U.S. v. Henry, s. 81-4107

• Decision Date: 14 July 1982
• Docket Number: 81-4254,Nos. 81-4107,s. 81-4107
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Richard Bullock HENRY a/k/a Imari Abubakari Obadele, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Wayne JAMES, a/k/a Offoga Quaddus, and Thomas Norman, a/k/a Hekima Ana, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 403

680 F.2d 403

UNITED STATES of America, Plaintiff-Appellee, v. Richard Bullock HENRY a/k/a Imari Abubakari Obadele,

Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Wayne JAMES, a/k/a Offoga Quaddus, and Thomas Norman, a/k/a

Hekima Ana, Defendants-Appellants.

Nos. 81-4107, 81-4254.

United States Court of Appeals, Fifth Circuit.

July 14, 1982.

Fred L. Banks, Jr., Jackson, Miss. (Court-appointed), for Henry.

James B. Tucker, Asst. U.S. Atty., Jackson, Miss., Patty Merkamp Stemler, U.S. Dept. of Justice, Washington, D.C., for U.S.

Barbara Y. Phillips, San Francisco, Cal., for James and Norman.

Appeals from the United States District Court for the Southern District of Mississippi.

Before GEE and JOHNSON, Circuit Judges, and VAN PELT ^*, District Judge.

VAN PELT, District Judge:

The issue before this court on appeal is whether, after a defendant has successfully brought a Rule 35 motion to correct an illegal sentence challenging only one count out of multiple counts, the sentencing court may vacate not only the sentence on the illegal challenged count, but also increase the sentence on an unchallenged count in order to achieve the trial court's original sentencing intent. Defendants contend the trial court erred because (1) under Fed.R.Crim.P. 35 the trial court had no authority to modify a legal sentence that had not been challenged; and (2) even if the trial court had the authority to modify the sentence on the unchallenged count, to do so would constitute a violation of the fifth amendment's double jeopardy and due process clauses.

The facts leading up to the arrest and convictions of these defendants are fully set out in a previous opinion of this court entitled United States v. James, 528 F.2d 999 (5th Cir.), cert. denied, 429 U.S. 959, 97 S.Ct. 382, 50 L.Ed.2d 326 (1976). Because this is the third time these defendants have been sentenced, and the cases have appeared before us on appeal previously, it may be beneficial to recount the rather lengthy procedural history which brings us here today.

I. PROCEDURAL HISTORY

Henry and James, together with seven other members of the Republic of New Africa, were indicted on October 22, 1971, after assaulting federal officers with firearms. The indictment charged them in Count I with a conspiracy in violation of 18 U.S.C. § 371. ¹ The object of the conspiracy was to forcibly assault federal officers engaged in the performance of their duties, to use firearms to commit the assault, and to unlawfully possess unregistered firearms. The overt acts of the conspiracy count constituted the other substantive counts of the indictment. Thus, Count II charged all defendants with using weapons to assault federal officers in violation of 18 U.S.C. §§ 111 and 2. ² Count III charged all defendants with using a firearm to commit a felony in violation of 18 U.S.C. §§ 924(c)(1) and (2). ³ Count IV charged only the defendant James with possessing an unregistered machinegun in violation of 26 U.S.C. § 5861(d). ⁴ Henry and James were convicted on each of the counts for which they were indicted. On the Count I conspiracy charge each received 5 years, on the Count II armed assault charge each received 7 years to run concurrently with Count I, and on the Count III felony firearm charge each received 5 years to run consecutive to the sentence on Counts I and II. Additionally, James was sentenced to 5 years on Count IV to run concurrently with Counts I and II. Thus, the total number of years to be served by defendants was 12. Defendants appealed and the sentences were affirmed by this court in United States v. James, supra.

Subsequently, this court decided United States v. Shillingford, 586 F.2d 372 (5th Cir. 1978) which held that a defendant could not be sentenced under both § 924(c) and § 111. ⁵ Henry and James separately filed a Motion to Correct Illegal Sentence alleging that the sentence on Count III was contrary to the laws of the United States. Henry's motion was granted on March 12, 1979, and James' motion was granted November 1, 1979. ⁶ In both instances, the lower court vacated the Count II armed assault sentence and left intact the consecutive 5 year sentence on the Count III felony firearm charge for a total term of imprisonment of 10 years.

