U.S. v. Evans

• Decision Date: 24 December 2002
• Docket Number: No. 02-1806.,02-1806.
• Citation: 314 F.3d 329
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Monroe EVANS, also known as Ty, also known as Daddy, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

314 F.3d 329

UNITED STATES of America, Plaintiff-Appellee, v. Monroe EVANS, also known as Ty, also known as Daddy, Defendant-Appellant.

No. 02-1806.

United States Court of Appeals, Eighth Circuit.

Submitted: September 20, 2002.

Filed: December 24, 2002.

Rehearing and Rehearing En Banc Denied: February 6, 2003.^*

Steven V. Stenger, argued, St. Louis, MO, for appellant.

Howard J. Marcus, Asst. U.S. Atty., argued, St. Louis, MO, for appellee.

Before HANSEN, Chief Judge, RICHARD S. ARNOLD and LOKEN, Circuit Judges.

LOKEN, Circuit Judge.

A jury convicted Monroe Evans of three prostitution and Mann Act counts and four money laundering counts. At sentencing, the district court departed upward and sentenced Evans to 396 months in prison. On appeal, we affirmed the conviction and the upward departure but remanded for resentencing because the sentences imposed on two counts were based upon increases to the statutory maximums enacted after Evans committed his offenses, which violated the Ex Post Facto Clause. United States v. Evans, 272 F.3d 1069, 1090-92 (8th Cir.2001), cert. denied, 535 U.S. 1029, 122 S.Ct. 1638, 152 L.Ed.2d 642 (2002). On remand, the district court again imposed a 396-month sentence, offsetting reduced sentences on those two counts with increased sentences on four other counts. Evans appeals, arguing that the new sentence exceeded the district court's jurisdiction and violated his double jeopardy and due process rights. Reviewing these issues of law de novo, we affirm.

I. The Sentences Imposed by the District Court.

The jury convicted Evans of the following offenses:

Count 17 — knowingly transporting an individual in interstate commerce with the intent that the individual engage in prostitution, 18 U.S.C. § 2421. This count carried a statutory maximum sentence of 60 months when the offense was committed and 120 months at time of sentencing.

Count 18 — knowingly persuading, inducing, or enticing an individual to travel in interstate commerce to engage in prostitution, 18 U.S.C. § 2422(a). This count carried a statutory maximum sentence of 60 months when the offense was committed and 120 months at time of sentencing.

Count 1 — conspiracy to violate the Mann Act, 18 U.S.C. § 371. This count carried a statutory maximum sentence of 60 months.

Counts 19 and 21 — money laundering in violation of 18 U.S.C. § 1956(a)(1)(A)(i). These counts each carried a statutory maximum sentence of 240 months.

Count 20 — money laundering in violation of 18 U.S.C. § 1956(a)(1)(B)(i). This count carried a statutory maximum sentence of 240 months.

Count 44 — conspiracy to launder money, 18 U.S.C. § 1956(h). This count carried a statutory maximum sentence of 240 months.

At the initial sentencing, the district court determined that the combined guidelines sentencing range for these offenses is 235 to 293 months. The court granted the government's motion for an upward departure and sentenced Evans to 396 months in prison. The court imposed seven consecutive sentences — the statutory maximum of 60 months on count 1, the erroneous statutory maximum of 120 months on counts 17 and 18, and only 24 consecutive months on each of counts 19-21 and 44, counts for which the statutory maximum was 240 months. On remand, the district court again determined that Evans's total punishment should be 396 months in prison. It reached that result by again imposing seven consecutive sentences — 60 months on count 1, as before; 60 months on counts 17 and 18, correcting the Ex Post Facto Clause violation; and increased sentences of 54 months on each of the four money laundering counts.

II. Consecutive and Concurrent Sentencing Under the Guidelines.

In 18 U.S.C. §§ 3553(a) and (b) and 3584, Congress granted district courts broad discretion to impose consecutive or concurrent sentences, subject to the provisions of the Sentencing Guidelines. The Guidelines provide that if the statutory maximum sentence is less than the minimum of the applicable guideline range, the statutory maximum "shall be the guideline sentence." U.S.S.G. § 5G1.1(a). Section 5G1.2 then addresses how a defendant should be sentenced for a multi-count conviction. Unless limited by the applicable statutory maximum, the sentence for each count "shall be the total punishment." § 5G1.2(b). If the highest applicable statutory maximum "is adequate to achieve the total punishment," the sentences on all counts "shall run concurrently," unless a statute, such as 18 U.S.C. § 924(a)(4), prescribes a consecutive sentence. § 5G1.2(c). But if the highest statutory maximum is less than the total punishment, as in this case, "then the sentence imposed on one or more of the other counts shall run consecutively, but only to the extent necessary to produce a combined sentence equal to the total punishment." § 5G1.2(d); see United States v. McLeod, 251 F.3d 78, 83 (2d Cir.), cert. denied, 534 U.S. 935, 122 S.Ct. 304, 151 L.Ed.2d 226 (2001) (explaining the "correct method of imposing sentences on multiple counts"). In United States v. Diaz, 296 F.3d 680, 684 (8th Cir.) (en banc), cert. denied, ___ U.S. ___, 123 S.Ct. 43, 154 L.Ed.2d 247 (2002), we recently confirmed that "§ 5G1.2(d) mandates consecutive sentences in those cases in which the total punishment exceeds the statutory maximum for any one count."

