U.S. v. Floyd, 74-3568

• Decision Date: 18 September 1975
• Docket Number: No. 74-3568,74-3568
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Henry FLOYD, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1031

519 F.2d 1031

UNITED STATES of America, Plaintiff-Appellee, v. Henry FLOYD, Jr., Defendant-Appellant.

No. 74-3568.

United States Court of Appeals, Fifth Circuit.

Sept. 18, 1975.

Stephen A. Kermish, Atlanta, Ga., for defendant-appellant.

Wayman G. Sherrer, U. S. Atty., John S. Salter, Asst. U. S. Atty., Birmingham, Ala., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Alabama.

Before COLEMAN, MORGAN and CLARK, Circuit Judges.

CLARK, Circuit Judge:

The question posed in this appeal is the applicability of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) as it has been interpreted to date. Following Henry Floyd, Jr.'s successful collateral attack, he was reconvicted for the same offense by a jury. A second and different judge then ordered him imprisoned for a period longer than the sentence which had been initially imposed, and failed to specifically credit the time already served by Floyd on his first conviction. In imposing the more punitive sentence, the second judge specifically disavowed and affirmatively avoided any knowledge of the length of the earlier sentence. Notwithstanding this prophylactic action, the second sentencing judge has run afoul of Pearce's rule. We remand for resentencing.

Following his plea of guilty to charges of two separate sales of heroin, Henry Floyd, Jr., was sentenced by United States District Judge J. Foy Guin to ten years imprisonment plus a special parole term of three years under 21 U.S.C. § 841(b)(1)(A). ¹ On Floyd's 28 U.S.C. § 2255 petition, Judge Guin ordered Floyd's sentence vacated since Floyd had not been advised of the special parole term prior to acceptance of the plea. After Judge Guin withdrew Floyd's guilty plea and entered a plea of not guilty, Floyd was accorded a jury trial before United States District Judge Clarence W. Allgood. The jury found him guilty on both counts and Judge Allgood sentenced him to fifteen years imprisonment and a special parole term of three years on each count, to run concurrently. ²

Floyd and his attorneys ³ raise several issues on appeal which we find to be without merit. ⁴ Only the application of North Carolina v. Pearce warrants discussion.

Floyd argues that his higher reconviction sentence violated both rules of Pearce. First, the judge failed to base his action on objective information of identifiable conduct by Floyd occurring after the time of the original sentence in order to justify the stiffer sentence. Second, the judge failed to give him credit for the time he had already served on his first sentence.

Judge Allgood's relevant comments at sentencing were as follows:

Well, I have, as I told you in chambers, in this particular case as I do in all cases in determining punishment I talked pretty freely with the defense counsel, District Attorney, Probation Officer. I read the pre-sentence report and need all the help I can get. It's not a pleasant duty for a judge to have to sentence anybody to the penitentiary, however, it's the duty that he does have.

In considering what sentence I was going to impose in this case, I have specifically asked and told everybody that I did not want to know anything about the circumstances in connection with his plea before another judge in this court. I understand and all I know about it is that he entered a plea of guilty and that it was later set aside. The fact that he has stood trial in no way influences my sentence and my thinking of what sentence he should receive, because every man has a right to trial and I sure don't ever get mad at anybody for going to trial.

I'm basing my decision as to the sentence in this case on what I have done in similar cases in the past, on the evidence that was presented to me here in this courtroom and on the offense, what it was, purely and simply.

Absent vindictiveness or the possibility of vindictiveness, more severe sentences imposed following reconviction are constitutionality valid. Chaffin v. Stynchcombe, 412 U.S. 17, 29, 93 S.Ct. 1977, 1984, 36 L.Ed.2d 714 (1973); Colten v. Kentucky, 407 U.S. 104, 116, 92 S.Ct. 1953, 1960, 32 L.Ed.2d 584 (1972); North Carolina v. Pearce, 395 U.S. 711, 723, 89 S.Ct. 2072, 2079, 23 L.Ed.2d 656 (1969).

Blackledge v. Perry, 417 U.S. 21, 27, 94 S.Ct. 2098, 2102, 40 L.Ed.2d 628 (1974), most recently reaffirmed this principle thus:

The lesson that emerges from Pearce, Colten and Chaffin is that the Due Process Clause is not offended by all possibilities of increased punishment upon retrial after appeal, but only by those that pose a realistic likelihood of "vindictiveness" . . . The question is whether the opportunities for vindictiveness in this situation are such as to impel the conclusion that due process of law requires a rule analogous to that of the Pearce case.

Blackledge reiterated the holding of Pearce as follows:

The rationale of our judgment in the Pearce case, however, was not grounded upon the proposition that actual retaliatory motivation must inevitably exist. Rather, we emphasized that "since the fear of such vindictiveness may unconstitutionally deter a defendant's exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge." 395 U.S. at 725, 89 S.Ct. at 2080.

417 U.S. at 28, 94 S.Ct. at 2102. Where a realistic likelihood of vindictiveness exists, Pearce lays down this requirement:

In order to assure the absence of such a motivation, we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal.

395 U.S. at 726, 89 S.Ct. at 2081.

The meaning of Pearce for today's case must take into account that the second sentencing judge in Pearce was a different judge from the first sentencing judge. ⁵ But here, unlike Pearce, the record shows that the second sentencing judge affirmatively avoided knowledge of the original sentence. Such lack of knowledge is clearly probative of an absence of actual vindictiveness. However, the broader question we face is whether, in and of itself, such intentional insulation (together with the judge's independent basis for his more severe sentence) so negates the possibility of vindictiveness as to render unnecessary Pearce's prophylactic showing that subsequent conduct was the basis for the increase.

In Chaffin v. Stynchcombe, the Court approved the imposition of a longer sentence by a second jury under a Georgia court system procedure which allows juries to both determine guilt and fix punishment. This approval was premised upon four factors which assured that the hazard or possibility of vindictiveness was absent. The second jury: (1) will not be informed of the prior sentence, (2) will not know whether the prior trial was on the same charge, or whether it resulted in a conviction or mistrial, (3) is a separate and distinct judicial authority having no personal stake in the prior action and no motivation for self-vindication, (4) is unlikely to be sensitive to the institutional interests that might occasion higher sentences by a judge desirous of discouraging what he regards as meritless appeals. See also Colten v. Kentucky, which approved a harsher sentence as a result of a trial de novo by a different court in a two-tier court system.

The second and fourth of the insulations which Chaffin found adequate are missing when a second, different judge acts, albeit without any knowledge of what the first sentence may have been. We unhesitatingly and unqualifiedly accept the fact that Judge Allgood knew nothing of what length of sentence Judge Guin had imposed upon Floyd pursuant to his plea of guilty. Although this fact bears heavily upon the lack of actual prejudice, we need not decide that issue. The principle of Pearce stems from a different premise when the potential for vindictiveness appears real and present the right to direct or collateral review is also impermissibly stifled. It is the ground of potential or likely vindictiveness which makes the case at bar indistinguishable from Pearce.

As Part II C of Chaffin emphasizes, every retrial carries the hazard of an increased sentence and thus could be said to deter a defendant in choosing to assert his right to appeal from or collaterally attack his conviction. But this hazard does not bar every retrial.

Recent Supreme Court rulings teach us, in making the critical evaluation of potential vindictiveness, to look past the individuals involved or the precise facts present in a particular situation to determine...