U.S. v. Shavers
| Decision Date | 22 June 1987 |
| Docket Number | No. 86-5051,86-5051 |
| Citation | 820 F.2d 1375 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Larry SHAVERS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Julius H. Corpening, II, Wilmington, N.C., on brief, for defendant-appellant.
Lee Rangeley Wallace, Dept. of Justice, Washington, D.C., (Samuel T. Currin, U.S. Atty., Raleigh, N.C., on brief), for plaintiff-appellee.
Before RUSSELL, Circuit Judge, BUTZNER, Senior Circuit Judge, and SIMONS, Senior District Judge for the District of South Carolina, sitting by designation.
Larry Shavers appeals a judgment entered on a verdict that found him guilty of conspiracy to rob a bank, armed bank robbery, using a firearm in the commission of an armed bank robbery, kidnapping, and using a firearm in the course of the kidnapping. The district court imposed maximum, consecutive prison sentences on all counts. Shavers' numerous assignments of error concerning the admission and sufficiency of evidence need no discussion, for clearly they do not warrant reversal. His assignment of error pertaining to the reason the court imposed maximum sentences requires that the judgment be vacated and the case be remanded for resentencing. Other complaints about the sentences are ill founded.
During his allocution, Shavers told the court that he was going to appeal. Shavers' counsel asked the court not to impose a greater sentence than 30 years. He pointed out that this was the sentence imposed on Shavers' brother, his partner in crime, who had pled guilty. This colloquy followed:
Generally appellate courts lack authority to review sentences that are within statutory limits. See United States v. Tucker, 404 U.S. 443, 447, 92 S.Ct. 589, 591, 30 L.Ed.2d 592 (1972). Among the exceptions to this general rule is the prohibition against increasing a prisoner's sentence on retrial because he exercised his right to appeal. See North Carolina v. Pearce, 395 U.S. 711, 725, 89 S.Ct. 2072 2080, 23 L.Ed.2d 656 (1969). A corollary to this principle prohibits imposing a maximum sentence because the court believes that the prisoner might successfully appeal. Enhanced sentencing because of the prospect of an appeal can serve to deter appeals as effectively as an enhanced sentence after appeal. In both situations the prisoner is deprived of liberty without due process of law by the danger of retaliation for exercising his right to appeal. See Bordenkircher v. Hayes, 434 U.S. 357, 362-63, 98 S.Ct. 663, 667-68, 54 L.Ed.2d 604 (1978). Both situations disclose what the Supreme Court has described as increased punishment that poses "a realistic likelihood of 'vindictiveness.' " See Blackledge v. Perry, 417 U.S. 21, 27, 94 S.Ct. 2098, 2102, 40 L.Ed.2d 628 (1974). The "likelihood of vindictiveness," as the term is used by the Court, does not impute an evil motive or ill intention to the sentencing judge or to the prosecutor. It describes an erroneous exercise of discretion that punishes, not only for a crime, but also "for doing something the law plainly allowed ..." United States v. Goodwin, 457 U.S. 368, 384, 102 S.Ct. 2485, 2494, 73 L.Ed.2d 74 (1982).
The rationale for sentencing revealed by the colloquy between the court and the prosecutor disregards the principle undergirding Pearce. If a prisoner deserves a certain prison sentence before appeal, he deserves a sentence that is no more severe after appeal and retrial, in the absence of misconduct subsequent to the entry of the initial judgment. See Pearce, 395 U.S. at 726, 89 S.Ct. at 2081. To impose a sentence in excess of that which is otherwise warranted simply because the prisoner intends to appeal improperly allows the court to impose the same excessive sentence after retrial because of the appeal. The violation of the due process clause is readily apparent. The Supreme Court's mandate of Pearce must not be so easily avoided.
A court may exercise broad discretion when it imposes sentence, and it may consider every aspect of a prisoner's crime and criminal record. But it does not have discretion to enhance an otherwise appropriate sentence because the prisoner intends to appeal. The court's colloquy with the prosecutor discloses a realistic likelihood that Shavers' punishment was increased in anticipation of his appeal. The judgment of the district court must be vacated and the case...
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