U.S. v. Jackson

• Decision Date: 19 February 1991
• Docket Number: No. 90-8025,90-8025
• Citation: 923 F.2d 1494
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Larry William JACKSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1494

923 F.2d 1494

UNITED STATES of America, Plaintiff-Appellee, v. Larry William JACKSON, Defendant-Appellant.

No. 90-8025.

United States Court of Appeals Eleventh Circuit.

Feb. 19, 1991.

Bruce S. Harvey, Atlanta, Ga., for defendant-appellant.

Frederick Kramer, Asst. U.S. Atty., Savannah, Ga., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Georgia.

Before ANDERSON and EDMONDSON, Circuit Judges, and MORGAN, Senior Circuit Judge.

EDMONDSON, Circuit Judge:

Appellant Larry Jackson was tried, convicted, and sentenced on six counts arising out of a drug smuggling conspiracy. Six years later Jackson's sentences on two of the counts were modified because the prison terms originally imposed on those counts were illegally excessive. The illegal sentences were reduced, as was Jackson's overall period of incarceration under the resulting sentencing package. Jackson nonetheless appeals the reduction of his illegal sentences, arguing that the process used to correct them deprived him of his right of allocution--the right to be present and address the sentencing court formally before imposition of sentence. He further contends that when the court correcting his sentences went beyond reducing the length of the prison terms imposed for the challenged counts, making those terms consecutive to the term imposed for count one rather than concurrent as they had been before, the court went beyond its authority under Rule 35 and violated his double jeopardy rights. We affirm the sentences.

Only the prison terms Appellant Jackson received on four counts are relevant to this appeal: on count one, a RICO conspiracy charge, Jackson was sentenced to a term of twenty years; and on counts two, three, and four--all violations involving possession of more than 1,000 pounds of marijuana with intent to distribute--he was sentenced to terms of fifteen years each. The three fifteen-year terms were to be consecutive to each other, but concurrent to the twenty-year sentence for count one. Because the sentences on the two counts not relevant to this appeal were also concurrent to the count one twenty-year term, Jackson's total incarceration was to be for forty-five years.

Approximately six years after Appellant Jackson was sentenced, one of his co-defendants, Joseph Lightsey, brought a Rule 35 motion to correct Lightsey's sentences. Lightsey's motion challenged the legality of the fifteen-year terms imposed on counts two and three--the same counts two and three on which Jackson had been convicted and sentenced. The fifteen-year terms imposed for these counts were imposed pursuant to the penalties provision of 21 U.S.C.A. Sec. 841(b)(6), which provides for a maximum term of fifteen years where the violation involves a quantity of marijuana exceeding 1,000 pounds. The enactment date of section 841(b)(6) was not until September 1980, however; before that time, the penalty for possession of any amount of marijuana with intent to distribute was governed by section 841(b)(1)(B), providing for a maximum five-year prison term. Because the dates of the offenses in counts two and three were before the September 1980 enactment date, Lightsey argued that the fifteen-year sentences imposed for those counts violated the ex post facto clause. (The fifteen-year term imposed for count four was not challenged because the offense in count four occurred after section 841(b)(6) was enacted.) We accepted Lightsey's argument in United States v. Lightsey, 886 F.2d 304 (11th Cir.1989), declaring the challenged sentences illegal, vacating them, and remanding the case to the district court to correct Lightsey's sentences. Id. at 305.

Appellant Jackson, meanwhile, filed his own Rule 35 motion based on identical grounds; ¹ disposition of Jackson's motion was deferred pending our decision in Lightsey. After the opinion in Lightsey, the district court recognized that Jackson's sentences on counts two and three were unlawful and modified the sentences to provide for five-year terms on each of counts two and three, bringing the sentences in line with the statutory maximum penalty in effect when the offenses were committed. In addition, the district court's order provided that "[t]he sentence as to counts 2 and 3 shall run consecutively to each other and consecutively to the sentence imposed as to count 1." Thus, the net result of the correction of the sentences imposed on counts two and three was a reduction of Appellant Jackson's aggregate prison term from forty-five to thirty years. The order correcting Jackson's sentences was issued by the chief judge of the Southern District of Georgia, though he was not the judge who originally sentenced Jackson or presided at his trial. Jackson was given no opportunity to appear before the chief judge to present evidence or argument, nor to be present when his sentences were modified.

