U.S. v. Patterson

• Decision Date: 08 December 1988
• Docket Number: No. 88-1497,88-1497
• Parties: UNITED STATES of America, Appellant, v. John W. PATTERSON, Jr., Defendant, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 595

882 F.2d 595

UNITED STATES of America, Appellant, v. John W. PATTERSON, Jr., Defendant, Appellee.

No. 88-1497.

United States Court of Appeals First Circuit.

Heard Dec. 8, 1988.

Decided Aug. 23, 1989.

As Amended Aug. 25, 1989.

Cerise Lim-Epstein, Asst. U.S. Atty., with whom Wayne A. Budd, U.S. Atty., Boston, Mass., was on brief for appellant.

James S. Dilday, with whom Grayer, Brown & Dilday and Elizabeth D. Shackford, Boston, Mass., were on brief for defendant, appellee.

Before CAMPBELL, Chief Judge, BOWNES, and TORRUELLA, Circuit Judges.

ON PETITION FOR REHEARING AND PETITION FOR WRIT OF MANDAMUS

BOWNES, Circuit Judge.

The government appealed from the district court's determination that the prior convictions of defendant, John W. Patterson, Jr., for breaking and entering under Mass.Gen.L. ch. 266, Secs. 16, 18 did not qualify as predicate offenses for sentence enhancement pursuant to the Armed Career Criminal Act (ACCA), 18 U.S.C. Sec. 924(e). After we issued an opinion reversing the district court, we withdrew the opinion and ordered a rehearing on the issue of whether the government had a right to appeal the sentence in this case.

We now hold that the government did not have a right to appeal the sentence of the district court, but under our mandamus authority reverse on the merits and order resentencing.

I. BACKGROUND

Patterson was indicted for violation of 18 U.S.C. Sec. 922(g)(1) ¹--a felon in possession of a firearm which had been shipped in interstate commerce. When he was arraigned, the government notified him that if he were convicted, it would seek an enhanced sentence under 18 U.S.C. Sec. 924(e)(1) because he had three previous convictions, each a "violent felony." ² After one day of trial, Patterson pleaded guilty to the violation of 18 U.S.C. Sec. 922(g)(1).

The district court sentenced Patterson to five years, to be served consecutively to the state sentence he is presently serving, and a special assessment of $50.00. The government appealed. ³ Neither the government nor Patterson addressed the issue of appellate jurisdiction. On April 26, 1989, we issued an opinion which held "that both Massachusetts breaking and entering statutes are predicate crimes" and remanded for resentencing. Shortly thereafter, our attention was drawn to the case of United States v. Hundley, 858 F.2d 58 (2d Cir.1988), in which the Second Circuit held in a case also involving a government appeal under the ACCA, that it lacked appellate jurisdiction. Concerned about whether we had appellate jurisdiction, we withdrew our opinion, vacated the judgment, and ordered a rehearing limited to briefing on the issue of the government's right to appeal the sentence in this case.

At the same time the government filed its brief with respect to appellate jurisdiction, it also filed a petition for a writ of mandamus under 28 U.S.C. Sec. 1651(a). ⁴

II. APPELLATE JURISDICTION

It is well established that "[t]he government has no right of appeal in criminal cases except where a statute expressly grants such a right." United States v. Kane, 646 F.2d 4, 5 (1st Cir.1981); see also United States v. Levasseur, 846 F.2d 786, 787 (1st Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 232, 102 L.Ed.2d 222 (1988). The Second Circuit has expanded upon this point:

It is fundamental that "the United States has no right of appeal in a criminal case absent explicit statutory authority." United States v. Scott, 437 U.S. 82, 84-85, 98 S.Ct. 2187, 2190, 57 L.Ed.2d 65 (1978). This rule is based on the well-settled principle in federal jurisprudence that "appeals by the Government in criminal cases are something unusual, exceptional, not favored." Carroll v. United States, 354 U.S. 394, 400, 77 S.Ct. 1332, 1336, 1 L.Ed.2d 1442 (1957). Additionally, the policy "has deep roots in the common law, for it was generally understood, at least in this country, that the sovereign had no right to appeal an adverse criminal judgment unless expressly authorized by statute to do so." Arizona v. Manypenny, supra, 451 U.S. at 245, 101 S.Ct. [1657] at 1666 [68 L.Ed.2d 58 (1981) ] (footnote omitted).

Hundley, 858 F.2d at 61 (citations omitted).

The ACCA does not explicitly provide for an appeal by the government from a district court's refusal to impose an enhanced penalty. The government argues that its right to appeal stems from either of two more general statutes: 18 U.S.C. Sec. 3731 ⁵ or 28 U.S.C. Sec. 1291. ⁶ In Hundley, 858 F.2d 58, the Second Circuit rejected both of these arguments. See also United States v. Palmer, 871 F.2d 1202, 1209 (3d Cir.1989) (In ACCA cases, "[t]he government ... has no authority to take an appeal from a sentencing order."). 18 U.S.C. Sec. 3731 does not explicitly include sentencing orders within the categories of orders appealable by the government. The circuits are split on the issue of whether Sec. 3731 permits government appeals from sentencing orders, see Hundley, 858 F.2d at 62 (citing cases on both sides of the issue), and this Circuit has not addressed the issue. ⁷ We adopt the Second Circuit's analysis as to whether sentencing orders fit into Sec. 3731.

