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

• Citation: 709 F.2d 298
• Decision Date: 28 June 1983
• 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: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 298

709 F.2d 298

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.

June 28, 1983.

Fred L. Banks, Jr., Jackson, Miss., for defendant-appellant in No. 81-4107.

Barbara A. Phillips, San Francisco, Cal., for defendants-appellants in No. 81-4254.

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

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

Before CLARK, Chief Judge, and BROWN, GEE, RUBIN, REAVLEY, POLITZ, RANDALL, TATE, JOHNSON, WILLIAMS, GARWOOD, JOLLY and HIGGINBOTHAM, Circuit Judges.

RANDALL, Circuit Judge:

We are called upon to affirm or reverse the judgment of the district court increasing a valid sentence--which this court affirmed long ago and which the defendant here had already begun to serve--solely because the defendant had successfully challenged, under rule 35 of the Federal Rules of Criminal Procedure, another sentence that had been imposed in connection with the same criminal transaction. ¹ The case arises indirectly out of a twenty-minute machine gun and tear gas shoot-out between certain members of the so-called Republic of New Africa and state and federal officers on August 18, 1971. Its resolution turns on the meaning of rule 35, the present-day codification of the old common-law motion to correct an illegal sentence. For the reasons set out below, we vacate the district court's order and remand the case for further proceedings. ²

I. THE FACTS.

Although this case has been before us in one form or another virtually constantly for the past eight years, the facts relevant to this particular appeal can be readily summarized.

For his various activities in connection with the shoot-out of August 18, defendant Richard Bullock Henry was convicted in the district court of, first, conspiring to assault federal officers and to use a firearm in the commission of a felony in violation of 18 U.S.C. Sec. 371 (1976); second, assaulting and interfering with federal officers in violation of 18 U.S.C. Sec. 111; and third, using a firearm to commit a felony in violation of 18 U.S.C. Sec. 924(c)(1). ³ The trial court sentenced Henry to five years on the first conviction, seven on the second, and five on the third, but since the first two sentences were concurrent the total sentence was seven plus five, or twelve years. Henry duly appealed his convictions and sentences under all three charges. This court affirmed them all in an opinion dated March 19, 1976. 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). This court's mandate affirming "[a]ll [of Henry's] convictions" issued the same day, and Henry began to serve his sentences on or about December 29, 1976.

There matters remained until 1978, when the Supreme Court handed down its opinion in Simpson v. United States, 435 U.S. 6, 98 S.Ct. 909, 55 L.Ed.2d 70 (1978), and this court handed down its opinion in United States v. Shillingford, 586 F.2d 372 (5th Cir.1978). As it was first interpreted (over a vigorous dissent) in Shillingford, Simpson prohibited the government from charging a defendant with violating both section 924(c)(1) and section 111 because both statutes proscribe essentially the same conduct and because, as a matter of statutory construction, Congress had not intended that both apply at the same time. In the footnote that provoked the dissent, this court further noted in Shillingford that the district court on remand would not have to confine itself to vacating the sentence under section 924(c)(1), but could choose, at its option, to vacate either the section 924(c)(1) or the section 111 sentence. 586 F.2d at 376 n. 7. Taking note of the Simpson decision, Henry filed under Federal Rule of Criminal Procedure 35 a motion to vacate his sentence under section 924(c)(1). He insisted, however, that the district court did not have the option of vacating either the section 924(c)(1) or the section 111 sentence, but rather had the power to vacate only the sentence that he was challenging as illegal, i.e., the section 924(c)(1) sentence. ⁴

The district court decided Henry's rule 35 motion on March 7, 1979. The court's short, two-page order cited Shillingford and vacated Henry's seven-year sentence under section 111. This left intact his five-year consecutive sentences under sections 371 and 924(c)(1), which meant that his over-all term of imprisonment had been reduced from twelve to ten years. Henry immediately appealed, but a panel of this court affirmed on the ground that it was "controlled by the directions" of the earlier decision in Shillingford, which had authorized the "either" approach to the problem. United States v. Henry, 611 F.2d 983, 984 (5th Cir.1979). Henry then filed a timely petition for rehearing en banc.

