United States v. Washington ( 2008 )


Menu:
  •                                                                                                                            Opinions of the United
    2008 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    12-11-2008
    USA v. Washington
    Precedential or Non-Precedential: Precedential
    Docket No. 07-1884
    Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008
    Recommended Citation
    "USA v. Washington" (2008). 2008 Decisions. Paper 14.
    http://digitalcommons.law.villanova.edu/thirdcircuit_2008/14
    This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
    University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova
    University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
    PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    Nos. 07-1523, 07-1884 & 07-2541
    UNITED STATES OF AMERICA,
    v.
    RAYMOND WASHINGTON,
    a/k/a Talib Alim,
    Raymond Washington,
    Appellant
    UNITED STATES OF AMERICA,
    v.
    RAYMOND EDWARD WASHINGTON,
    a/k/a Talib Alim,
    a/k/a Kennard Gregg,
    Raymond Edward Washington,
    Appellant
    IN RE: RAYMOND EDWARD WASHINGTON.
    a/k/a Talib Alim,
    a/k/a Kennard Gregg,
    Raymond Edward Washington,
    Petitioner
    On Appeal from the Order of the United States District Court
    for the Eastern District of Pennsylvania
    (No. 04-cr-00103)
    District Judge: Honorable John R. Padova
    On Appeal from the Judgment of the United States District Court
    for the Eastern District of Pennsylvania
    (No. 06-cr-00460)
    District Judge: Honorable Stewart Dalzell
    On Petition for Writ of Mandamus
    (Related to E.D. Pa. No. 04-cr-00103)
    Argued: October 27, 2008
    Before: SLOVITER, GREENBERG, Circuit Judges, and
    IRENAS,* Senior District Judge.
    (Filed: December 11, 2008)
    David L. McColgin, Esq. (Argued)
    Maureen Kearney Rowley, Esq.
    Federal Community Defender Office for the Eastern District of
    Pennsylvania
    Suite 540 West - Curtis Center
    601 Walnut Street
    Philadelphia, PA 19106
    Counsel for Appellant
    Patrick L. Meehan, Esq.
    Robert A. Zauzmer, Esq.
    Stephen A. Miller, Esq. (Argued)
    Office of the United States Attorney
    615 Chestnut Street, Suite 1250
    Philadelphia, PA 19106
    *
    Honorable Joseph E. Irenas, Senior United States District
    Judge for the District of New Jersey, sitting by designation.
    2
    Counsel for Appellee
    _____________
    OPINION
    IRENAS, Senior United States District Judge.
    This case arises from two consolidated appeals and a
    Petition for Writ of Mandamus brought by Raymond E.
    Washington, a/k/a Talib Alim, a/k/a Kennard Gregg. Number
    07-1884 is an appeal on Double Jeopardy grounds of the district
    court’s (Padova, J.) order vacating Washington’s sentence for
    dealing counterfeit currency and scheduling a date to resentence
    him. Number 07-2541 is a Petition for Writ of Mandamus
    and/or Prohibition to Bar Second Sentencing, seeking to prevent
    the district court (Padova, J.) from resentencing Washington.
    Finally, No. 07-1523 is an appeal from Washington’s conviction
    and sentence before a second district court (Dalzell, J.), for
    making false statements in the course of the earlier counterfeit
    currency case before Judge Padova. For the reasons set forth
    below, we issue a writ of mandamus directing the district court
    (Padova, J.) to vacate his order of March 20, 2007, which
    vacated the original sentence in the counterfeiting case, and we
    reverse the district court’s (Dalzell, J.) sentence for the false
    statements conviction and remand for resentencing. We dismiss
    Washington’s Double Jeopardy appeal as moot.
    I.
    A.
    In December 2003, the United States Secret Service
    learned that an individual known as “Kennard Gregg” was
    passing counterfeit currency at the Veterans Affairs Medical
    Center in Philadelphia. The person in question was in fact
    Appellant, Raymond E. Washington (“Washington”), who was
    using Kennard Gregg’s Veterans Affairs card to receive
    methadone treatment from the VA Medical Center. On January
    3
    28, 2004, Washington was arrested for knowingly selling
    counterfeit federal reserve notes in violation of 18 U.S.C. § 473.
    At the time of his arrest, Washington identified himself to the
    United States Secret Service as “Kennard Gregg” and provided
    Kennard Gregg’s date of birth and Social Security number. He
    signed a Miranda waiver, statement, and Waiver of Right to
    Speedy Trial using the name “Kennard Gregg,” or initials
    “K.G.” Washington also told Pretiral Services that he was
    “Kennard Gregg” following his arrest.1
    On March 22, 2004, Washington, still using the name
    “Kennard Gregg,” pled guilty to Information No. 04-103
    charging him with violating 18 U.S.C. § 473. During the plea,
    Washington was sworn in under the name “Kennard Gregg,”
    entered the actual plea in that name, and responded to that name
    or acknowledged to the court that he was “Kennard Gregg” no
    fewer than nine times.