We agree with those courts that have held that sentencing orders are not appealable by the Government under section 3731. The statute plainly limits appeals by the United States to specified categories of district court orders--those (1) dismissing an indictment or granting a new trial, (2) suppressing evidence or requiring the return of seized property, and (3) relating to the temporary release of a person charged or convicted of an offense. Sentencing orders are not included in the statute, nor are they even similar to any of the types of orders that are included. In light of the statute's precisely drawn provisions and the well-settled principle that Government appeals must be explicitly authorized by Congress, this conspicuous absence is highly significant.

We are further impressed by the fact that, as noted above, Congress has expressly authorized Government appeals of sentences in some enhancement statutes, e.g., 18 U.S.C. Secs. 3575, 3576 (dangerous special offenders), 21 U.S.C. Sec. 849(h) (dangerous special drug offenders), but not in others, e.g., 18 U.S.C. Sec. 924(e) (armed career criminals). This distinction would be superfluous if Congress had intended section 3731 to allow the Government to appeal all sentences. Finally, we note that when Congress undertook a wholesale revision of sentencing law in the Sentencing Reform Act of 1984, it authorized Government appeals from any sentence "in violation of law." Pub.L. No. 98-473, Sec. 213(a), 98 Stat. 2011 (codified at 18 U.S.C. Sec. 3742(b)(1) (Supp. IV 1986)). This addition to the Criminal Code " 'suggests that Congress understood the preexisting law to provide that such [sentencing] orders were not appealable.' " United States v. Horak, supra, 833 F.2d [1235] at 1248 n. 12 [7th Cir.1987] (quoting Government of the Virgin Islands v. Douglas, 812 F.2d 822, 831 n. 9 (3d Cir.1987)).

Hundley, 858 F.2d at 62-63 (other citations omitted; emphasis in original).

The government argues that the sweep of Sec. 3731 should be construed in light of the Supreme Court's statement that "Congress intended to remove all statutory barriers to Government appeals and to allow appeals whenever the Constitution would permit." United States v. Wilson, 420 U.S. 332, 337, 95 S.Ct. 1013, 1019, 43 L.Ed.2d 232 (1975); see also United States v. Scott, 437 U.S. 82, 83, 98 S.Ct. 2187, 2189, 57 L.Ed.2d 65 (1978) (quoting Wilson ); United States v. Martin Linen Supply Co., 430 U.S. 564, 568, 97 S.Ct. 1349, 1353, 51 L.Ed.2d 642 (1977) (same).

We have, however, stated that the Court's statement "must be read in context." Kane, 646 F.2d at 6. We went on to hold that "[w]ithout some indication that the Court considered the[ ] implications of the proposed interpretation, we do not read the cited language in Martin Linen and Wilson as giving the government authority to appeal from decisions and orders of a kind different from those described in the second paragraph of section 3731 [orders suppressing or excluding evidence.]" Id. at 7. In Hundley, the Second Circuit also rejected an argument based on the Supreme Court's broad language: "Wilson does not purport to say that the government may appeal from orders such as sentencing orders that do not involve the dismissal of a prosecution and are not included in other section 3731 categories." Hundley, 858 F.2d at 63.

Although Sec. 3731 is to be "liberally construed to effectuate its purposes," it cannot be read to include government appeals from sentencing orders. We think this point is highlighted by two other congressional sentencing actions: (1) express authorization of government appeals in other sentence enhancement statutes, and (2) express authorization of government appeals under the Sentencing Guidelines. See Hundley, 858 F.2d at 63.

The government alternately contends that we have jurisdiction under 28 U.S.C. Sec. 1291, set forth at note 7, supra. As a general rule, however, "the Court has reaffirmed that the Federal Government enjoys no inherent right to appeal a criminal judgment, and that the grant of general appellate jurisdiction, now contained in 28 U.S.C. Sec. 1291, does not authorize such a federal appeal. DiBella v. United States, 369 U.S. 121, 130, 82 S.Ct. 654, 659, 7 L.Ed.2d 614 (1962); Carroll v. United States, 354 U.S. 394, 400-403, 77 S.Ct. 1332, 1336-38, 1 L.Ed.2d 1442 (1957)." Arizona v. Manypenny, 451 U.S. 232, 246-47, 101 S.Ct. 1657, 1666-67, 68 L.Ed.2d 58 (1981) (other citations omitted); see also Hundley, 858 F.2d at 64. The Supreme Court has, however, permitted appeals under Sec. 1291 in criminal cases on a basis similar to the "collateral order" doctrine of civil cases.

[C]ertain orders relating to a criminal case may be found to possess sufficient independence from the main course of the prosecution to warrant treatment as plenary orders, and thus be...