United States v. Patrick Henry Earley , 816 F.2d 1428 ( 1987 )

ON REHEARING EN BANC

LOGAN, Circuit Judge.

The only issue in this appeal is whether a federal district judge who failed to state whether sentences he imposed were consecutive to or concurrent with a preexisting federal sentence may order, five months later and after the defendant was imprisoned, that the sentences were to be consecutive. The district judge described his later order as a “clarification ... to eliminate any ambiguity as to the Court’s intention.” R. I, 41.

Defendant, Patrick Henry Earley, was indicted on five counts and pleaded guilty in November 1984 to two counts of distributing controlled substances, offenses he committed in 1982 while on parole from a twenty-five-year federal sentence. Because of these offenses, Earley had been reincarcerated as a parole violator since 1982 on his earlier sentence; the parole board had specified a tentative re-release date of January 7, 1985.

On January 4, 1985, the district court conducted its sentencing hearing on the offenses at issue here. During the sentencing hearing the court commented that Earley had limited his exposure very substantially by his plea bargain, and declared that because Earley had shown a succession of criminal activity over time, the court saw no reason to credit him with any reduction of time beyond the plea bargain.¹ But the court did not state whether the new sentences would be served consecutively to or concurrently with the preexisting federal sentence, although during review of the presentence report counsel had informed the court of the recommitment for parole violation, R. II, 4, and the court, apparently referring to the January release date, mentioned that Earley had “just been required to serve out the punishment for another offense.” Id. at 13. The written judgment and probation/commitment order, signed and filed the same day, also did not state whether the new sentences were to be consecutive to or concurrent with the pre-existing sentence.²

Earley was placed in the Federal Reformatory at El Reno, Oklahoma. Less than three months later, on March 28,1985, Earley appeared with counsel before the parole commission, which scheduled a tentative release date of April 19, 1985. Because of protests it received, the parole commission determined on April 10, 1985, that none of Earley’s time spent on parole would be credited against his earlier conviction, resulting in a new tentative release date of December 5,1985. The commission also set another hearing for May 23, 1985. Apparently one of those complaining about Earley’s release date was the district judge who imposed the sentences on the new offenses in January. On May 3, 1985, sua sponte and without a hearing, the district judge entered the “clarification” order at issue here, stating that he had intended that “such total ten (10) year term was to be consecutive to, and not concurrent with, the sentence [Earley] was then serving.” R. I, 41. The effect of the May 3 order was to extend Earley’s prison term from 1996 to 2006, and to change his earliest eligibility for parole from December 5, 1985, to May 3, 1988.

Earley filed a petition to vacate the district court’s order, asserting that the increase in his sentence violated his rights under the Double Jeopardy Clause, and a motion to reduce or correct the sentencing under Fed.R.Crim.P. 35. The district court rejected his petition and motion, reasoning that the May 3 order was a clarifying order, not a new, enhanced sentence to which double jeopardy analysis would apply. The court further stated that the federal presumption that sentences run concurrently unless otherwise stated is overcome when it is clear the judge intended the sentences to run consecutively. We reverse.

Our decision here turns on the district court’s authority to make its May 3 order. The only statutes or rules we have found permitting a district court to make an order respecting a previously imposed sentence in a criminal case are Federal Rules of Criminal Procedure 35 and 36. Court decisions have recognized some additional power in a sentencing court to enhance or reduce a sentence originally imposed, within certain constitutional limits. We discuss these authorities.

I

Fed.R.Crim.P. 35(b) permits a district court to reduce a sentence, with or without a motion, within 120 days after sentence is imposed or after a mandate has issued from an appellate court pursuant to an appeal. Rule 35(a) permits correction of a sentence “imposed in an illegal manner,” within the same time constraints. The court’s sua sponte action fits neither provision, nor was it within the time limits of those rules.

