquittal of any greater sentence. Id. at 133, 101 S.Ct. at 435, 66 L.Ed.2d at 343. Third, the Court concluded that its prior decisions establish that a sentence does not have the qualities of constitutional finality associated with an acquittal. Id. at 134-35, 101 S.Ct. at 436, 66 L.Ed.2d at 344. Fourth, the Court noted a defendant convicted under section 3575 was charged with knowledge of section 3576 and its appeal provisions. Id. at 136, 101 S.Ct. at 437, 66 L.Ed.2d at 345. The Court concluded that such...