Defendants appealed separately to this court. Initially, a panel affirmed Henry's conviction on the basis that they were bound by Shillingford, supra, which had indicated that the lower court could choose to vacate either the § 111 or § 924(c)(1) conviction. United States v. Henry, 611 F.2d 983 (5th Cir. 1979). However, a rehearing en banc was granted, with the result that the sentence was vacated and remanded to the district court for further proceedings consistent with Busic v. United States, 446 U.S. 398, 100 S.Ct. 1747, 64 L.Ed.2d 381 (1980). United States v. Henry, 621 F.2d 763 (5th Cir. 1980) (en banc). A little over a month later, James' sentence was also vacated and remanded for consideration in light of the Busic decision.

In Busic, the Supreme Court determined that a person could not be sentenced under both § 924(c) and § 111. The Supreme Court further determined that § 111 should be given precedence in sentencing, and reversed and remanded "for proceedings consistent with this opinion...." Busic, supra 446 U.S. at 412, 100 S.Ct. at 1756. The Court expressed no opinion on the question of whether the district court could vacate the sentence on the § 111 count. ⁷

Faced a third time with considering a sentence for Henry, the district court filed a Memorandum Opinion on February 27, 1981, vacating the sentence on Count III, and reinstating the sentence on Count II but reducing it to five years instead of seven and making it consecutive instead of concurrent. The effect of this action was to reduce the overall term of the original sentence from 12 to 10 years; however, if the court had merely vacated the illegal sentence imposed on Count III as challenged by defendant, Henry would have been left with an aggregate sentence of seven years. The trial court indicated that its original sentencing intent was to require Henry to serve 12 years imprisonment. The court stated:

"If this Court had known that the Count Three sentence was illegal, that is, could have foreseen the holding in Busic, it would certainly have imposed a seven year sentence on Count Two to run consecutively with the five year sentence imposed on the conspiracy count (Count One). However, we could not foresee the holding in Busic, and of course, neither could the Court of Appeals for the Fifth Circuit in its original opinions in Shillingford and the instant case, at the time it initially ruled on the appellants' attacks on their sentences."

"This Court feels that inasmuch as it determined the gravity of the offense in question to warrant the twelve year sentence originally imposed upon this defendant, to require him to serve a ten year sentence, in view of the fact that we were required to vacate his Count Three sentence, does not violate the double jeopardy clause, nor does it result in any inequity or unfairness and certainly does not exceed the maximum sentence prescribed by the Congress."

In arriving at this result, the lower court determined that prior case law from this circuit and others was not applicable. An order which incorporated this memorandum was entered in Henry on March 25, 1981, correcting the sentence. Subsequently, on May 28, 1981, the lower court entered a similar order in James incorporating the memorandum opinion in Henry.

The two cases were consolidated on appeal to this court. The appeal was initially argued before another panel of this court on November 18, 1981; supplemental briefs were requested on the issue of whether the court had jurisdiction under Rule 35 to modify the unchallenged sentence on Count II. This having been done, the case is once again before us for review.

II. RULE 35 JURISDICTION

Rule 35 provides as follows:

"(a) Correction of sentence. The court may correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner within the time provided herein for the reduction of sentence.

"(b) Reduction of sentence. The court may reduce a sentence within 120 days after the sentence is imposed, or within 120 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within 120 days after entry of any order or judgment of the Supreme Court denying review of, or having the effect of upholding a judgment of conviction. The court may also reduce a sentence upon revocation of probation as provided by law. Changing a sentence from a sentence of incarceration to a grant of probation shall constitute a permissible reduction of sentence under this subdivision."

Appellants contend that the sentence on Count II was not illegal since it was within the statutory limits. Furthermore, appellants contend that (1) the Count II sentence was not imposed in an illegal manner, (2) changing it from concurrent to consecutive constituted an increase, not a reduction, in the sentence, and (3) even if it were considered a reduction in sentence, because the term of years was changed from seven to five, the reduction occurred well outside the 120 day time limitation. In sum, they contend that the court had no jurisdiction to alter its sentence on Count II.

The government contends that the word "sentence" is commonly understood to mean both the penalties imposed on each separate count, and also the total punishment imposed by the court for all related counts of an indictment. The government contends that if a part of the court's total sentence is vacated, "the court's entire sentencing plan is affected" and therefore

"Rule 35 should permit the district court to correct that illegal sentencing scheme by adjusting the various penalties in a way that renders the sentence lawful and at the same time preserves the district court's...