U.S. v. Shue

Decision Date30 June 1987
Docket NumberNo. 86-1242,86-1242
Citation825 F.2d 1111
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Charles SHUE, Defendant-Appellant.
CourtU.S. Court of Appeals — Seventh Circuit

Richard Leng, Barrington, Ill., for defendant-appellant.

Victoria J. Peters, Asst. U.S. Atty., Anton R. Valukas, U.S. Atty., Chicago, Ill., for plaintiff-appellee.

Before EASTERBROOK and RIPPLE, Circuit Judges, and GRANT, Senior District Judge. *

RIPPLE, Circuit Judge.

Appellant Charles Shue asks this court to review the order of the district court resentencing him to twenty years imprisonment for his conviction on Count IV of a multicount indictment. Mr. Shue's convictions for Counts I-III of the indictment were reversed by this court because of constitutional error and remanded for retrial; Count IV was affirmed. For the reasons set forth in the following opinion, we affirm the resentencing order of the district court.

I Prior Proceedings
A. Trial Court

Mr. Shue was convicted in the federal district court by a jury of Counts I-IV of a multicount indictment. 1 He was sentenced to five years imprisonment on Count I, twenty-five years imprisonment on Count II, consecutive to the sentence on Count I, and two concurrent five-year terms of probation on Counts III and IV, consecutive to the sentences on Counts I and II.

B. First Appeal

Mr. Shue appealed his convictions to this court. United States v. Shue, 766 F.2d 1122 (7th Cir.1985). The court held that the prosecution impermissibly commented on Mr. Shue's post-arrest silence to suggest appellant's guilt on Counts I, II, and III in violation of his due process right to a fair trial. Id. at 1131-32. The prosecution's comments did not, however, taint the appellant's conviction on Count IV. Id. at 1133. The court explicitly affirmed the conviction and sentence on Count IV and reversed and remanded for a new trial the convictions on Counts I, II and III. 2 Id. at 1136.

II Proceedings Under Review
A. District Court Action

Following remand, the government filed a motion in the district court to resentence Mr. Shue on the affirmed count. R.138. The district court granted the motion, United States v. Shue, No. 81 CR 362, mem. op. at 1 (N.D.Ill. Dec. 9, 1985) [hereinafter cited as Mem. op.] [Available on WESTLAW, DCT database]; R.147 at 1, and resentenced him to twenty years incarceration on Count IV, 3 R. 150, concurrent with a twenty-four-year sentence for armed robbery imposed upon him by the State of Illinois. At the time of resentencing, and at the time that oral arguments were heard in this appeal, Mr. Shue had not been retried on the reversed counts.

B. Rationale of the District Court

In granting the government's motion to resentence Mr. Shue, the district court, relying on Pennsylvania v. Goldhammer, 474 U.S. 28, 106 S.Ct. 353, 88 L.Ed.2d 183 (1985); 4 United States v. DiFrancesco 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980); 5 and United States v. Covelli, 738 F.2d 847 (7th Cir.), cert. denied, 469 U.S. 867, 105 S.Ct. 211, 83 L.Ed.2d 141 (1984), held that the resentencing did not violate the double jeopardy clause of the fifth amendment. The court, citing North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 626 (1969), acknowledged that the double jeopardy clause has been interpreted as protecting an individual against multiple punishments for the same offense. However, the court held that "the same policy interests supported by the Double Jeopardy Clause are not at stake in a situation where reevaluation of a sentence, rather than multiple sentencing, is at issue." Mem. op. at 2. "[T]he Double Jeopardy Clause's 'bar against repeated attempts to convict, with consequent subjection of the defendant to embarrassment, expense, anxiety, and insecurity, and the possibility that he may be found guilty even though innocent' have [sic] little application where a convicted felon's sentence is merely being reevaluated in light of changed circumstances." Id. at 3 (quoting DiFrancesco, 449 U.S. at 136, 101 S.Ct. at 437). The district court asserted that, in Goldhammer, the Supreme Court read its earlier DiFrancesco holding as "consistent with the idea that double jeopardy protections do not bar resentencing of a criminal defendant on affirmed convictions where other convictions and sentences are reversed on appeal." Id. The court found "no conceptual difference between these cases and the present case." Id. at 4. Accordingly, it granted the government's motion to resentence on the affirmed Count IV conviction. Id.