1. The Right of Allocution

Appellant Jackson first challenges the procedure by which his illegal sentences were reduced: because he was not allowed to be present with his attorney and address the court before issuance of the order correcting his sentences, he says that the process violated his rights under both the federal rules of procedure and the Constitution.

A defendant is entitled to be present when his sentence is imposed, Fed.R.Crim.P. 43(a); and this right to be present and speak is constitutionally based, United States v. Huff, 512 F.2d 66 (5th Cir.1975). ² Moreover, the defendant's right to be present extends to the imposition of a new sentencing package after an original sentencing package is vacated in its entirety on appeal and the case is remanded for resentencing. Johnson v. United States, 619 F.2d 366 (5th Cir.1980).

The established right to be present for sentencing--or even for resentencing under certain circumstances--however, does not translate into a right to be present whenever judicial action modifying a sentence is taken. Rule 43(a)'s requirement of the defendant's presence at imposition of sentence is conditioned by the clause "except as otherwise provided by this rule," and Rule 43(c) specifically includes "[a]t a reduction of sentence under Rule 35" in its listing of situations in which the presence of the defendant is not required. Fed.R.Crim.P. 43(c)(4).

This exception to the presence-at-sentencing requirement is logical and fair given the requirement's constitutional base and rationale: to ensure that at sentencing--a critical stage of the proceedings against the accused--the defendant has an opportunity to challenge the accuracy of information the sentencing judge may rely on, to argue about its reliability and the weight the information should be given, and to present any evidence in mitigation he may have. See Huff, 512 F.2d at 71; cf. Mempa v. Rhay, 389 U.S. 128, 133, 88 S.Ct. 254, 256, 19 L.Ed.2d 336 (1967). For an initial sentencing, or even a resentencing where an entire sentencing package has been vacated on appeal, a hearing at which the defendant is present with counsel will generally be necessary to accomplish this purpose. But in the context of a remedial reduction of sentence after a successful Rule 35 challenge to the legality of the original sentence, this necessary process has already occurred. There has already been a sentencing hearing at which the defendant had the opportunity to rebut evidence in the presentence investigation report and to present evidence in mitigation; the sentencing judge has made the necessary credibility determinations and exercised the necessary discretion to fashion a sentencing package which he has determined, in fact, is the appropriate penalty considering the defendant's conduct and level of culpability. If the prison terms imposed on some but not all of the counts are then held to be illegally long, the illegal terms must be reduced; but the whole process need not start anew. In constitutional terms, a remedial sentence reduction is not a critical stage of the proceedings; so, the defendant's presence is not required.

The process described above is exactly what happened here. Appellant Jackson was present and exercised his right to address the court formally before his original sentencing--and received prison terms of fifteen years on each of counts 2 and 3. These were the sentences which the sentencing judge believed were justified by the facts after hearing from the defendant. After the sentences on those counts were held illegal, the sentences were corrected; and the order of modification reduced the sentences, bringing them into conformity with the law at the time of Jackson's offense.

Because neither the language of the Rule 43 presence requirement nor its underlying rationale apply in this context, neither should the requirement. We, therefore, hold that, where the entire sentencing package has not been set aside, a correction of an illegal sentence does not constitute a resentencing requiring the presence of the defendant, so long as the modification does not make the sentence more onerous. ³ Cf. Caille v. United States, 487 F.2d 614 (5th Cir.1973) (correction of sentence adding mandatory special parole term makes it more onerous, so defendant's presence is required); Rust v. United States, 725 F.2d 1153, 1154 (8th Cir.1984) (vacating one of two sentences illegally imposed for same offense does not constitute resentencing requiring presence of defendant).

Jackson suggests that even if there is no general right to be present and address the court when a sentence is modified, he should have been entitled to do so because the judge issuing the modification order was not the original sentencing judge and was unfamiliar with the case. To support this position Jackson cites United States v. McGuinness, 769 F.2d 695 (11th Cir.1985) (judge who did not preside over trial and affirmatively revealed that he had not familiarized himself with trial transcript was precluded from imposing sentence), and United...