Fed.R.Crim.P. 35(a) also allows the district court to correct an illegal sentence at any time. A sentence that is internally ambiguous or self-contradictory to the point that a reasonable person cannot determine what the sentence is may be found illegal. See, e.g., United States v. Patrick Petroleum Corp. of Michigan, 703 F.2d 94, 98 (5th Cir.1982); United States v. Faust, 680 F.2d 540, 542 (8th Cir.1982); United States v. Alverson, 666 F.2d 341, 347-48 (9th Cir.1982); United States v. Moss, 614 F.2d 171, 176 (8th Cir.1980); United States v. Solomon, 468 F.2d 848, 850-52 (7th Cir.1972), cert. denied, 410 U.S. 986, 93 S.Ct. 1513, 36 L.Ed.2d 182 (1973). Several courts have relied on dicta in Scarponi v. United States, 313 F.2d 950, 953 (10th Cir.1963), for the proposition that any ambiguous sentence is an illegal sentence, correctable under Rule 35(a).

But we have not held that all ambiguous sentences are illegal sentences. This court, and others, have taken the approach that most sentencing ambiguities can be resolved by reviewing the record to determine what the original sentence was; we have not permitted a district court to amend its original pronouncement. Thus, in Baca v. United States, 383 F.2d 154 (10th Cir.1967), cert. denied, 390 U.S. 929, 88 S.Ct. 868, 19 L.Ed.2d 994 (1968), we used the judgment and commitment order to ascertain the intent of the sentencing judge, from which we identified the terms of the sentence. Id. at 157. We reiterated this rule in United States v. Villano, 816 F.2d 1448 (1987), in which we stated that a written sentence and commitment order may be used to “clarify an ambiguous oral sentence by providing evidence of what was said from the bench.” At 1451; see also At 1453.

Here both the oral pronouncement by the judge and the written judgment and commitment order said nothing concerning whether the new sentences ran concurrently with or consecutively to the sentence Earley was already serving. The federal courts have adopted a presumption that federal sentences imposed at different times run concurrently, absent an express statement to the contrary. Our circuit recognized the presumption of concurrent sentences in Subas v. Hudspeth, 122 F.2d 85 (10th Cir.1941), in which we stated: “Absent clear language to the contrary, it is presumed that sentences imposed on more than one offense at the same time, or at different times, will run concurrently.” Id. at 87. This presumption has in effect become a rule of law. Recognizing it as such, Congress has, by a statute effective November 1, 1987, changed the rule to make federal sentences run consecutively if they are imposed at different times, as here, but kept the concurrency rule for multiple sentences imposed at the same time.³ Pub.L. No. 98-473, §§ 212(a)(2), 235(a)(1), 98 Stat. 1837, 2000, 2031-32 (1984), as amended by Pub.L. No. 99-217, § 4, 99 Stat. 1728 (1985) (to be codified at 18 U.S.C. § 3584(a)).

The presumption of concurrent sentences applies here.⁴ There is no fatal ambiguity which would render the January 4 sentences illegal and subject to correction by the district court under Fed.R.Crim.P. 35(a).⁵

II

Fed.R.Crim.P. 36 permits the district court to correct “clerical mistakes” at any time. See United States v. Preston, 634 F.2d 1285, 1294 (10th Cir.1980). There is no contention in this case that a clerical error was made; Rule 36 would not authorize the district court’s May 3 order.

III

Finally, the courts have recognized that a sentence does not have immediate “finality,” and the court has the power to make corrections or enhance or reduce the sentence for some interim period of time. Historically the courts have considered that the Double Jeopardy Clause imposes constitutional limits on the time within which the district court has the power to alter a sentence.

For example, in United States v. Davidson, 597 F.2d 230 (10th Cir.1979), the defendant was sentenced to two concurrent terms; the court did not state whether the terms were to run consecutively to or concurrently with a federal sentence the defendant already was serving. While the defendant was en route from his sentencing to the prison, the court radioed the escorting United States Marshal to return the defendant to the courthouse. The judge then informed the defendant in open court that his new sentences were to be served consecutively to his existing sentence. Because the defendant had not been transferred into executive custody and had not begun to serve his sentence when the judge clarified his intent, we affirmed the sentence as clarified, concluding that the sentencing procedure did not violate the Double Jeopardy Clause.