    On June 23, 2004, Judge Padova sentenced Washington
    (under the name “Kennard Gregg”) to a term of imprisonment of
    six months, three years of supervised release, restitution of $350,
    and a special assessment of $200. During the sentencing
    hearing, Washington was again sworn in under the name
    “Kennard Gregg,” and was warned that his answers “would be
    subject to the penalties of perjury, or of making a false
    statement, if [he did] not tell the truth.” Judge Padova relied on
    the presentence investigation report prepared by United States
    Probation Office. Throughout the presentencing investigation,
    Washington provided a mix of his own biographical information
    and what he knew about the real Kennard Gregg. Based on the
    information obtained, “Gregg’s” criminal history category was
    two and the total offense level was nine, yielding a Sentencing
    Guidelines range of six to twelve months. Had Washington’s
    criminal history been properly calculated using his true record,
    1
    While fingerprint cards generated by both the United
    States Secret Service and the United States Marshals Service were
    sent to the FBI, there is, as of yet, no explanation why
    Washington’s true identity was not discovered at that time.
    4
    his criminal history category would have been four and his
    offense level nine, yielding a Guidelines range of twelve to
    eighteen months. Again, during the sentencing hearing
    Washington responded to the court under the name “Gregg” no
    fewer than five times.
    Washington appealed his sentence, still using the name
    “Kennard Gregg,” arguing that the restitution order violated the
    holding in United States v. Booker, 
    543 U.S. 220
    , 
    125 S. Ct. 738
    ,
    
    160 L. Ed. 2d 621
    (2005). The appeal was initially argued on
    June 8, 2005, and then was consolidated with two other cases
    and reheard en banc on November 1, 2005. We ultimately
    rejected Washington’s argument. See United States v. Leahy,
    
    438 F.3d 328
    (3d Cir. 2006) (en banc); United States v. Gregg,
    169 Fed. App’x 109 (3d Cir. 2006). Washington then filed a
    petition for writ of certiorari with the United States Supreme
    Court which was denied. Gregg v. United States, 
    127 S. Ct. 660
    ,
    
    166 L. Ed. 2d 547
    (2006). Washington used the name “Kennard
    Gregg” throughout all of these proceedings.
    At the time of his arrest on the counterfeiting charge,
    Washington was the subject of a state parole warrant issued on
    July 18, 1995, after he had absconded while on parole from a
    New Jersey conviction. He had remained a fugitive until his
    federal arrest.
    The United States Bureau of Prisons discovered
    Washington’s true identity while he was serving his federal
    sentence. The State of New Jersey learned that Washington was
    in federal custody, and on July 26, 2004, issued a fugitive
    warrant. Upon completing his federal term of incarceration, he
    was released to New Jersey authorities on January 3, 2005, and
    remained in custody in New Jersey until his release on December
    12, 2005.
    Following his release from New Jersey custody, on
    January 11, 2006, Washington met with probation officer Tomas
    Adamczyk. It was at this point that Washington disclosed his
    true identity to Mr. Adamczyk in order to avoid spending 30
    5
    days in an in-patient mental health program.2 Washington came
    clean to Mr. Adamczyk, explaining that Gregg was someone he
    knew and that he used Gregg’s VA card and personal
    information (with Gregg’s permission) to get free methadone
    treatment because Washington was not a veteran. Washington
    admitted using the false name to avoid the outstanding warrant
    stemming from the 1995 New Jersey parole violation. He
    further admitted that the biographical information he had
    provided before was a mix of what he knew about Gregg and his
    own. Finally, Washington admitted to knowing that the criminal
    history in the presentence report was Gregg’s and not his.
    On July 17, 2006, after learning this information, the
    government moved to vacate the original sentence and sought
    resentencing on the ground that the original sentence was based
    on false representations to the court. Washington argued that the
    district court lacked jurisdiction to alter the sentence and that a
    second sentencing would violate the Double Jeopardy Clause.
    The court found that it had the “inherent power to vacate
    judgments procured by fraud,” and that Washington’s double
    jeopardy rights would not be violated by resentencing. United
    States v. Gregg, No. 04-103, 
    2006 WL 2850564
    , at *3, *4 (E.D.
    Pa. Oct. 3, 2006). Therefore, the court ordered an evidentiary
    hearing to determine if Washington had actually perpetrated
    fraud on the court. 
    Id. at *5.
    Following the evidentiary hearing,
    on March 20, 2007, the court concluded that Washington had
    perpetrated fraud on the court, vacated Washington’s sentence,
    and scheduled a resentencing (which has been stayed pending
    this appeal). United States v. Gregg, No. 04-00103, slip op. at 1
    2
    Mr. Adamczyk had been assigned to Washington’s case
    because he specialized in probation cases with mental health
    concerns, and the real Kennard Gregg had a history of mental
    illness. Additionally, at the March 22, 2004 plea, Washington told
    the court that he was under the care of a psychiatrist and taking
    “Prozac, Treadon, Tresadine and Rosadern or something like that,
    for hearing and seeing things.”
    6
    (E.D. Pa. Mar. 20, 2007).3
    B.
    While proceedings were pending before Judge Padova,
    Washington was indicted on September 5, 2006, on three counts
    of making false statements in violation of 18 U.S.C. § 1001 by
    knowingly and willfully ma[king] materially false,
    fictitious, and fraudulent statements and representations
    in that defendant WASHINGTON represented that his
    name was “Kennard Gregg,” the name of another
    individual known to defendant WASHINGTON, and
    provided a sworn statement [and signed documents] using
    the name “Kennard Gregg,” when, as the defendant knew,
    his name was and is RAYMOND WASHINGTON.
