US v. Savely, 88-10034-01.

Decision Date02 February 1993
Docket NumberNo. 88-10034-01.,88-10034-01.
Citation814 F. Supp. 1519
CourtU.S. District Court — District of Kansas
PartiesUNITED STATES of America, Plaintiff, v. Virgil Wayne SAVELY, Defendant.

Lee Thompson, U.S. Atty., Wichita, KS, for plaintiff.

Cyd Gilman, Asst. Federal Public Defender, Wichita, KS, for defendant.

MEMORANDUM AND ORDER

CROW, District Judge.

On March 9, 1989, the jury found the defendant, Virgil Wayne Savely, guilty of five counts of wire fraud, in violation of 18 U.S.C. § 1343, and two counts of mail fraud, in violation of 18 U.S.C. § 1341.1 Prior to sentencing, the defendant filed a written response (Dk. 53) disputing, inter alia, that portion of the pre-sentence report on restitution in which the prosecution alleged there were twenty-three victims which had sustained a combined loss of $139,694.25. The defendant argued that the government had not proved these losses with credible evidence and that restitution in this amount would be unfairly prejudicial to him. The defendant conceded that in proving the defendant guilty of the counts charged in the indictment the prosecution had established six victims with a combined loss of $71,665.00.

On June 5, 1989, the court sentenced defendant to three years imprisonment on count I, and on the remaining counts, the court suspended sentence and placed defendant on five-years probation commencing upon release from confinement and running concurrently. In addition, the court ordered defendant to pay as restitution to twenty-one victims the combined loss of $135,315.55. The defendant did not appeal.

On October 2, 1989, the defendant filed a motion to modify sentence pursuant to Rule 35 of the Federal Rules of Criminal Procedure. (Dk. 57). The defendant asked the court to reduce the period of incarceration and the amount of restitution. Specifically, the defendant argued that his obligation for restitution should not commence until he was released and that upon release he would be incapable of making the large payments necessary for full restitution. The court denied the defendant's motion to modify. (Dk. 59).

On March 26, 1991, the defendant filed a "Motion" (Dk. 62) contending the order for restitution should be modified in light of the recent Supreme Court decision, Hughey v. U.S., 495 U.S. 411, 110 S.Ct. 1979, 109 L.Ed.2d 408 (1990). The defendant acknowledged that this court in sentencing him had properly interpreted the controlling Tenth Circuit precedent, U.S. v. Duncan, 870 F.2d 1532 (10th Cir.), cert. denied, 493 U.S. 906, 110 S.Ct. 264, 107 L.Ed.2d 214 (1989), which allowed an order of restitution to include losses caused by other criminal acts committed by the defendant that are significantly connected to those for which he has been convicted or pleaded guilty. The defendant next noted that in Hughey the Supreme Court limited restitution awards under the Victim and Witness Protection Act of 1982 ("VWPA") (18 U.S.C. §§ 3579 and 3580) to those losses caused by the particular conduct which was the basis of the offense of conviction. The defendant referred to his argument at the restitution hearing and in his written response to the pre-sentence report that any restitution should be limited to the acts upon which he had been convicted. The defendant believed his failure to appeal this issue was excused by the controlling Tenth Circuit decision in Duncan. Based upon these points, the defendant requested the following relief:

Defendant Savely asserts that had he been sentenced after the Hughey case, supra, was issued, the restitution ordered would have been 63,650.55 less than the amount that was entered by the Court, $135,315.55. Fundamental principles of fairness support modifying the amount of restitution to $71,665.00.

(Dk. 62 at 3). In its response, the prosecution argued, without citation to case law or legal principles, that Hughey should not be applied retroactively because it was not "appropriate" and because it would "punish" the victims. (Dk. 63).

Believing the issues had not been briefed adequately, the court entered the following minute order on May 3, 1991:

The defendant's motion (Dk. 62) will not be considered or decided until the defendant submits an additional brief addressing the statutory authority for bringing such a motion at this time and the basis for applying retroactively the case of Hughey v. United States 495 U.S. 411, 110 S.Ct. 1979, 109 L.Ed.2d 408 (1990). The Government will have ten days from the filing date of the defendant's brief to submit its position on these issues.

(Dk. 64).

On May 8, 1992, the defendant filed his supplement to the motion offering the following paragraph of argument in response to the court's questions:

Defendant asserts that there is no specific statutory authority known which relates directly to this issue. Instead, defendant Savely seeks the relief requested based upon its inherent supervisory power. The supervisory power theory "is premised on the inherent ability of the federal courts to `formulate procedural rules not specifically required by the Constitution of the Congress.'" United States v. McClintock, 748 F.2d 1278 at 1284 (9th Cir.1984) (quoting United States v. Hasting, 461 U.S. 499, 505 103 S.Ct. 1974, 1978, 76 L.Ed.2d 96 (1983)). A court's supervisory power permits the court to supervise the administration of criminal justice. Id. The supervisory power may be used not only to vindicate a defendant's rights, but also to preserve judicial integrity and/or to deter illegal or improper conduct. U.S. v. Hasting, supra 461 U.S. 499 at 505 103 S.Ct. 1974 at 1978, 76 L.Ed.2d 96 (1983); United States v. Carrasco, 786 F.2d 1452 (9th Cir.1986). "Under their supervisory power, courts have substantial authority to oversee their own affairs to ensure that justice is done." United States v. Simpson, 927 F.2d 1088 at 1089 (9th Cir.1991).