In common with most of the circuits, we have adhered to this bright-line rule to address double jeopardy concerns, locating a point of constitutional finality for the sentencing process that is generally coextensive with the court’s jurisdiction over the individual convicted and sentenced. United States v. Lawson, 670 F.2d 923, 929 (10th Cir.1982) (judge may increase sentence before defendant begins to serve it); United States v. Preston, 634 F.2d 1285, 1294 (10th Cir.1980) (settled law that “when the original sentencing process is construed to be a continuing one, where the defendant has not yet left the courtroom or is returned to the courtroom the same day, the trial judge may alter the sentence to correct a misstatement”); see also Borum v. United States, 409 F.2d 433 (D.C.Cir.1967), cert. denied, 395 U.S. 916, 89 S.Ct. 1765, 23 L.Ed.2d 230 (1969).

Recently, this approach has been called into question because of comments by the United States Supreme Court in United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980). But we do not think DiFrancesco requires a change in the approach we have heretofore taken. DiFrancesco recognizes the established federal practice under which a sentencing judge can recall a defendant and increase his sentence “at least (and we venture no comment as to this limitation) so long as he has not yet begun to serve that sentence.” Id. at 134. As discussed above, the federal rule locates finality where a convicted individual crosses a “bright line” from the jurisdiction of the courts to executive custody. DiFrancesco does not abolish the concept of constitutional finality from the sentencing process, but rather emphasizes that the location of the bright line of constitutional finality in the sentencing context may vary with the varying statutory provisions granting jurisdiction to the courts.

In most cases, the courts’ power to alter or correct sentences has been recognized as co-extensive with the courts’ basic sentencing power, extending through the end of the direct appeals and retrial process, limited only by the constitutional finality associated with acquittal on the merits. See North Carolina v. Pearce, 395 U.S. 711, 720, 89 S.Ct. 2072, 2078, 23 L.Ed.2d 656 (1969). Under the statute addressed in DiFrancesco, the courts’ power to make sentencing orders is extended by that statute’s specific provisions for government appeal of a sentence, “until the appeal is concluded or the time for appeal has expired.” DiFrancesco, 449 U.S. at 136, 101 S.Ct. at 437. The Court’s explanation of its reasoning suggests an analytic approach:

“Although it might be argued that the defendant perceives the length of his sentence as finally determined when he begins to serve it, and that the trial judge should be prohibited from thereafter increasing the sentence, that argument has no force where, as in the dangerous special offender statute, Congress has specifically provided that the sentence is subject to appeal. Under such circumstances there can be no expectation of finality in the original sentence.”

Id. at 139, 101 S.Ct. at 438.

Several circuits have considered the judge’s power to increase sentences after service commences since DiFrancesco. Most of these courts have continued to use double jeopardy analysis to determine the constitutionality of resentencing. They have focused on whether a defendant had a legitimate expectation that his sentence was final, recognizing with DiFrancesco that there can be no reasonable expectation of finality when a statute gives the government a right to appeal — at least not until expiration of the time for appeal to be taken.⁶

In United States v. Jones, 722 F.2d 632 (11th Cir.1983), the district court imposed a six-month prison term and a requirement of restitution on a defendant pleading guilty. Within a week the judge called the defendant back into court and instead imposed a four-year prison term. Although the commitment order was unsigned prior to imposition of the second sentence, the Eleventh Circuit found that the defendant had begun to serve his first sentence before the judge increased it. The circuit then rejected the judge’s second order, focusing on the defendant’s legitimate expectation of finality. Finding that there was no deception on the part of the defendant and no statute providing for sentence modification, the court ruled that “a sentence may not be altered in a manner prejudicial to the defendant after he has started serving the sentence.” Id. at 639 (footnote omitted). The Seventh Circuit appears to have adopted the same approach in United States v. Bishop, 774 F.2d 771, 776 (7th Cir.1985), but it refused to find any legitimate expectation of finality when a defendant had obtained modification of his original sentence through fraud and misrepresentation.⁷

DiFrancesco does not disestablish double jeopardy analysis in the law of sentencing; instead DiFrancesco establishes an appropriate framework for its application. Unless a statute or rule extends the sentencing process further, the limit imposed by double jeopardy analysis is coterminous with the limit of the court’s original sentencing authority — stopping the sentencing court’s power “at the jailhouse door.”⁸ In the present case defendant Earley took no appeal. He began service of the sentence nearly five months before the district court attempted to “clarify” its sentence. The district court acted too late. Accordingly, we hold that the sentences imposed January 4, 1985, will run concurrently with the previously imposed federal sentence.