    This indictment covered the statements made to the United
    States Secret Service (Count I), the United States Pretrial
    Services Office for the Eastern District of Pennsylvania (Count
    II), and the United States Probation Office for the Eastern
    3
    The district court’s memorandum opinion stated:
    We find that Defendant intentionally provided false
    information to the Court in connection with his sentencing.
    Defendant intentionally and continuously used the identity
    of Kennard Gregg following his arrest in order to avoid a
    warrant for his arrest on a New Jersey probation violation.
    Defendant intentionally provided false information
    regarding his personal and family history to the probation
    officer and to this Court during his guilty plea and
    sentencing hearings, information that we considered in
    connection with Defendant’s sentencing. We conclude that
    Defendant’s sentence was based on fraudulent information
    submitted by Defendant.
    United States v. Gregg, No. 04-00103, slip op. at 5 (E.D. Pa. Mar.
    20, 2007). The district court ordered the name in the caption of the
    case be amended to “Raymond Edward Washington, a/k/a Talib
    Alim, a/k/a Kennard Gregg.” 
    Id. at 1.
    7
    District of Pennsylvania (Count III). On November 16, 2006,
    Washington pled guilty to all three counts before Judge Dalzell.
    The sentencing hearing took place on February 20, 2007.
    Without objection, the court adopted the presentence
    investigation report (PSR) as the findings of the court. The PSR
    found the total offense level to be four and the criminal history
    category to be five, with a resulting Guidelines range of four to
    ten months.
    The court took judicial notice of all the instances in which
    Washington had used the name “Kennard Gregg,” including a
    signed bond and affidavit before the magistrate judge, his guilty
    plea and sentencing before Judge Padova, the affidavit opposing
    the Motion to Vacate Sentence, and the Motion to Stay Pending
    Appeal. The court also recounted the number of federal judges
    to whom Washington lied, naming all the judges of this Court
    sitting en banc and the Supreme Court Justices who denied the
    writ of certiorari.4 The court suggested, and later found, that
    each was an uncharged violation of 18 U.S.C. § 1001. The court
    stated that, “I’m hard put to think of what could be worse in this
    kind of violation of this particular statute.” In noting the need
    for deterrence, the court stated:
    That’s rather important here, isn’t it; that people, I mean,
    if somebody could have the wholesale protracted
    deception of the entire, literally all four, if you want to
    consider magistrates judges, a level, all four levels of the
    federal judicial system, of lying on the most material of
    fact. If you got four months for that, that would be a joke,
    in view of that, wouldn’t it? . . . It would have virtually no
    deterrent effect.
    The court took a brief recess to print out the docket
    entries from the appeal in United States v. Kennard Gregg, as
    4
    At the time of the rehearing en banc, now Justice Alito was
    still a member of the Court of Appeals, and therefore did not
    participate in the consideration of the petition for writ of certiorari.
    8
    well as a Westlaw KeyCite showing the denial of the writ of
    certiorari. It concluded that Washington, through his deception,
    had benefitted “to the tune of criminal history two versus
    criminal history five, to say nothing of the open matter in New
    Jersey.” 5 In addition to Washington’s prior convictions, the
    court also took note of his seven probation and parole violations
    (with another violation pending) suggesting that Washington
    would not be amenable to supervision.
    After hearing from defense counsel and Washington
    himself, the court considered the Guidelines and the other §
    3553(a) factors in deciding on a sentence. It found that “it is
    undisputed that the advisory guidelines range is four to ten
    months.” The court then reiterated all of the federal judges to
    whom Washington misrepresented his identity under oath.
    As violations of 18 U.S.C. 1001 go, as I said to the
    prosecutor, so I say now, as a finding, I cannot imagine a
    more serious violation of this statute, in that a total of 22
    federal judges were actively misled into thinking this
    defendant was someone other than the person he was
    impersonating. And, therefore, 22 federal judges were
    actively misled.
    As the prosecutor rightly points out, this goes to
    the very heart of what the federal judiciary is all about,
    which is the quest for truth and to deal with reality and
    that most assuredly didn’t happen here.
    So this was as serious as it conceivably could be in
    violating this statute.
    The court also found that there were not any mitigating factors,
    and that there is a need to protect the public from further crimes
    of the defendant. The court concluded:
    5
    Judge Dalzell was relying on the PSR from the case before
    him, and not the one from the case before Judge Padova, which
    correctly noted that Washington would have had a criminal history
    of four had the correct information been given.
    9
    So, I will, under all of these circumstances, I should also
    stress the need to deter others from such egregious,
    egregiously material misleading federal judges in their
    work, that a sentence with in the advisory guideline range
    would be counterproductive, and indeed would encourage
    the kind of conduct that is just so off the chart as we have
    seen here.
    Judge Dalzell sentenced Washington to five years imprisonment
    (the statutory maximum), three years of supervised release, a
    fine of $250, and a special assessment of $300.
    II.
    The district court’s order vacating the sentence constitutes
    a final appealable decision for the purposes of considering
    questions of Double Jeopardy under the “collateral order
    doctrine” and thus we have jurisdiction pursuant to 28 U.S.C. §
    1291. See Abney v. United States, 
    431 U.S. 651
    , 662, 
    97 S. Ct. 2034
    , 2042, 
    52 L. Ed. 2d 651
    (1977). We have jurisdiction to
    issue a writ of mandamus pursuant to 18 U.S.C. § 1651. We
    exercise plenary review over questions of law. United States v.
