United States v. Martorano, CRIMINAL No. 83-314-1

• Decision Date: 21 June 2011
• Docket Number: CRIMINAL No. 83-314-1
• Parties: UNITED STATES of AMERICA v. GEORGE MARTORANO
• Court: U.S. District Court — Eastern District of Pennsylvania

UNITED STATES of AMERICA

v.GEORGE MARTORANO

CRIMINAL No. 83-314-1

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

June 21, 2011

MEMORANDUM

PRATTER, J.

INTRODUCTION

Twenty-seven years after pleading guilty to various drug-related offenses, and 23 years after he was sentenced for those crimes, George Martorano now moves to correct his sentence pursuant to the former Federal Rule of Criminal Procedure 35.¹ Mr. Martorano claims that his sentence is illegal and must be vacated.

For the reasons discussed below, and following close and careful consideration of the very line advocacy rendered to Mr. Martorano and the Government, Mr. Martorano's motion will be denied.

FACTUAL AND PROCEDURAL BACKGROUND

The background of this case is set forth in United States v. Martorano, 2007 U.S. Dist. LEXIS 78074 (E.D. Pa., October 19, 2007) (denying an earlier motion by Mr. Martorano tocorrect his sentence under Rule 35).

In the current motion, Mr. Martorano asserts that his 1984 sentence was illegal because it was a "general sentence" of the kind rejected by the Third Circuit Court of Appeals in United States v. Ward, 626 F.3d 179 (3d Cir, 2010). In Ward, the Court held that where a defendant had pled guilty to five counts relating to production and transmission of child pornography and making false statements, the district court committed a plain procedural error when it sentenced the defendant to an undivided sentence of 25 years of imprisonment on all five counts, rather than sentencing him separately on each count. The Court explained that such a general sentence is inconsistent with Section 5G1.2 of the Sentencing Guidelines,² and observed that a general sentence prevents the appellate courts and the defendant from determining whether the sentence is legal as to any particular count. Id, at 184. As a result, the case was remanded to the district court for resentencing. Id. at 184-185.

Mr. Martorano also renews an objection to his sentence under Rutledge v. United States, 517 U.S. 292 (1996), in which the Supreme Court held that conspiracy, as defined in 21 U.S.C. § 846, is a lesser included offense of a continuing criminal enterprise ("CCE") violation, defined in 21 U.S.C". § 848, and that a defendant therefore cannot be convicted of violating both of thesestatutes.³ This Court has previously held that although Mr. Martorano was convicted of violating both § 846 and § 848, Rule 35 is not a proper mechanism for challenging a conviction,⁴ and Mr. Martorano's sentence was not inconsistent with Rutledge or the Filth Amendment's Double Jeopardy Clause because he was given a general sentence on all counts, and, hence, was not sentenced 'twice" on the hasis of a single conviction. Martorano, 2007 U.S. Dist. LEXIS 78074 at * 12-14. Mr. Martorano now proposes that the Court should reconsider this ruling in light of Ward, and should vacate his sentence under Rule 35 as inconsistent with Rutledge.

DISCUSSION

Mr. Martorano pled guilty to 19 counts. His general sentence, to life imprisonment without parole, exceeded the statutory maximum for all but one of these 19 counts, with the lone exception being his CCE offense. When Mr. Martorano was sentenced, conviction of CCE offense permitted a maximum sentence of life imprisonment without parole.

This case is thus partially analogous to Ward, in which the general sentence imposed by the district court exceeded the maximum permitted sentence for three of the five counts to which the defendant had pled guilty, but did not exceed the maximum for two others.⁵ As theGovernment has observed, however, Mr. Martorano's situation differs from Ward in an important respect: Ward, was a Sentencing Guidelines case, while Mr. Martorano was sentenced for crimes that he committed before the Guidelines went into effect.⁶ Indeed, Ward explicitly rejects the argument that a set of pre-Guidelines cases⁷ might resolve or control the legality of general sentences in this Circuit, noting that these cases "did not concern the Sentencing Guidelines and are inapposite here." Id, at 185, fn. 8.

