U.S. v. Hardesty, 90-30260

Decision Date10 March 1992
Docket NumberNo. 90-30260,90-30260
Citation958 F.2d 910
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Jude Somerset HARDESTY, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Paul S. Petterson, Asst. Federal Public Defender, Portland, Or., for defendant-appellant.

Baron C. Sheldahl, Asst. U.S. Atty., Portland, Or., for plaintiff-appellee.

Appeal from the United States District Court for the District of Oregon.

Before ALARCON, FERGUSON and HALL, Circuit Judges.

FERGUSON, Circuit Judge:

While serving a ten-year state prison term, defendant-appellant Hardesty was convicted in federal district court in 1984 of possessing a sawed-off shotgun in violation of 26 U.S.C. §§ 5861(d) & 5871. He was sentenced to a ten year term of imprisonment to run consecutively to the state prison sentence. Upon completing his state prison term in 1990, Hardesty filed a motion under 28 U.S.C. § 2255 and former Fed.R.Crim.P. 35(a), 1 contending that the consecutive sentence was "illegal." He requested that his sentence be reduced to time already served and, in the alternative, that probation be substituted for the federal sentence. He now appeals from the denial of this motion, and we affirm.

DISCUSSION
I. Consecutive Sentence

Hardesty's first argument is that the sentencing judge improperly ordered his federal sentence to run consecutively to the previously imposed state sentence. We review this legal issue de novo. United States v. Wills, 881 F.2d 823, 825 (9th Cir.1989). Hardesty relies upon United States v. Terrovona, 785 F.2d 767 (9th Cir.), cert. denied, 476 U.S. 1186, 106 S.Ct. 2926, 91 L.Ed.2d 553 (1986), where we held that a district court had no authority to order that the sentence be served either consecutively or concurrently but could only make a recommendation to the Bureau of Prisons. Id. at 770. We explained that the Bureau would then effectively decide the length of the sentence by designating where it would be served, but assumed that the Bureau would follow the court's recommendation. Id.

For its part, the government argues that the consecutive sentence was lawful, based on the authority of United States v. Thornton, 710 F.2d 513 (1983), which predated Terrovona. Thornton clearly holds that although former 18 U.S.C. § 3568 limits the authority of judges to order concurrent terms, there was no corresponding limit on their authority to order that sentences be served consecutively. Id. at 516. See also United States v. O'Brien, 789 F.2d 1344, 1346 (9th Cir.1986) (following Thornton ). The government contends that because the three-judge Terrovona panel did not have the authority to overrule an earlier decision, Thornton remains good law and the district court was correct in following it here.

Thornton and Terrovona are clearly in conflict. Normally, when faced with an irreconcilable intra-circuit conflict of this nature, the proper course would be to cal for an en banc panel to resolve the conflict. Atonio v. Wards Cove Packing Co., 810 F.2d 1477, 1478-79 (9th Cir.1987) (en banc), cert. denied, 485 U.S. 989, 108 S.Ct. 1293, 99 L.Ed.2d 503 (1988); Tornay v. United States, 840 F.2d 1424, 1427 n. 3 (9th Cir.1988). However, such a call is not required where, as here, the conflict may be reconciled or avoided. See United States v. Whitehead, 896 F.2d 432, 434 (9th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 342, 112 L.Ed.2d 306 (1990) (unnecessary to call for en banc review); United States v. Sotelo-Murillo, 887 F.2d 176, 179 (9th Cir.1989).

On occasion, we have also found it appropriate to follow one of two conflicting lines of authority without calling for en banc review. This is especially true where, as here, Congress has undermined one of the conflicting cases by amending a substantive statute. See, e.g. Landreth v. Commissioner, 859 F.2d 643, 648 (9th Cir.1988). See also State of Cal., Dept. of Health Servs. v. U.S. Dept. of Health & Human Servs., 853 F.2d 634, 638 (9th Cir.1988) (panel may disregard earlier decision if substantive law has changed); United States v. Magana, 797 F.2d 777, 779 (9th Cir.1986).

In a closely analogous situation, we are asked to make "the unsatisfactory choice between two opposing lines of authority, neither of which has an unimpaired claim to being the law of the circuit" without the aid of an intervening decision by Congress or the Supreme Court. Greenhow v. Sec. of Health & Human Servs., 863 F.2d 633, 636 (9th Cir.1988). In such cases, a panel may follow the rule which has "successfully posed as the law of the circuit for long enough to be relied upon." Id. See also Royal Dev. Co. v. NLRB, 703 F.2d 363, 368-69 (9th Cir.1983) (panel bound by circuit authority, regardless of alternate views).