In this case, Evans's total punishment of 396 months was greater than the statutory maximum for any of the seven counts of conviction. Unfortunately, in constructing its original sentence, the district court did not follow Part 5G of the Guidelines. Had the district court applied Part 5G, it would have first imposed the statutory maximum sentence on each count, because each was less than the total punishment. Then, applying § 5G1.2(d), the court would have made 156 months of the second 240-month maximum sentence consecutive to the first 240-month maximum sentence, producing the 396-month total punishment. It would then have made the other five maximum sentences concurrent with the sentence imposed on the first two counts. Had the court constructed its sentence in this manner, we no doubt would have affirmed the 396-month sentence but modified the judgment to correct the error regarding the maximum sentences imposed on counts 17 and 18.¹

On remand, the district court again failed to follow § 5G1.2(d), instead constructing Evans's new 396-month sentence with seven consecutive sentences. Because § 5G1.2(d) mandates the total sentence the district court imposed, the court's Guidelines error is harmless. The issue on appeal is whether, as Evans contends, this harmless Guidelines error somehow combines with our prior remand order to produce a reversible error.

III. The Court's Jurisdiction To Resentence All Counts.

Evans argues that our remand order gave the district court no jurisdiction to reopen his sentence on the four money laundering counts. We disagree. Our prior order simply "remanded for resentencing." 272 F.3d at 1098. Under the Guidelines, "a multi-count sentence is a package and severing part of the total sentence usually will unbundle it." Gardiner v. United States, 114 F.3d 734, 736 (8th Cir.1997) (quotation omitted). Here, § 5G1.2(d) required the district court to sentence the seven counts as a package, using consecutive and concurrent sentences so as to impose the proper total punishment. Thus, when we did not limit our remand to resentencing only counts 17 and 18, the district court retained jurisdiction to resentence all the counts as a package.

IV. A Double Jeopardy Issue.

Evans next argues that increasing his sentences on each of the four money laundering counts violates the Double Jeopardy Clause prohibition on multiple punishments because he had begun to serve those sentences. Again, we disagree. For many years, most federal courts read United States v. Benz, 282 U.S. 304, 306-07, 51 S.Ct. 113, 75 L.Ed. 354 (1931), and Ex parte Lange, 18 Wall. 163, 168, 173, 21 L.Ed. 872 (1874), as establishing "that once a prisoner commences service of sentence, the [Double Jeopardy] Clause prevents a court from vacating the sentence and then imposing a greater one." North Carolina v. Pearce, 395 U.S. 711, 747, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) (Harlan, J., dissenting in part). However, in United States v. DiFrancesco, 449 U.S. 117, 136, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980), the Court held that the Double Jeopardy Clause does not prohibit imposing a greater sentence after a successful appeal by the government. The Court explained that the defendant "has no expectation of finality in his sentence until the appeal is concluded or the time to appeal has expired." The Court again cited a defendant's lack of "expectation of finality in his original sentencing" as the critical Double Jeopardy Clause inquiry in Pennsylvania v. Goldhammer, 474 U.S. 28, 30, 106 S.Ct. 353, 88 L.Ed.2d 183 (1985).

Following DiFrancesco and Goldhammer, many circuits have concluded that a defendant who successfully appeals one part of a multi-count sentencing package has no expectation of finality as to any part of the sentence. Therefore, the Double Jeopardy Clause does not bar resentencing on all counts to carry out the sentencing judge's original intent. See United States v. Gelb, 944 F.2d 52, 59 (2d Cir.1991); United States v. Welch, 928 F.2d 915, 916-17 (10th Cir.), cert. denied, 502 U.S. 850, 112 S.Ct. 153, 116 L.Ed.2d 118 (1991); United States v. Earley, 816 F.2d 1428, 1433 n. 6 & cases cited (10th Cir.1987) (en banc); United States v. Busic, 639 F.2d 940, 947-48 (3d Cir.) ("where the sentences were interdependent ... [t]here is nothing in the history or the policies of the Double Jeopardy Clause that justifies the denial of resentencing when the sentence has been spread erroneously over counts that have been declared invalid"), cert. denied, 452 U.S. 918, 101 S.Ct. 3055, 69 L.Ed.2d 422 (1981). That rule is particularly appropriate in a case governed by Part 5G of the Sentencing Guidelines, which...