After we had voted for the first time to hear Henry's case en banc but before oral argument could be scheduled, the Supreme Court handed down its decision in Busic v. United States, 446 U.S. 398, 100 S.Ct. 1747, 64 L.Ed.2d 381 (1980). Busic held, in essence, that Henry and the dissent in Shillingford had been correct, and that when a defendant engages in conduct that arguably violates both section 111 and section 924(c)(1), he may be convicted and sentenced only under section 111. This en banc court accordingly vacated Henry's "sentence" and remanded the case to the district court for further proceedings consistent with Busic. United States v. Henry, 621 F.2d 763 (5th Cir.1980) (en banc). ⁵

On March 20, 1981, the district court rendered the judgment from which Henry now appeals. The judgment in effect proceeded in three steps. First, it vacated the five-year sentence under section 924(c)(1) and reinstated the seven-year sentence under section 111, thus leaving Henry with concurrent sentences of five and seven years for a total of seven years. Second, upon an oral motion from the government, it altered the seven-year sentence to have it run consecutively with the first, for a new total of twelve years. And third, it reduced the seven-year sentence to five years, for a final effective total of ten years. In so doing, the district court specifically acknowledged that this court, in remanding the case for sentencing in accordance with Busic, did not vacate the sentence imposed under count two of the indictment or the entire sentence imposed under all three counts. The court also acknowledged the government's concession that Henry had attacked only the legality of his sentence on count three. ⁶ The district court embarked upon its three-step procedure, it said, in order to carry out its original sentencing intent, which was that the defendant be seriously dealt with in accordance with the seriousness of his crimes.

Henry again appealed to this court. He did not challenge the district court's power to reinstate the original sentence under section 111, but he insisted that that was all the court could do. He particularly urged that the court could not alter the original seven-year sentence under section 111 by making it consecutive with that under section 371 because the court did not have jurisdiction to increase a sentence that was, in fact, perfectly legal. The panel disagreed and held that if one sentence in a multipart sentencing scheme is illegal, then the entire scheme is illegal and may be altered according to the discretion of the trial court. 680 F.2d at 412.

Henry then successfully petitioned--for the second time--to have his case reheard by the full en banc court. He continues to argue that the district court had no jurisdiction to alter the legal sentence under section 111, which he had already begun to serve and which he had never even challenged. The government, on the other hand, argues that the allocation of years between the parts of any multipart conviction is largely fictional, and that judges really sentence defendants for criminal transactions, viewed as a whole, and not merely for the various hypertechnically defined components of a multipart verdict of conviction. Strict adherence to the original allocation of years between the various offenses, runs the government's argument, could easily result in giving Henry an ill-deserved three-year windfall by virtue of his appeal. (Three years is the difference between the ten-year sentence that the government thinks Henry deserves, in light of the sentencing court's original intent, and the seven-year sentence Henry thinks he is required to be given if his section 924(c)(1) conviction is vacated in accordance with Busic.) In the government's view, the point is not that the effective number of years that Henry is required to serve under the first two convictions has been increased from seven to ten years; rather, the point is that the sentence for the entire transaction has been reduced from twelve to ten years. Henry has been rewarded, not penalized, for bringing his motion under rule 35. This view, the government concludes, does no more than take into account the day-to-day reality of how most trial judges actually pass sentence.

We disagree. We think that experienced federal district judges are well aware that they cannot revise upward sentences on counts, already affirmed on appeal, when other counts are vacated under rule 35, and that they take this fact into account in constructing their overall sentencing schemes. However, even if we concede, arguendo, that the government's view of what goes on in the heads of many sentencing judges is correct, we are not willing to concede that the three-year decrease in Henry's total sentence in issue here is an undeserved "windfall...