U.S. v. Dean, s. 84-8386

• Decision Date: 17 January 1985
• Docket Number: Nos. 84-8386,85-8035,s. 84-8386
• Citation: 752 F.2d 535
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Roscoe Emory DEAN, Jr., Defendant-Appellee. In re UNITED STATES of America, Petitioner. Non-Argument Calendar.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 535

752 F.2d 535

UNITED STATES of America, Plaintiff-Appellant, v. Roscoe Emory DEAN, Jr., Defendant-Appellee In re UNITED STATES of America, Petitioner.

Nos. 84-8386, 85-8035

Non-Argument Calendar.

United States Court of Appeals Eleventh Circuit.

Jan. 17, 1985.

Patty Mukaup Stemler, Appellate Section, Crim. Div., Washington, D.C., for plaintiff-appellant.

Donald E. Wilkes, Jr., University of Ga. School of Law, Athens, Ga., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Georgia.

On Petition for a Writ of Mandamus to the United States District Court for the Southern District of Georgia.

Before GODBOLD, Chief Judge, KRAVITCH and HATCHETT, Circuit Judges.

KRAVITCH, Circuit Judge:

This case raises two important issues: (1) whether appeal or mandamus is the proper remedy when the government alleges that the district court has acted beyond the scope of its lawful authority in reducing the sentence of a convicted criminal defendant; and (2) whether the district court may reduce a defendant's sentence under Rule 35(a) of the Federal Rules of Criminal Procedure when the original sentence was based on an erroneous prediction concerning the amount of time the defendant would likely serve in prison prior to parole. After reviewing our prior decisions, we conclude that (1) mandamus, not appeal, is the government's proper remedy, and (2) the district court lacked the authority to enter the order reducing the defendant's sentence under Rule 35(a). ^*

A. The Facts

The facts are largely undisputed. Roscoe Dean, a former Georgia state senator, was tried and convicted in the United States District Court for the Southern District of Georgia on three counts of conspiracy to import cocaine, marijuana, and methaqualone, in violation of 21 U.S.C. Secs. 956, 963. ¹ In June, 1980, Dean was sentenced to concurrent five-year prison terms and fined $10,000 for each offense. On appeal, the former Fifth Circuit ruled that the evidence at trial showed the existence of only one conspiracy, not three, and remanded the case to the district court with instructions to vacate two of the three convictions and to resentence Dean. United States v. Dean, 666 F.2d 174 (5th Cir. Unit B), cert. denied, 456 U.S. 1008, 102 S.Ct. 2300, 73 L.Ed.2d 1303 (1982). On April 16, 1982, Dean was resentenced by the district court to five years' imprisonment and a fine of $10,000. ²

On September 15, 1982, Dean filed a motion for reduction of sentence under Rule 35(b) of the Federal Rules of Criminal Procedure. ³ On October 22, the district court denied the motion. On November 1, Dean moved for reconsideration; two weeks later, that motion likewise was denied.

On February 1, 1984, Dean filed a motion to correct an illegal sentence pursuant to Rule 35(a). ⁴ In his motion, Dean alleged that the sentencing court had relied on an erroneous prediction by a probation officer concerning the length of time Dean would likely serve in prison prior to parole. The probation officer had predicted that, under the Parole Commission's guidelines, and assuming the imposition of a sentence of not more than nine years' imprisonment, Dean would likely serve between 24 and 36 months prior to parole. On July 14, 1983, however, the Parole Commission determined that Dean would not become eligible for parole until he had served 40 to 52 months of his five-year sentence. ⁵ On January 17, 1984, after an exchange of letters between Dean, the district court, and the Parole Commission, the Commission affirmed its prior decision as to Dean's parole eligibility.

On April 5, 1984, the district court granted Dean's motion, "modified" Dean's sentence "to be limited to time already served by the defendant," and ordered Dean released from prison instanter. ⁶ The government filed a notice of appeal ⁷ and a petition for a writ of mandamus ⁸ on the grounds that the district court lacked the authority to reduce Dean's sentence. On June 27, a panel of this court denied without opinion the government's petition for a writ of mandamus. In re United States, No. 84-8475 (11th Cir. June 27, 1984) (unpublished order). Shortly thereafter, Dean filed a motion to dismiss the government's appeal for lack of jurisdiction. The government's memorandum in opposition to Dean's motion suggested that, in the event the court granted the motion to dismiss the appeal, the court should "reinstate" the government's petition for a writ of mandamus. The government subsequently filed motions to (1) consolidate the appeal with the previous mandamus action, (2) vacate the order denying the petition for a writ of mandamus, and (3) refile the petition for a writ of mandamus.