REVERSED.

1 . The entire commentary by the district court was as follows:

"THE COURT: Mr. Earley’s pre-sentence report is one of the more remarkable ones that I have reviewed in nine years plus of attempting to find fair and appropriate sentences in criminal cases. It is one of the most serious and extensive criminal records that I have seen. I know nothing about Mr. Earley other than what I read in the report and what I have heard from what’s been said in this proceeding.

But, it does strike me that from an early age and throughout his lifetime, there has been just a succession of criminal activity that gives me absolutely no basis for expecting or hoping for any kind of rehabilitation in the case.

Ordinarily, and in any criminal case, a plea of guilty itself gives the sentencing judge some basis for positive expectations in regard to the Defendant. There is hardly any basis for that in this case.

Mr. Earley has certainly made a very favorable plea bargain, however, and severely limited his total exposure to punishment as a result of the favorable plea agreement. And, there’s nothing wrong with that, it is encouraged and it's perfectly legitimate. In doing so, he has limited his exposure very substantially and has the benefit of having done so. But, beyond that, there is simply no reason that I can find to credit Mr. Earley with any reduction in time. His probation violation argument is not persuasive in light of the fact that he has actually just been required to serve out the punishment for another offense. All he had to do to avoid that was not break the law. And, he saw fit to engage in narcotics trafficking, which is a very serious offense. And, under all these circumstances, I simply find that he gets the benefit of his plea agreement. But there is no basis for any other consideration.

And, accordingly, it is the judgment of the Court that on each of Counts 1 and 3, the Defendant is committed to the custody of the Attorney General, or his authorized representative, for imprisonment for a term of five years to run consecutively for a total of ten years, and to serve a special parole term of life. You will be remanded at this time.”

R. II, 12-13 (emphasis added).

2 . The sentence order reads as follows: "... five (5) years on each of Counts 1 and 3, to run consecutively with each other and the defendant to serve a special parole term of life." R. I, 29.

3 . The accompanying Senate Report characterized present federal law as follows:

‘‘Existing law permits the imposition of either concurrent or consecutive sentences, but provides courts with no statutory guidance in making the choice. Terms of imprisonment imposed at the same time are deemed to run concurrently rather than consecutively if the sentencing court has not specified otherwise____ 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.”

S.Rep. No. 225, 98th Cong., 2d Sess. 126, reprinted in 1984 U.S.Code Cong. & Ad.News 3182, 3309 (citing Subas v. Hudspeth, 122 F.2d 85 (10th Cir.1941)) (footnotes omitted).

4 . The United States argues that the presumption of concurrent sentences should not apply in the instant case because the district court clearly always intended for the sentences to run consecutively. The government relies principally on United States v. Wenger, 457 F.2d 1082 (2d Cir.), cert. denied, 409 U.S. 843, 93 S.Ct. 44, 34 L.Ed.2d 83 (1972), in which the court held that sentences would run consecutively, based on the defendant's knowledge of the judge’s intention, although the defendant had begun serving time. The court there relied on explicit statements by the defendant's counsel to evidence an understanding that the terms would run consecutively. Id. at 1085-86.

The district judge here found that both Earley and his attorney understood the sentences were to run consecutively, but the judge relied solely on his own statements at the sentencing proceeding. These statements generally reflect the judge’s conviction that Earley should be punished severely, and might be read to evidence the judge’s intention that the sentences run consecutively to the earlier sentence. They may be read as plausibly, however, as explanations for the court’s decision to require Earley's two new sentences to be served consecutively. In fact, the prosecutor had made a specific request that the two new terms run consecutively to each other.

There is no evidence in the record to support a conclusion that Earley or his counsel was aware the court intended the new sentences also to run consecutively to the term Earley already was serving. The cases require some objective evidence demonstrating that the defendant was aware of the court’s intent at sentencing. United States v. Naas, 755 F.2d 1133, 1136 (5th Cir.1985) (clear evidence the defendant knew of the court’s intent is required to rebut the presumption); Wenger, 457 F.2d at 1084-86; see also United States v. Bussey, 543 F.Supp. 981, 984 (E.D.Va.1982).

