U.S. v. Terrovona, 84-3134
| Decision Date | 23 October 1985 |
| Docket Number | No. 84-3134,84-3134 |
| Citation | 785 F.2d 767 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. James Richard TERROVONA, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
David Marshall, Asst. U.S. Atty., Seattle, Wash., for plaintiff-appellee.
James Vonasch, Seattle, Wash., for defendant-appellant.
Appeal from the United States District Court for the Western District of Washington.
Before ANDERSON, HUG and REINHARDT, Circuit Judges.
Between September, 1977 and July, 1981, James Richard Terrovona collected child's insurance benefits under the federal Old Age and Survivor's Benefits Act ("OASDI"), 42 U.S.C. Secs. 401-433 (1982), by falsely claiming that he was enrolled in college. In March, 1982, Terrovona was convicted of knowingly making false statements to the Social Security Administration (Count III) and of fraudulent failure to disclose facts affecting his continued eligibility for OASDI benefits (Count V). He was sentenced to one year's imprisonment on Count III and to three years' probation on Count V, to begin after the sentence on Count III had been served. Terrovona served the full one-year sentence on Count III and was released on probation. As a condition of probation, he was required to make restitution and obey all laws.
On May 24, 1984, while he was still on probation, Terrovona was convicted of first degree murder in Washington state court. On May 29, Terrovona's federal probation officer requested revocation of Terrovona's probation. The district court revoked Terrovona's probation and sentenced him to the maximum one-year sentence on Count V, to be served after the completion of Terrovona's state sentence for murder.
Terrovona now appeals from the district court's order, arguing that the federal sentence should be served concurrently with the state sentence. He contends that: (1) the district court failed to exercise its discretion in imposing the one-year consecutive sentence; and (2) the sentence violates the eighth amendment under the facts of this case.
The initial question is whether the district court had discretionary authority to specify that the federal sentence run concurrently with the state sentence. Some of our prior decisions have interpreted former 18 U.S.C. Sec. 3568 to mean that federal judges have no authority to impose federal sentences which run concurrently with state sentences when the prisoner is in state custody. United States v. Segal, 549 F.2d 1293, 1301 (9th Cir.1977); United States v. Myers, 451 F.2d 402, 404 (9th Cir.1972). In United States v. Williams, 651 F.2d 644, 647 n. 2 (9th Cir.1981), we held that the district court also had no authority to specify that the sentence be served consecutively with a state sentence, stating that this decision was up to the Bureau of Prisons.
However, in enacting the Crime Control Act of 1984 (the "Act"), Congress made it clear that it intended the district courts to have authority to specify that a federal sentence either be served concurrently or consecutively with a prior state sentence. As a part of the Act, Congress enacted a new section, codified as 18 U.S.C. Sec. 3584, which states:
Sec. 3584. Multiple sentences of imprisonment
(a) Imposition of concurrent or consecutive terms.--If multiple terms of imprisonment are imposed on a defendant at the same time, or if a term of imprisonment is imposed on a defendant who is already subject to an undischarged term of imprisonment, the terms may run concurrently or consecutively, except that the terms may not run consecutively for an attempt and for another offense that was the sole objective of the attempt. Multiple terms of imprisonment imposed at the same time run concurrently unless the court orders or the statute mandates that the terms are to run consecutively. Multiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concurrently.
(b) Factors to be considered in imposing concurrent or consecutive terms.--The court, in determining whether the terms imposed are to be ordered to run concurrently or consecutively, shall consider, as to each offense for which a term of imprisonment is being imposed, the factors set forth in section 3553(a).
(c) Treatment of multiple sentence as an aggregate.--Multiple terms of imprisonment ordered to run consecutively or concurrently shall be treated for administrative purposes as a single, aggregate term of imprisonment.
The accompanying legislative history makes it clear that Congress intends that federal district judges may impose either consecutive or concurrent sentences upon defendants already serving a state prison term. 1984 U.S.Code Cong. & Ad.News 3182, 3309-3312. The Senate Report states at page 3309:
A term of imprisonment imposed on a person already serving a prison term is deemed to be concurrent with the first sentence if the first sentence is for a Federal offense, but is usually served after the first sentence if that sentence involves imprisonment for a State or local offense. 310
Footnote 309 is not pertinent to this issue, but footnote 310 states:
The Senate Report then states at page 3310:
Proposed 18 U.S.C. Sec. 3584(a) also codifies the rule that, if the court is silent as to whether sentences to terms of imprisonment imposed at the same time are concurrent or consecutive, the terms run concurrently unless a statute requires that they be consecutive. If, on the other hand, multiple terms of imprisonment are imposed at different times without the judge specifying whether they are to run concurrently or consecutively, they will run consecutively unless the statute specifies otherwise. This carries forward current law where both sentences are for Federal offenses, but changes the law that now applies to a person sentenced for a Federal offense who is already serving a term of imprisonment for a State offense. 314
The Act also replaced the prior 18 U.S.C. Sec. 3568 interpreted in our Segal, Myers, and Williams cases with section 3585. The portion of the section pertinent here is Sec. 3585(a), which states:
A sentence to a term of imprisonment commences on the date the defendant is received in custody awaiting transportation to, or arrives voluntarily to commence service of sentence at, the official detention facilities at which the sentence is to be served.
The Senate Report indicates that this section is not to bar concurrent federal and state sentences, which we had previously held to be the case in Segal. The Senate Report states at page 3312:
The Committee also does not intend that this provision be read to bar concurrent Federal and State sentences for a defendant who is serving a State sentence at the time he receives a Federal sentence. 318
It is thus apparent that Congress has expressed an intent that a federal judge is to have the discretion to impose federal sentences that are either consecutive or concurrent to state sentences. However, the specific sections of the Act that implement that intent are in a portion of the Act that does not become effective until November 1, 1987. See Section 235 of Pub.L. 98-473, and historical note to 18 U.S.C. Sec. 3551, as modified by Pub.L. 99-217 Sec. 4. It therefore appears that the law of this circuit as expressed in Segal, Myers, and Williams remains the law until November 1, 1987. Thus, under the existing law of this circuit, the district court had no authority to order that the sentence be served either...
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