    Hull, 
    456 F.3d 133
    , 137 (3d Cir. 2006). A writ of mandamus
    requires Appellant to show a clear error of law, that will cause
    irreparable injury, and that no other adequate means of relief
    exists. United States v. Wexler, 
    31 F.3d 117
    , 128 (3d Cir. 1994).
    We have jurisdiction to review a sentence imposed on the
    defendant by the district court pursuant to 18 U.S.C. § 3742 and
    28 U.S.C. § 1291. We review a district court’s sentence under
    an abuse of discretion standard. United States v. Wise, 
    515 F.3d 207
    , 217 (3d Cir. 2008).
    III.
    The district court (Padova, J.) concluded that it possessed
    the “inherent power” to vacate its own judgment when the
    judgment was procured by fraud on the court, and furthermore
    that such “inherent power” was not limited by 18 U.S.C. §
    3582(c) or Federal Rule of Criminal Procedure 35. Gregg, 2006
    
    10 WL 2850564
    , at *1-3. However, no such “inherent power”
    exists, and to the extent that it might have at one point existed,
    such power has clearly been abrogated by both statute and rule.
    Because the district court’s reliance on such power was a clear
    error of law, a writ of mandamus will be issued.
    A.
    The theory that a federal court has the inherent power to
    vacate its own judgments when they have been procured by
    fraud was recognized in Hazel-Atlas Glass Co. v. Hartford-
    Empire Co., 
    322 U.S. 238
    , 
    64 S. Ct. 997
    , 
    88 L. Ed. 1250
    (1944),
    and again in Chambers v. NASCO, Inc., 
    501 U.S. 32
    , 
    111 S. Ct. 2123
    , 
    115 L. Ed. 2d 27
    (1991). In Chambers, the Supreme Court
    held a federal court has the inherent power “to vacate its own
    judgment upon proof that a fraud has been perpetrated upon the
    court.” 
    Id. at 44,
    111 S.Ct. at 2132. The Court explained:
    This “historic power of equity to set aside fraudulently
    begotten judgments” is necessary to the integrity of the
    courts, for “tampering with the administration of justice
    in [this] manner . . . involves far more than an injury to a
    single litigant. It is a wrong against the institutions set up
    to protect and safeguard the public.”
    
    Id. (quoting Hazel-Atlas,
    322 U.S. at 
    245-46, 64 S. Ct. at 1001
    )
    (internal citation omitted). The Court acknowledged that lower
    federal courts’ inherent powers could be limited by statute and
    rule because those courts were created by an act of Congress. 
    Id. at 47,
    111 S.Ct. at 2134. “Nevertheless, ‘we do not lightly
    assume that Congress has intended to depart from established
    principles’ such as the scope of a court’s inherent power.” 
    Id. (quoting Weinberger
    v. Romero-Barcelo, 
    456 U.S. 305
    , 313, 
    102 S. Ct. 1798
    , 1803, 
    72 L. Ed. 2d 91
    (1982)).
    However, both Hazel-Atlas and Chambers are civil
    11
    cases.6 In the criminal context, the Supreme Court has held that
    district courts lack “inherent supervisory power” to enter an
    untimely judgment of acquittal sua sponte when doing so is in
    clear contradiction of Federal Rule of Criminal Procedure 29(c).
    Carlisle v. United States, 
    517 U.S. 416
    , 425-28, 
    116 S. Ct. 1460
    ,
    1466-67, 
    134 L. Ed. 2d 613
    (1996). The Court explained,
    “[w]hatever the scope of this ‘inherent power,’ however, it does
    not include the power to develop rules that circumvent or
    conflict with the Federal Rules of Criminal Procedure.” 
    Id. at 426,
    116 S.Ct. at 1466. The Court recognized its holding in
    Chambers, but distinguished it “not only because of the clarity of
    the text [of Rule 29(c)], but also because we are unaware of any
    ‘long unquestioned’ power of federal district courts to acquit for
    insufficient evidence sua sponte, after return of a guilty verdict.”
    
    Id. Likewise, this
    Court is unaware of “any ‘long unquestioned’
    power of federal district courts” to vacate a judgment procured
    by fraud in the criminal context. 
    Id. In vacating
    Washington’s sentence, the district court
    relied extensively on the Seventh Circuit’s holding in United
    States v. Bishop, 
    774 F.2d 771
    (7th Cir. 1985), and our holding
    in United States v. Kendis, 
    883 F.2d 209
    (3d Cir. 1989).
    However, such reliance was misplaced. In Bishop, the
    government moved to vacate an order which modified Bishop’s
    federal sentence to run concurrently with his state sentence, after
    it discovered that the modification had been procured by the
    defendant’s fraud. 
    Bishop, 774 F.2d at 772-73
    . The district
    court held a hearing, found that Bishop had intentionally misled
    the court, vacated its earlier order reducing his sentence, and
    reimposed the original sentence of three years. 
    Id. at 773.
    Bishop appealed, arguing both that the court was without
    jurisdiction because the modification was sought outside of the
    120 day period then provided by Rule 35(b) 7 and that it violated
    6
    While Federal Rule of Civil Procedure 60(b)(3) effectively
    codifies the rule of Hazel-Atlas, there is no corresponding Federal
    Rule of Criminal Procedure.