III Discussion
A. District Court Authority to Resentence

The district court was correct in concluding that, despite the unfortunate language of our earlier remand order, 6 it had authority to resentence Mr. Shue. The district court was quite right in perceiving that the nature of the proceedings in this court during the first appeal supplied no reason for a deviation from the general rule that, when an appellate court affirms some counts and reverses others, it is open to the district court to resentence in order to effectuate the original sentencing intent. See United States v. Butz, 784 F.2d 239, 241 (7th Cir.1986); United States v. Kuna, 781 F.2d 104, 106 (7th Cir.1986) (Kuna II ); United States v. Jefferson, 760 F.2d 821, 823 (7th Cir.), vacated on other grounds, 474 U.S. 806, 106 S.Ct. 41, 88 L.Ed.2d 34 (1985), on remand, 782 F.2d 697 (7th Cir.1986). But see United States v. Henry, 709 F.2d 298, 305-06 (5th Cir.1983) (en banc). 7 Indeed, in Kuna II, this court had previously heard an appeal of the defendant's convictions. The court affirmed the convictions on all counts, but vacated a probation condition attached to one of the counts and remanded to the district court. The language used by the court to remand was: "[W]e vacate the condition of probation and remand for resentencing." United States v. Kuna, 760 F.2d 813, 820 (7th Cir.1985) (Kuna I ). On remand, the district court resentenced Mr. Kuna by adjusting his entire sentence package. Mr. Kuna appealed the resentencing, arguing that the district court had no authority to resentence as it did. 781 F.2d at 105-06. This court stated that "[a]lthough the language of Kuna I is less than precise, we can conclude that this court fully intended the district judge to re-evaluate Kuna's entire sentence package." Id. at 106.

Like the panel in Kuna II, we are mindful of the Supreme Court's admonition in DiFrancesco that " '[t]he Constitution does not require that sentencing should be a game in which a wrong move by the judge means immunity for the prisoner.' " 449 U.S. at 135, 101 S.Ct. at 436 (quoting Bozza v. United States, 330 U.S. 160, 166-67, 67 S.Ct. 645, 649, 91 L.Ed. 818 (1947)). The practical realities of present sentencing practices require this approach. When a defendant is convicted of more than one count of a multicount indictment, the district court is likely to fashion a sentencing package in which sentences on individual counts are interdependent. When, on appeal, one or more counts of a multicount conviction are reversed and one or more counts are affirmed, the result is an "unbundled" sentencing package. See, e.g., United States v. Thomas, 788 F.2d 1250, 1260 (7th Cir.), cert. denied, --- U.S. ----, 107 S.Ct. 187, 93 L.Ed.2d 121 (1986). Because the sentences are interdependent, the reversal of convictions underlying some, but not all, of the sentences renders the sentencing package ineffective in carrying out the district court's sentencing intent as to any one of the sentences on the affirmed convictions.

Thus, despite the previous panel's failure to vacate explicitly the sentencing package and remand for resentencing, we hold that the district court had the authority to reevaluate the sentencing package in light of the changed circumstances and resentence the defendant to effectuate the original sentencing intent. Moreover, as we shall discuss in the following paragraphs, there can be no question that such resentencing does not violate the double jeopardy clause or the due process clause. See Kuna II, 781 F.2d at 106.

B. Double Jeopardy

The fifth amendment guarantee against double jeopardy "has been said to consist of three separate constitutional protections. It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense." Pearce, 395 U.S. at 717, 89 S.Ct. at 2076. It is the last of these protections that is implicated when a defendant is resentenced after a successful appeal in which convictions on some of multiple counts are reversed and others are affirmed.

In Pennsylvania v. Goldhammer, 474 U.S. 28, 106 S.Ct. 353, 88 L.Ed.2d 183, 8 the Supreme Court held that, in accordance with DiFrancesco 9 and Pearce, the double jeopardy clause did not bar resentencing on counts that were affirmed on appeal when a sentence of imprisonment on another count was vacated. "Indeed, a resentencing after an appeal intrudes even less upon the values protected by the Double Jeopardy Clause than does a resentencing after retrial." 106 S.Ct. at 354. Yet, Mr. Shue argues that he has a legitimate expectation of finality in his sentence and that this bars the district court from resentencing him. He relies on United States v. Jones, 722 F.2d 632 (11th Cir.1983), which held that, where the defendant (who had not appealed his conviction or sentence) had begun to serve his sentence, he had a legitimate expectation as to the duration of the sentence that was protected by the double jeopardy clause. Id. at 638. The Jones court stated that "unless the statute explicitly provides for sentence modification, as in DiFrancesco, or the defendant knowingly engages in deception, a sentence may not be altered in a manner prejudicial to the defendant after he has started serving the sentence." Id. at 638-39.

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