5 . The new Fed.R.Crim.P. 35, to become effective November 1, 1987, will provide even less basis for an order like that before us. It provides:

"Rule 35. Correction of Sentence

(a) Correction of a Sentence on Remand. The court shall correct a sentence that is determined on appeal under 18 U.S.C. 3742 to have been imposed in violation of law, to have been imposed as a result of an incorrect application of the sentencing guidelines, or to be unreasonable, upon remand of the case to the court—

(1) for imposition of a sentence in accord with the findings of the court of appeals; or

(2) for further sentencing proceedings if, after such proceedings, the court determines that the original sentence was incorrect.

(b) Correction of Sentence for Changed Circumstances. The court, on motion of the Government, may within one year after the imposition of a sentence, lower a sentence to reflect a defendant’s subsequent, substantial assistance in the investigation or prosecution of another person who has committed an offense, to the extent that such assistance is a factor in applicable guidelines or policy statements issued by the Sentencing Commission pursuant to 28 U.S.C. 994(a)."

6 . These circuits also have applied DiFrartcesco’s reasoning to permit increased sentences after service commences when a defendant convicted of multiple offenses succeeds in overturning some but not all of the convictions on appeal. Because the original sentencing in such cases amounts to a "package" of concurrent and consecutive terms on multiple convictions, the appealing defendant cannot claim an expectation that the sentence on any particular count is irrevocably final. See United States v. Bello, 767 F.2d 1065, 1070 (4th Cir.1985); United States v. Jefferson, 714 F.2d 689, 706-07 (7th Cir.1983), vacated on other grounds, — U.S. -, 106 S.Ct. 41, 88 L.Ed.2d 34 (1985); McClain v. United States, 676 F.2d 915, 918 (2d Cir.), cert. denied, 459 U.S. 879, 103 S.Ct. 174, 74 L.Ed.2d 143 (1982); United States v. Busic, 639 F.2d 940, 950 (3d Cir.), cert. denied, 452 U.S. 918, 101 S.Ct. 3055, 69 L.Ed.2d 422 (1981). Cf. United States v. Naas, 755 F.2d 1133, 1136 (5th Cir.1985) (applying double jeopardy analysis without discussing DiFrancesco).

7 . The one post-DiFrancesco case essentially rejecting double jeopardy analysis is United States v. Lundien, 769 F.2d 981 (4th Cir.1985). In Lundien, the court shifted its reliance to the Due Process Clause to limit a district court’s power to increase punishment through resentencing after service begins. Id. at 986. The Fourth Circuit found that a defendant who had served only five days of an expected sentence of ten years and had not reached his final prison destination did not have a "crystallized” expectation regarding the final length of his sentence such that the district court could not correct an inadvertent mistake.

But Lundien did not cite a Fourth Circuit case from a month before in which the panel appeared to adopt a double jeopardy analysis. In United States v. Bello, 767 F.2d 1065 (4th Cir.1985), the court focused its analysis “on the defendant’s legitimate expectation of finality in the length of his sentence.” Id. at 1070 n. 9. Although the court eventually rejected the defendant’s double jeopardy claim because the defendant had appealed a sentencing package, it appeared to leave open the possibility that it would recognize a double jeopardy claim in appropriate circumstances. Id.

8 . We need not consider in the present case whether constitutional due process concerns would place an outer temporal limit on the power of a court under the Federal Rules of Criminal Procedure to correct an illegal sentence or clerical error, even though Rules 35 and 36 place no time limits on the court’s power of correction in this regard. See Breest v. Helgemoe, 579 F.2d 95, 101 (1st Cir.), cert. denied, 439 U.S. 933, 99 S.Ct. 327, 58 L.Ed.2d 329 (1978) (addressing due process issue).

Using the due process analysis suggested in Breest and by the Fourth Circuit in United States v. Lundien, 769 F.2d 981 (4th Cir.1985), supra note 7, Earley clearly had a conditionally "date certain” or “crystallized” expectation regarding the length of his sentence no later than March 28, 1985, when he appeared with counsel before the parole commission and it established a release date for him.