    7
    Bishop was decided under the old Federal Rule of Criminal
    Procedure 35, and prior to 18 U.S.C. § 3582 coming into effect. As
    12
    the Double Jeopardy Clause. 
    Id. The Seventh
    Circuit rejected Bishop’s Rule 35(b)
    argument, concluding that the fact that Hazel-Atlas was a civil
    case “does not change the result.” 
    Id. at 774
    n.5. “It is the
    power of the court to correct the judgment gained through fraud
    which is determinative and not the nature of the proceeding in
    which the fraud was committed.” 
    Id. But the
    court did not
    elaborate on its reasoning, and only cited Trueblood Longknife v.
    United States, 
    381 F.2d 17
    (9th Cir. 1967), where the court had
    revoked probation as a result of discovering fraud.
    Prior to the 1985 holding in Bishop, federal courts had
    been sentencing criminal defendants for nearly 200 years, and
    we can find no body of law recognizing a federal court’s
    inherent power to vacate a sentence at some indeterminate time
    after the sentence is rendered on the basis of a fraud occurring at
    the time of sentencing.8 We are unpersuaded that a case from
    another circuit, based on unsupported assertions of past
    discussed below, Part III.B infra, the structure of Rule 35 has been
    fundamentally changed since Bishop was decided.
    8
    One district court has also held that “[t]he authority of the
    Court to correct judgments obtained by fraud applies to criminal,
    as well as to civil cases, and is not limited by Rule 35(b) of the
    Federal Rules of Criminal Procedure.” United States v. Gray, 
    708 F. Supp. 458
    , 460 (D. Mass. 1989). However, Gray only cites
    Bishop.
    Recently, another district court asked the Eighth Circuit to
    remand a case so that it could vacate the sentence it imposed based
    on the defendant’s misrepresentations and resentence the defendant
    during the pendency of his appeal, citing Bishop for the “inherent
    power to correct judgments obtained through . . . intentional
    misrepresentation.” United States v. Fincher, No. 06-50064, 
    2007 WL 2177062
    , at *9-10 (W.D. Ark. Jul. 27, 2007). In denying that
    request, the Eighth Circuit questioned “whether the district court
    has jurisdiction to resentence a defendant in the absence of
    statutory authority to do so.” United States v. Fincher, 
    538 F.3d 868
    , 878 (8th Cir. 2008).
    13
    precedent, should form the basis of such a fundamental
    expansion of judicial powers.9
    The district court also relied on our decision in United
    States v. Kendis, where the defendant was facing five years in
    prison for bank fraud. 
    883 F.2d 209
    (3d Cir. 1989). However,
    the trial judge sentenced him to six months in prison followed by
    five years probation. 
    Id. at 210.
    Unknown to the court, Kendis
    continued to perpetrate other bank frauds after his plea, both
    before and after his sentencing, and Kendis was subsequently
    charged with five additional counts of bank fraud. 
    Id. As a
    9
    The government attempts to demonstrate the historical
    existence of such a power by relying on two state court decisions:
    Goene v. State, 
    577 So. 2d 1306
    (Fla. 1991) and State v. Foster,
    
    484 N.W.2d 113
    (N.D. 1992). However, these cases are inapposite
    because unlike state courts, federal courts are courts of limited
    jurisdiction and only have the powers that Congress and the
    Constitution have provided them. See generally Northwest
    Airlines, Inc. v. Transp. Workers Union of Am., 
    451 U.S. 77
    , 95,
    
    101 S. Ct. 1571
    , 1582, 
    67 L. Ed. 2d 750
    (1981) (“[F]ederal courts,
    unlike their state counterparts, are courts of limited jurisdiction that
    have not been vested with open-ended lawmaking powers.”)
    Furthermore, both cases are distinguishable. Each defendant, like
    Washington, lied about his name during sentencing in order to hide
    an extensive criminal history. However, in Goene, the trial court
    specifically couched its ruling in the alternative, relying on two
    specific Florida Rules of Criminal Procedure in addition to its
    inherent authority to correct a sentence. 
    Goene, 577 So. 2d at 1307
    n.1. The Florida Supreme Court did not address those issues, but
    merely looked at the question of whether there was a violation of
    Double Jeopardy. 
    Id. at 1307-09.
    In Foster, the North Dakota
    Supreme Court recognized, “as a general proposition, a court of
    law has the inherent authority to correct judgments obtained
    through fraud,” relying on North Dakota Rule of Criminal
    Procedure 35 (which resembled the pre-1987 Federal Rule 35) and
    Bishop. 
    Foster, 484 N.W.2d at 117
    . However, as discussed,
    reliance on Bishop and the pre-1987 Rule 35 for the present or past
    existence of this inherent power in federal courts is not persuasive.
    14
    result, the court held a hearing to revoke Kendis’s probation,
    vacated its original sentence, and resentenced Kendis to four
    years incarceration. 
    Id. The issue
    in Kendis was whether the court was permitted
    to revoke probation based on a defendant’s actions prior to
    sentencing. We held that “revocation of probation is permissible
    when defendant’s acts prior to sentencing constitute a fraud on
    the court.” 