In the case at bar, both these special situations exist, and each counsels us to follow the earlier Thornton case rather than Terrovona. Consecutive sentencing has been permitted by the law of this circuit at least since 1941. See Gunton v. Squier, 185 F.2d 470, 471 (9th Cir.1950) (approving consecutive sentence); Hayden v. Warden, 124 F.2d 514 (9th Cir.1941) (same). In Gunton, we noted:

It is a well-recognized rule of law that a person who has violated the criminal statutes of both the Federal and State Governments may not complain of the order in which he is tried or punished for such offenses. Each is a sentence unto itself, otherwise there would be no orderly procedure in handling cases of this kind between two sovereigns.

Gunton, 185 F.2d at 471. Since our restatement of this rule in Thornton, our own caselaw and that of our sister circuits have been nearly unanimous in following it. In comparison, our research has revealed no appellate cases that have approved of the Terrovona analysis. See, e.g. United States v. O'Brien, 789 F.2d 1344, 1346 (9th Cir.1986) (following Thornton ); United States v. Eastman, 758 F.2d 1315, 1318 (9th Cir.1985) (discussing Thornton ).

Eight of our sister circuits agree. "The federal district court has the undoubted power to impose a federal sentence that is not to commence until service of an existing state sentence for an unrelated offense has been completed." Pinaud v. James, 851 F.2d 27, 30 (2nd Cir.1988). See also Harding v. United States, 851 F.2d 1305, 1306 (11th Cir.1988) (authority of federal judges to impose consecutive sentences well-settled); Salley v. United States, 786 F.2d 546, 547 (2d Cir.1986) (citing cases). See also United States v. Campisi, 622 F.2d 697, 699 (3rd Cir.1980); Causey v. Civiletti, 621 F.2d 691, 694 (5th Cir.1980) (citing Gunton, 185 F.2d at 471); Cox v. United States ex rel. Arron, 551 F.2d 1096, 1098 (7th Cir.1977) (trial court has "inherent power" to impose consecutive sentences) (citing McKee v. United States, 289 F.2d 557 (7th Cir.1961)); United States v. Lee, 500 F.2d 586, 587-88 (8th Cir.), cert. denied, 419 U.S. 1003, 95 S.Ct. 322, 42 L.Ed.2d 279 (1974); Anderson v. United States, 405 F.2d 492, 493 (10th Cir.), cert. denied, 394 U.S. 965, 89 S.Ct. 1318, 22 L.Ed.2d 567 (1969); Jervis v. United States, 382 F.2d 592, 593 (1st Cir.1967) ("The federal court had a clear right to recognize and accede to the state custody."); Green v. United States, 334 F.2d 733, 736 (1st Cir.1964) ("no impropriety" in imposing federal sentence consecutive to state sentence), cert. denied, 380 U.S. 980, 85 S.Ct. 1345, 14 L.Ed.2d 274 (1965).

By contrast, Terrovona has been expressly rejected by two circuits, Harding v. United States, 851 F.2d 1305, 1306 (11th Cir.1988); United States v. Pungitore, 910 F.2d 1084, 1118 (3rd Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 2009, 114 L.Ed.2d 98 (1991), and followed only by a single district court, United States v. Posey, 665 F.Supp. 848, 850 (C.D.Cal.1987). Thus, Terrovona stands alone in failing to recognize the rule enunciated in Thornton as the law of the circuit. Instead, it erroneously assumed that the district court had no authority to order that the sentence be served consecutively, completely ignoring Thornton and relying on three unrelated cases, United States v. Williams, 651 F.2d 644 (9th Cir.1981), United States v. Segal, 549 F.2d 1293 (9th Cir.), cert. denied, 431 U.S. 919, 97 S.Ct. 2187, 53 L.Ed.2d 231 (1977), and United States v. Myers, 451 F.2d 402 (9th Cir.1972).

Unfortunately, none of these three cases actually stand for the proposition for which Terrovona cites them. On the contrary, they focus on the issue of whether a district court could order a concurrent sentence under former 18 U.S.C. § 3568. 2 See, e.g. Myers, 451 F.2d at 404; Segal, 549 F.2d at 1301. Although we have repeatedly applied the statute to bar concurrent federal and state sentences by mandating that federal sentences must be served in federal institutions, no corresponding prohibition applies to consecutive sentencing. In fact, the holding in Segal itself actually affirmed a consecutive sentence similar to that imposed here. Segal, 549 F.2d at 1301.

Terrovona's reliance on Myers is similarly unfounded. There, we permitted a defendant serving a state sentence to invalidate his guilty plea because he was not informed that his federal sentence must run consecutively under 18 U.S.C. § 3568. Myers, 451 F.2d at 404. Both Segal and Myers implicitly acknowledge that the practical effect of § 3568 is to mandate consecutive sentencing in most cases.

Williams is the only case cited in Terrovona which actually addresses the issue of whether judges may order consecutive sentences. However, it focused on whether the consecutive federal sentence ordered after a retrial was unduly severe under North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). Williams, 651 F.2d at 646-48. There, we reversed the consecutive aspect of the sentence because it was improperly based on conduct which occurred before the initial sentencing, not because it was beyond the judge's authority. Id. at 647-48. In a footnote, the panel speculated that...

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