B. The Motion to Dismiss the Government's Appeal

In the motion to dismiss the government's appeal, Dean contends that this court lacks jurisdiction to hear the appeal because no statute permits the government to appeal a sentence modification order entered in a Rule 35 proceeding. The government, on the other hand, contends that the district court's order is appealable as a "final decision" under 28 U.S.C. Sec. 1291. ⁹

This issue is controlled by the former Fifth Circuit decision in United States v. Denson, 588 F.2d 1112 (5th Cir.), aff'd in part and modified in part en banc, 603 F.2d 1143 (5th Cir.1979). ¹⁰ In Denson, the district court sentenced three defendants to terms of probation, despite the fact that the defendants had been convicted of offenses for which probation could not lawfully be imposed. The government filed a motion to correct the sentences. When the motion was denied, the government appealed. ¹¹

The former Fifth Circuit dismissed the government's appeal for lack of jurisdiction. The court first noted the long-established rule that the government cannot appeal in a criminal case without the express authorization of Congress. Denson, 588 F.2d at 1125. The court then explained:

[C]ertain orders relating to a criminal case may be found to possess sufficient independence from the main course of the prosecution to warrant treatment as plenary orders, and thus be appealable on the authority of 28 U.S.C. Sec. 1291 ... just as in civil litigation orders of equivalent distinctness are appealable on the same authority ....

Id. at 1126 (quoting Carroll v. United States, 354 U.S. 394, 403, 77 S.Ct. 1332, 1338, 1 L.Ed.2d 1442 (1956) (footnote omitted)). The court pointed out, however, that "[t]he Supreme Court [has] emphasized the rareness of such orders." Denson, 588 F.2d at 1126. The court listed the following factors to be used in determining the appealability of a district court's order under 28 U.S.C. Sec. 1291:

The order appealed from must be severable from, and collateral to, the main case; the right involved must be so important that to deny review would be inappropriate; the issue presented must be such that postponing review until the final termination of the case would cause the irreparable loss of the valued right.

Id. (citation omitted). Applying these factors to the case before it, the court concluded that "[t]he sentencing process is the inevitable culmination of a successful prosecution; it is an integral aspect of a conviction." Id. (emphasis added). The court thus held that "the orders of sentence and probation are not possessed of 'sufficient independence' from the criminal case to permit a Government appeal under 28 U.S.C. Sec. 1291," id. (citations omitted), and dismissed the government's appeal. ¹²

The order in the instant case, like the one in Denson, fails to qualify as a "final order" under 28 U.S.C. Sec. 1291 because it is not "possessed of 'sufficient independence' " from the underlying criminal case. The government attempts to distinguish Denson on the grounds that Denson involved an appeal of the district court's original sentencing order, whereas here the government seeks to appeal an order modifying Dean's original sentence. We do not find this distinction significant. Under Denson, the entire "sentencing process" is "an integral aspect of a conviction." 588 F.2d at 1126. In our view, both the original sentencing order and the modification order are part of the "sentencing process" discussed in Denson. Hence we reject the government's contention that the modification order is "sufficiently independent" from the underlying criminal case to be appealable under 28 U.S.C. Sec. 1291, and we grant Dean's motion to dismiss the government's appeal. ¹³

C. The Effect of the Prior Denial of the Government's Petition for a Writ of Mandamus

We will treat the government's three pending motions as a new petition for a writ of mandamus. Because another panel of this court previously denied an identical petition filed by the government, In re United States, No. 84-8475 (11th Cir. June 27, 1984) (unpublished order), we must decide whether the doctrines of res judicata or law of the case preclude us from reaching the merits of the new petition.

In general, a prior decision will have res judicata effect only if it was a decision "on the merits." Lawlor v. National Screen Service Corp., 349 U.S. 322, 326, 75 S.Ct. 865, 867, 99 L.Ed. 1122 (1955); see generally 18 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure Sec. 4435 (1981). ¹⁴ Accordingly, a prior denial of a petition for a writ of mandamus will have res judicata effect only if the denial was "on the merits," but not if the denial was the result of the special limitations inherent in the writ:

As to ... more limited uses of extraordinary writs, on the other hand, preclusion ordinarily is inappropriate if the first decision was governed by curtailed procedures, discretionary grounds of decision, or special limits....

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... Denial of a writ commonly rests on severe limitations of jurisdiction and discretion that prevent the court from applying ordinary tests of reversible error. If a decision is confined by these limitations, it should not preclude examination of the merits in later...