    Id. In 1987,
    when the district court took the action being
    considered in Kendis, revocation of probation and the
    accompanying procedure were governed by 18 U.S.C. §§ 3651
    and 3653. Those sections provided that the court “may revoke
    or modify any condition of probation, or may change the period
    of probation,” 18 U.S.C. § 3651, and that following revocation,
    if the original sentence was suspended, the court may “impose
    any sentence which might have originally been imposed.” 18
    U.S.C. § 3653. Furthermore, § 3653 allowed for the probation
    officer to arrest the probationer for cause “[a]t any time within
    the probation period.” 
    Id. We made
    no holding in that case
    regarding the “inherent power” of a district court to vacate
    Kendis’s probation and resentence him. The revocation of
    probation and subsequent resentencing were specifically
    permitted by statute, and nothing in the statute dealt with the
    effect of the timing of the fraud. We merely interpreted §§ 3651
    and 3653 to permit revocation based on a fraud on the court that
    occurred prior to the imposition of the probationary sentence or
    the commencement of the period of probation, a result not
    inconsistent with the language of the applicable statutes.
    Probation is still governed by different rules and statutes than
    those which govern sentences of imprisonment.10
    10
    Sentences of probation are currently governed by 18
    U.S.C. §§ 3561-66 and Federal Rule of Criminal Procedure 32.1.
    However, even under the current framework, the court may still
    revoke probation for a violation that takes place “at any time prior
    to the expiration or termination of the term of probation,” and
    “resentence the defendant.” 18 U.S.C. § 3565(a).
    15
    Given the absence of authority suggesting a longstanding
    inherent power of a district court to vacate a criminal sentence
    based on fraud, other than Bishop and its limited progeny, we
    find that there is no “‘long unquestioned’ power of federal
    district courts” to vacate a judgment procured by fraud in the
    criminal context. Carlisle, 517 U.S. at 
    426, 116 S. Ct. at 1466
    .
    B.
    To the extent district courts may have ever had the
    inherent power to vacate a sentence procured by fraud, such
    power was abrogated by the enactment of 18 U.S.C. § 3582(c)
    and the amendments to Federal Rule of Criminal Procedure 35.
    As discussed above, the Supreme Court has distinguished its
    holding in Chambers in the criminal context when the text of the
    governing Federal Rule of Criminal Procedure clearly limits the
    power of the court. Carlisle, 517 U.S. at 
    426, 116 S. Ct. at 1466
    .
    Washington argues that the text of 18 U.S.C. § 3582(c) and
    Federal Rule of Criminal Procedure 35(a) are just as clear in
    their intent to limit the district court’s power as Rule 29(c) was
    in Carlisle. Section 3582(c) provides for very specific and
    limited circumstances under which a court may modify a
    sentence after it has been imposed.11 The court below looked to
    11
    The court may not modify a term of imprisonment once
    it has been imposed except that--
    (1) in any case--
    (A) the court, upon motion of the Director of the
    Bureau of Prisons, may reduce the term of
    imprisonment (and may impose a term of probation or
    supervised release with or without conditions that does
    not exceed the unserved portion of the original term of
    imprisonment), after considering the factors set forth
    in section 3553(a) to the extent that they are applicable,
    if it finds that--
    (i) extraordinary and compelling reasons warrant
    such a reduction; or
    (ii) the defendant is at least 70 years of age, has
    served at least 30 years in prison, pursuant to a
    16
    the text and legislative history of the statute and concluded that
    its proscriptions were inapplicable in the present case. The
    Senate Report explains that one of the general purposes of the
    section is to “describe[] the circumstances under which the term
    of imprisonment may be modified.” S. Rep. No. 98-225, at 116
    (1983) as reprinted in 1984 U.S.C.C.A.N. 3182, 3299.
    Specifically, “[s]ubsection (c) provides that a court may not
    modify a sentence except as described in the subsection. The
    subsection provides ‘safety valves’ for modification of sentences
    in three situations.” 
    Id. at 121,
    as reprinted in 1984
    U.S.C.C.A.N. 3182, 3304. The district court concluded that
    these “safety valves” merely apply to reduction to a term of
    imprisonment, and do not address the powers of the court when
    sentence imposed under section 3559(c), for the
    offense or offenses for which the defendant is
    currently imprisoned, and a determination has been
    made by the Director of the Bureau of Prisons that
    the defendant is not a danger to the safety of any
    other person or the community, as provided under
    section 3142(g);
    and that such a reduction is consistent with applicable
    policy statements issued by the Sentencing
    Commission; and
    (B) the court may modify an imposed term of
    imprisonment to the extent otherwise expressly
    permitted by statute or by Rule 35 of the Federal Rules
    of Criminal Procedure; and
    (2) in the case of a defendant who has been sentenced
    to a term of imprisonment based on a sentencing range
    that has subsequently been lowered by the Sentencing
    Commission pursuant to 28 U.S.C. 994(o), upon motion
    of the defendant or the Director of the Bureau of Prisons,
    or on its own motion, the court may reduce the term of
    imprisonment, after considering the factors set forth in
    section 3553(a) to the extent that they are applicable, if
    such a reduction is consistent with applicable policy
    statements issued by the Sentencing Commission.
    18 U.S.C. § 3582(c).
    17
    vacating a sentence for fraudulent conduct during the sentencing.