(Dk. 66 at 3). The defendant's counsel does not explain why she has concluded that the statutes and rules fail to afford her client an avenue for relief. None of the cases cited stand for the proposition that a court may use its supervisory powers to correct at any time an unlawful sentence.2 None of the cases cited hold that supervisory powers may be asserted without giving consideration to whether the argued law should be applied retroactively.3 At most, the defendant has argued the instant motion falls within the broad formulations of supervisory power that she has found in her research.4 Besides reiterating the inequity that the victims would suffer if the court were to apply Hughey retroactively, the prosecution takes issue with whether any of three purposes of supervisory powers would be served in this instance.5 The defendant has not filed a reply brief.

The court will not stumble down the poorly marked foot path of supervisory powers when the paved avenues of Rule 35 of the Federal Rules of Criminal Procedure and 28 U.S.C. § 2255 may be available.6 As phrased by the court, the defendant's argument is that the order of restitution was illegal because it includes amounts to individuals who were not victims of the offenses for which he was convicted.7 Consequently, the logical first choice is Rule 35. In an early case, the Supreme Court said it was proper to invoke Rule 35 when "the only question ... was whether the sentence imposed was illegal on its face." Heflin v. U.S., 358 U.S. 415, 418, 79 S.Ct. 451, 453, 3 L.Ed.2d 407 (1959).

Although Rule 35 has since been substantially amended, the version of Rule 35(a) applicable to offenses committed prior to November 1, 1987 provides8:

(a) Correction of Sentence. The court may correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner within the time provided herein for the reduction of sentence.

A Rule 35 motion is "`made in the original case.'" U.S. v. Henry, 709 F.2d 298, 313 (5th Cir.1983) (quoting Heflin, 358 U.S. at 418 n. 7, 79 S.Ct. at 453 n. 7). Rule 35 authorizes a court to correct an illegal sentence at any time, and the rule may be invoked even if the issue was not raised on direct appeal. U.S. v. Vigil, 818 F.2d 738, 740 (10th Cir.1987); U.S. v. Finley, 783 F.Supp. 1123, 1127 (N.D.Ill.1991); see Callanan v. U.S., 364 U.S. 587, 589 n. 3, 81 S.Ct. 321, 322 n. 3, 5 L.Ed.2d 312 (1961). The failure to object at trial does not constitute a waiver, for it is plain error to impose an illegal sentence. U.S. v. Vance, 868 F.2d 1167, 1169 (10th Cir.1989). Successive Rule 35 motions are permitted. Heflin v. U.S., 358 U.S. at 418 n. 7, 79 S.Ct. at 453 n. 7; U.S. v. Mazak, 789 F.2d 580, 581 (7th Cir. 1986). Consequently, the defendant appears to face no procedural barriers under Rule 35(a), and if he did, he would not be faulted for failing to object or appeal given the established precedent in Duncan. See U.S. v. Novey, 922 F.2d 624, 629 n. 5 (10th Cir.), cert. denied, ___ U.S. ___, 111 S.Ct. 2861, 115 L.Ed.2d 1028 (1991).

A sentence is illegal if it exceeds the statute under which the charge is lodged or, in other words, is one which the judgment of conviction does not authorize. U.S. v. Morgan, 346 U.S. 502, 506, 74 S.Ct. 247, 250, 98 L.Ed. 248 (1954); U.S. v. Peredo, 884 F.2d 1029, 1031 (7th Cir.1989); see also Hill v. U.S., 368 U.S. 424, 430, 82 S.Ct. 468, 472, 7 L.Ed.2d 417 (1962) (The "narrow focus" of Rule 35(a) is not implicated absent arguments that the punishment exceeds that prescribed by statute, that the punishment includes multiple terms for the same offense, or that "the terms of the sentence itself are legally or constitutionally invalid in any other respect.") In other words, a Rule 35(a) motion is proper "only when the sentence imposed exceeds the statutorily-authorized limits, violates the Double Jeopardy Clause, or is ambiguous or internally contradictory." U.S. v. Pavlico, 961 F.2d 440, 443 (4th Cir.) (citations omitted), cert. denied, ___ U.S. ___, 113 S.Ct. 144, 121 L.Ed.2d 96 (1992); see U.S. v. Celani, 898 F.2d 543, 544 (7th Cir.1990).

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    ...The case comes before the court on the government's motion to reconsider the order filed February 2, 1993, and published at 814 F.Supp. 1519 (D.Kan.1993). By that order, the court retroactively applied the decisions of Hughey v. U.S., 495 U.S. 411, 110 S.Ct. 1979, 109 L.Ed.2d 408 (1990), an......
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