Mr. Martorano makes much of the word "and" in the quoted footnote passage from Ward, arguing that the Court in Ward must have intended to conjoin two distinct observations - namely, that (1) the cited cases did not concern the Guidelines; and, separately, (2) the cited cases arc also, for independent reasons, inapposite. This hyper-compartmentalized reading not only belies the more obvious interpretation of the passage, but seems to be premised on speculation about the Court's unstated reasoning.⁸ and assumes that the Court intended to reverse decades ofprecedent establishing the legality of (and in some circumstances, the preference for) general sentences in the pre-Guidelines context using ambiguous language embedded in a footnote.⁹ In fact, the arrangement of the opinion suggests that Ward's analysis of the Sentencing Guidelines was crucial to its outcome. Ward's conclusion that the district court erred in assigning a general sentence is presented in the final sentence of a paragraph containing nothing but a brief summary of Guideline Section 5G1.2 and citations to excerpts from that Section and its Application Notes. A careful reading of Ward thus suggests that the Sentencing Guidelines were both a necessary and sufficient basis for the Court's ruling as to the legality of the general sentence.¹⁰

Thus, although Mr. Martorano establishes that the courts of other circuits have long barred the issuance of general sentences, and have held that such sentences are illegal even whenimposed outside of the context of the Sentencing Guidelines, he has not demonstrated that our Court of Appeals sought in Ward to adopt a similarly broad rule for the Third Circuit.¹¹ Nor, indeed, has he adequately addressed the question of whether, if Ward did announce such a rule, that rule would apply retroactively to his general sentence.¹²

Footnote 8 of the Ward opinion also makes reference to Rutledge, 517 U.S. 292, noting that "to the extent [that distinguishable pre-Guidelines cases] can be read as permitting a general sentence on multiple convictions to cure a Double Jeopardy problem, the Supreme Court has since rejected such an approach [in Rutledge]."" Id. Mr. Martorano argues that this comment, read in concert with the Ward observation that imposing a general sentence on multiple counts could be interpreted as imposing concurrent sentences on those counts, id. at 184, breathes new life into his theory - which this Court previously rejected in Martorano, 2007 U.S. Dist. LEXIS 78074 at * 12-14 - that Rutledge entitles him to resentencing.

In fact, nothing in Ward undermines this Court's conclusion that Rutledge claims cannot be raised in a Rule 35 motion. Although Rutledge vacated the defendant's conspiracy sentence,it did so in the context of a successful Double Jeopardy challenge to the defendant's underlying conviction. 517 U.S. at 307. "By its plain language, [however,] Rule 35(a) is limited to claims that a sentence itself is illegal, not that the conviction underlying a sentence is infirm" - and as a result, where a petitioner asserts a Rutledge claim in the context of a Rule 35 motion, his motion is more appropriately construed as a motion challenging his conviction under 28 U.S.C. § 2255.¹³ United States v. Little, 392 F.3d 671, 678 (4th Cir. 2004) (holding, where petitioner sought to challenge his CCE and conspiracy convictions and sentence under Rutledge in the context of a Rule 35 motion, that his motion should be construed as one under § 2255).¹⁴ Mr. Martorano has not sought the requisite authorization to file a § 2255 motion, which would be his third.¹⁵ As aresult, his Rutledge claim is not cognizable.

CONCLUSION

Given that United States v. Ward does not clearly establish the illegality of a general sentence outside of the context of the Sentencing Guidelines, and does not disturb this Court's conclusion that a claim challenging a conviction under the Double Jeopardy Clause and Rutledge v. United States cannot be presented in the context of a Rule 35 motion, Mr. Martorano's motion to correct his sentence will be denied. An Order to this effect follows.

BY THE COURT:

GENE E. K. PRATTER

UNITED STATES DISTRICT JUDGE

1. Mr. Martorano makes this motion under former FED. R. CRIM. P. 35(a), which is available to individuals whose offenses were committed prior to November 1, 1987. In June of 1984, Mr. Martorano pleaded guilty to a number of offenses he had theretofore committed. Thus, the former Rule 35(a) is available to him. That Rule allowed an individual to bring a motion to correct an illegal sentence at any time. Because Mr. Martorano's motion addresses only the former Rule 35(a), references to Rule 35(a) in this Memorandum are to the former Rule.

2. U.S.S.G. § 5G 1.2(b) provides that, except as otherwise required by law, "the sentence imposed on each other count shall be the total punishment" (emphasis added)); id. § 5g1.2(c) ("if the sentence imposed on the count carrying the highest statutory maximum is adequate to achieve the total punishment, then the sentences on all counts shall run concurrently, except to the extent otherwise required by law" (emphasis added)).

Application Note 1 for this guideline clarifies that, in general, "the total punishment is to be imposed on each count and the sentences on all counts are to be imposed to run concurrently to the extent allowed by the statutory maximum sentence of imprisonment for each count of conviction."

3. Because the Supreme Court found that a guilty verdict on a § 848 charge necessarily includes a finding that the defendant participated in a conspiracy in violation of § 846, the Court held that the conspiracy conviction, as well as the sentence for that conviction, must be vacated. Id. al 307.

4. Courts have "uniformly" construed Rule 35 "to be limited to consideration of the validity of a sentence itself," and have thus held that it cannot be used...