    Gregg, 
    2006 WL 2850564
    , at *3 n.2. However, the district
    court’s reading is contrary to both the clear language of the
    statute and its legislative history.12 Section 3582(c) states in no
    uncertain terms that “[t]he court may not modify a term of
    imprisonment once it has been imposed except” in the specific
    situations provided by that section. 18 U.S.C. § 3582(c).
    The plain language of Federal Rule of Criminal
    Procedure 35(a) is equally clear in its limitation of a court’s
    jurisdiction to modify its own sentences.13 In Bowles v. Russell,
    ___ U.S. ___, 
    127 S. Ct. 2360
    , 2366, 
    168 L. Ed. 2d 96
    (2007), the
    Supreme Court held that statutory time limits are jurisdictional,
    and courts may not make equitable exceptions to them.
    Following Bowles, we held in United States v. Higgs, 
    504 F.3d 456
    (3d Cir. 2007), that the 7-day time limit of Rule 35(a) is
    jurisdictional. We looked at the history of Rule 35, including the
    language of the Rule before the significant 1987 and 1991
    amendments. 
    Id. at 459-64.
    We noted that prior to 1987, the
    Rule allowed a district court to correct an “illegal” sentence at
    any time. 
    Id. at 460.
    However, after the 1991 amendments, “the
    authority to correct a sentence under [current subdivision (a)]
    was intended to be very narrow and extend only to those cases in
    which an obvious error or mistake has occurred in the
    sentence.” 14 
    Id. at 462
    (quoting Fed. R. Crim. P. 35 advisory
    12
    The district court seemingly overlooked the sentence
    preceding the “safety valve” language: “a court may not modify a
    sentence except as described in the subsection.” S. Rep. No. 98-
    225, at 121, as reprinted in 1984 U.S.C.C.A.N. 3182, 3304
    (emphasis added).
    13
    “Correcting Clear Error: Within 7 days after sentencing,
    the court may correct a sentence that resulted from arithmetical,
    technical, or other clear error.” Fed. R. Crim. P. 35(a).
    14
    Prior to the 2002 amendments, current subdivision 35(a)
    was subdivision 35(c).
    18
    committee’s note) (internal brackets omitted).15 We concurred
    with our sister circuit in holding that § 3582(c) sets forth “a
    statutory basis for limiting the district courts’ jurisdiction” and
    therefore that Rule 35(a) 7-day limit is jurisdictional. 
    Id. at 464.
    Because the government moved to vacate the sentence
    well beyond the 7-day period provided for in Rule 35, the district
    court lacked jurisdiction to hear the motion or vacate the
    sentence. The district court concluded that Washington’s fraud
    was not “error” as covered by Rule 35, and therefore the Rule’s
    time restriction was inapplicable and did not abridge any
    inherent power to remedy fraud on the court. Gregg, 
    2006 WL 2850564
    , at *3. However, this conclusion is contrary to the
    weight of authority from other circuits and the Advisory
    Committee’s notes stating that § 3582(c) and Rule 35 are
    intended to define the full scope of the district court’s power to
    15
    The Advisory Committee’s Notes explain that:
    The Committee considered, but rejected, a proposal from
    the Federal Courts Study Committee to permit modification
    of a sentence, within 120 days of sentencing, based upon
    new factual information not known to the defendant at the
    time of sentencing. Unlike the proposed subdivision (c)
    which addresses obvious technical mistakes, the ability of
    the defendant (and perhaps the government) to come
    forward with new evidence would be a significant step
    toward returning Rule 35 to its former state. The Committee
    believed that such a change would inject into Rule 35 a
    degree of post-sentencing discretion which would raise
    doubts about the finality of determinate sentencing that
    Congress attempted to resolve by eliminating former Rule
    35(a). It would also tend to confuse the jurisdiction of the
    courts of appeals in those cases in which a timely appeal is
    taken with respect to the sentence. Finally, the Committee
    was not persuaded by the available evidence that a problem
    of sufficient magnitude existed at this time which would
    warrant such an amendment.
    Fed. R. Crim. P. 35 advisory committee’s note (emphasis added).
    19
    correct a sentence.16 We also reject the argument that were we
    to hold that district courts lack the inherent power or jurisdiction
    to vacate sentences in a situation like this one, then the court
    would be without a remedy. One who makes false statements to
    the court is still subject to the independent penalties for those
    false statements, as this case demonstrates by Washington’s
    subsequent indictment.
    While we are dubious that federal courts ever had the
    inherent power to vacate criminal sentences that were procured
    by fraud, “[w]hatever the scope of this ‘inherent power,’ . . . it
    does not include the power to develop rules that circumvent or
    conflict with the Federal Rules of Criminal Procedure.”
    Carlisle, 517 U.S. at 
    426, 116 S. Ct. at 1466
    . Accordingly, we
    hold that to the extent there might have at one point been
    inherent power in the court, such power was abrogated by
    Congress pursuant to § 3582(c) and Federal Rule of Criminal
    Procedure 35(a).
