U.S. v. Townsend

• Decision Date: 11 June 1999
• Docket Number: No. 98-3041,98-3041
• Citation: 178 F.3d 558
• Parties: UNITED STATES of America, Appellee, v. Derrick TOWNSEND, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

178 F.3d 558

UNITED STATES of America, Appellee, v. Derrick TOWNSEND, Appellant.

No. 98-3041.

United States Court of Appeals District of Columbia Circuit.

Argued Feb. 18, 1999.

Decided June 11, 1999.

Appeal from the United States District Court for the District of Columbia (No. 88cr00254-03).

Thomas Lumbard, appointed by the court, argued the cause and filed the briefs for appellant.

Neal K. Katyal, Attorney, United States Department of Justice, argued the cause for appellee. On the brief were Wilma A. Lewis, United States Attorney, and John R. Fisher and Susan A. Nellor, Assistant United States Attorneys.

Before: WILLIAMS, SENTELLE and GARLAND, Circuit Judges.

Opinion for the Court filed by Circuit Judge SENTELLE.

SENTELLE, Circuit Judge:

Appellant Derrick Townsend was convicted on numerous drug- and gun-related counts in 1988, including two counts of using a firearm during a drug trafficking offense, 18 U.S.C. § 924(c). He received a sentence which included a 450-month term of imprisonment. After a motion by the government under Fed.R.Crim.P. 35(b), the sentencing court departed downward significantly, resulting in a total term of imprisonment of 240 months, of which 60 months were allocated to each of two § 924(c) counts, and 120 months were allocated to the other charges. Following the Supreme Court's decision in Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), the government stipulated that Townsend's § 924(c) convictions should be vacated, and that he should be resentenced on the remaining counts. The district court resentenced Townsend in 1998, again imposing a total term of imprisonment of 240 months. Townsend appeals from this resentencing, arguing that the court lacked authority to reimpose the same total term of imprisonment in light of the fact that his convictions on the § 924(c) counts were vacated, and that doing so violated the Double Jeopardy Clause of the Fifth Amendment. We conclude that because the total sentence Townsend originally received was properly considered a single "package," by challenging his § 924(c) conviction, Townsend reopened his entire sentence, and that the sentence imposed on the remaining counts was lawful. Townsend further argues that the 1998 resentencing did not comply with Fed.R.Crim.P. 32 because he did not timely receive the probation office's memorandum and because he lacked notice of the court's sentencing theory, and that the court erred in reimposing a fine which appellant claims had been previously vacated. We conclude that the first and third arguments are not properly before us, and that the second is without merit.

I. Background

A 1988 indictment charged Derrick Townsend with conspiracy to distribute cocaine and cocaine base, 21 U.S.C. § 846; conspiracy to distribute marijuana, 21 U.S.C. § 846; conspiracy to carry and use firearms during a drug trafficking offense, 18 U.S.C. § 371; possession with intent to distribute cocaine base, 21 U.S.C. § 841(a); two counts of possession with intent to distribute marijuana, 21 U.S.C. § 841(a); possession with intent to distribute cocaine, 21 U.S.C. § 841(a); and two counts of using a firearm during a drug trafficking offense, 18 U.S.C. § 924(c). Townsend was convicted on all counts in 1988 and sentenced in 1989. He received concurrent sentences on the drug and conspiracy charges, the longest of which was 330 months. He also received two 60-month terms, consecutive to the other counts and to each other, on the § 924(c) charges, for a total term of imprisonment of 450 months. In addition, he received a five-year term of supervised release, and fines totaling $600,000. We affirmed both the conviction and the district court's denial of a new trial. United States v. Lafayette, No. 89-3023, 1990 WL 18648, 896 F.2d 599 (D.C.Cir. Feb. 22, 1990); United States v. Lafayette, 983 F.2d 1102 (D.C.Cir.1993).

Before their arrest in this case, Townsend and codefendant Lewis had provided information to authorities in New York about a drug operation and related homicides. After their convictions here, Townsend and Lewis entered into agreements for cooperation and testimony with the U.S. Attorney for the Eastern District of New York. The agreements called for the U.S. Attorney to move to reduce the sentences previously imposed in this case, as permitted by Fed.R.Crim.P. 35(b). On January 24, 1990, the Government filed a motion for reduction of sentence. At a status hearing on February 28, 1991, the district judge stated on the record that he intended to grant the government's motions to reduce sentence. He further stated that he intended to reduce Lewis to the twenty-year range, and Townsend to the twenty-five-year range, and that he needed to "work out the formula" to accomplish those reductions. He also noted, at the urging of counsel, that he would reconsider the amount of the fines, but he did not rule on the motion.

Finally, almost three years later, on January 10, 1994, Townsend's counsel filed a motion asking for a hearing on the sentence reduction. The district court held no hearing, but on May 26, 1994 issued an "Order Modifying Sentence" for both Townsend and codefendant Lewis. The order provided "that the judgment entered on January 27, 1989, be and it is hereby vacated." It went on to order identical 240-month sentences for Lewis and Townsend, consisting of consecutive terms of 60 months on each of the two § 924(c) counts; and concurrent sentences on the other counts, with the longest being 120 months. The order, like the original order, also provided for five years supervised release. It did not mention any fines. Although the order indicated that the attached statement of reasons should be made part of the record, no statement of reasons was ever filed. Neither party appealed the 1994 order. By order of October 23, 1995, the court, citing confusion as to whether the originally-imposed fines still applied after the 1994 order, ordered that the original fine was still operative. The 1995 order was denominated "Clarification of Order Modifying Sentence" and was not appealed by either party.

Meanwhile, in 1995, Townsend filed a motion pursuant to 28 U.S.C. § 2255, arguing, inter alia, that there was insufficient evidence to support his § 924(c) convictions. On December 6, 1995, the Supreme Court issued its opinion in Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), holding that conviction for using a firearm under 18 U.S.C. § 924(c) requires proof of active use of a firearm to facilitate the underlying offense. In light of Bailey, the U.S. Attorney and Federal Defender filed a joint motion stipulating that there was insufficient evidence to support Townsend's convictions on the two § 924(c) counts. The motion further stipulated that the appropriate relief was to vacate the § 924(c) convictions and resentence appellant on the remaining counts, with credit for the 113 months already served. The motion also noted that a defendant who earns good-time credits must serve 102 months of a 120-month sentence.

On March 18, 1998, the Probation Office issued a ten-page "Memorandum" regarding Townsend's resentencing. The Memorandum described the sentencing history, including the findings of the original presentence report and the 1994 downward departure. The Memorandum then presented a revised calculation for the remaining counts under the 1997 Guidelines, incorporating a two-level enhancement for possession of a weapon under U.S.S.G. § 2D1.1(b)(1). This enhancement had not been applied in the original sentencing proceeding, because the enhancement is unavailable where there is a § 924(c) conviction. See U.S.S.G. § 2K2.4 (background). With this enhancement, the revised calculation for the remaining counts yielded an offense level of 40 (as compared to 38 in the original 1989 presentence report) and a guideline imprisonment range of 360 months to life. The 1994 downward departure, although discussed in the sentencing history, was not incorporated in the calculations. On March 27, 1998, defense counsel filed a "Memorandum Regarding Re-Sentencing." The Memorandum argued, inter alia, that because Townsend had completed the 120-month sentence originally allocated to the non-924(c) counts (taking into account good time credits), imposing an additional sentence on those counts would violate the Due Process Clause.

On March 30, 1998, the district court held a sentencing hearing. The government argued that the defendant had no expectation that his sentence would be only 120 months, that vacating the § 924(c) convictions "unravels the whole package," and that "the Court is well within its latitude in just simply imposing the 240 months on the remaining counts." The court adopted this suggestion. The court stated that the intention in 1994 was to reduce the sentence to 240 months, and the sentence was only structured as 120 on the § 924(c) charges and 120 on the other charges because there was a required 60-month consecutive sentence on each of the § 924(c) charges. Accordingly, the court found no bar to imposing the entire 240-month sentence on the remaining counts. The court also imposed five years of supervised release, and fines totaling $500,000. Townsend appeals from this 1998 resentencing order.

II. Townsend's Rule 32

Arguments

We first address Townsend's argument that his 1998 resentencing did not comply with Fed.R.Crim.P. 32(b)(6). The rule provides that "[n]ot less than 35 days before the sentencing hearing--unless the defendant waives this minimum period--the probation officer must furnish the presentence report to the defendant, the defendant's counsel, and the attorney for the Government." Fed.R.Crim.P. 32(b)(6)(A). Townsend claims that the requirements of Rule 32 were not satisfied in this case, and that we must therefore vacate the sentence imposed and remand for a new resentencing proceeding. In appellant's view, the probation office's "Memorandum"...