    16
    See United States v. Lopez, 
    26 F.3d 512
    , 515, 520 (5th
    Cir. 1994) (holding that a district court only has authority to modify
    a sentence as provided by § 3582(c) and when a resentencing takes
    place outside the 7-day window “the district court lacked
    jurisdiction to act pursuant to Rule 35(c)”); United States v. Fahm,
    
    13 F.3d 447
    , 453 (1st Cir. 1994) (“Upon careful consideration of
    [Rule 35], the advisory committee’s note, and relevant case law, we
    conclude that the court had no inherent power to increase its
    original sentence.”); United States v. Ross, 
    9 F.3d 1182
    , 1188 (7th
    Cir. 1993) (“This new version of [Rule 35] adapts the earlier
    scheme to the demands of the sentencing guidelines structure while
    preserving, albeit on a very constricted scale, the former authority
    of the district court, grounded in rule and, at least prior to the rules,
    inherent power, to correct errors in sentences.”) (citing Fed. R.
    Crim. P. 35(c) advisory committee’s note); United States v. Fraley,
    
    988 F.2d 4
    , 7 (4th Cir. 1993) (“Thus, the addition of subsection (c)
    to Rule 35 demonstrates that district courts are to have only limited
    authority to correct sentences . . . and Rule 35(c) fully defines the
    scope of that authority.”).
    20
    C.
    Because the district court’s order vacating Washington’s
    sentence and directing resentencing was issued without authority
    or jurisdiction we must consider whether the issuance of a writ
    of mandamus is appropriate. “Traditionally, federal courts have
    used their power to issue writs only ‘to confine an inferior court
    to a lawful exercise of its prescribed jurisdiction or to compel it
    to exercise its authority when it is its duty to do so.’” United
    States v. Santtini, 
    963 F.2d 585
    , 594 (3d Cir. 1992) (quoting
    Roche v. Evaporated Milk Ass’n, 
    319 U.S. 21
    , 26, 
    63 S. Ct. 938
    ,
    941, 
    87 L. Ed. 1185
    (1943)). “[I]f there has been a judicial
    ‘usurpation of power’ the invocation of this extraordinary
    remedy will be warranted.” 
    Id. (citing Will
    v. United States, 
    389 U.S. 90
    , 95, 
    88 S. Ct. 269
    , 273, 
    19 L. Ed. 2d 305
    (1967)). It is
    precisely in cases such as this, where a district court clearly acts
    in excess of its statutory authority that the issuance of a writ of
    mandamus is appropriate.
    “The standard for issuing a writ of mandamus is
    stringent.” 
    Wexler, 31 F.3d at 128
    . As a preliminary matter,
    Washington must show that the district court committed a “clear
    error of law.” 
    Id. (citing In
    re Bankers Trust Co., 
    775 F.2d 545
    ,
    547 (3d Cir. 1985)). As discussed above, the district court
    committed a clear error of law vacating an already imposed
    sentence in clear contradiction of its statutorily limited authority.
    Washington must also show that the error will “cause
    irreparable injury” and that there is “no means of adequate
    relief” other than a writ of mandamus. 
    Id. (citing Cippolone
    v.
    Liggett Group, Inc., 
    785 F.2d 1108
    , 1118 (3rd Cir. 1986) and
    Bankers 
    Trust, 775 F.2d at 547
    ). The error in this case, namely
    vacating a sentence absent authority to do so, will cause
    irreparable injury because it would result in Washington being
    subjected to a new sentencing hearing, and potentially more time
    in prison, after his term of incarceration has been served.17
    17
    His right to appeal the resentencing would not cure the
    potential for excess prison time, since there in no certainty that his
    21
    Washington has no “adequate means of relief” other than
    mandamus to remedy the error of law prior to being resentenced.
    Because Washington’s appeal of the order on Double
    Jeopardy grounds (No. 07-1884) is brought under the Collateral
    Order Doctrine, that appeal is limited only to the Double
    Jeopardy issue. See 
    Abney, 431 U.S. at 662-63
    , 97 S.Ct. at 2041-
    42 (discussing the narrow scope of issues available for review
    under the Collateral Order Doctrine). As such, considering the
    resentencing issue under a writ of mandamus allows for the
    consolidation of all of Washington’s claims into one case before
    us, as opposed to forcing a piecemeal resolution, as a writ of
    mandamus might do in other circumstances. Cf. 
    Wexler, 31 F.3d at 128
    (noting that “‘[m]andamus is disfavored because its broad
    use would threaten the policy against piecemeal appeals”)
    (quoting In Re School Asbestos Litigation, 
    977 F.2d 764
    , 772
    (3rd Cir. 1992)). Allowing this Court to decide all the issues
    contained in these appeals altogether, rather than in a piecemeal
    fashion, is clearly in the interests of judicial economy, and
    therefore the use of mandamus is favored.18
    IV.
    Washington alleges that the sentence imposed by the
    district court (Dalzell, J.) in his false claims case was both
    procedurally and substantively unreasonable since he received
    the statutory maximum of five years imprisonment, while the
    applicable Guidelines range was only four to ten months.
    A.
    new sentence would be stayed pending appeal. See 18 U.S.C. §
    3143(b).
    18
    Because we are issuing a writ of mandamus vacating the
    district court’s March 20, 2007 Order, we need not address whether
    Washington’s Double Jeopardy rights would be violated by
    subjecting him to resentencing, as no such resentencing will take
    place. Accordingly, appeal No. 07-1884 is dismissed as moot.
    22
    Our review of criminal sentences involves a two step
    analysis.
    We must first ensure that the district court committed no
    significant procedural error in arriving at its decision,
    “such as failing to calculate (or improperly calculating)
    the Guidelines range, treating the Guidelines as
    mandatory, failing to consider the § 3553(a) factors,
    selecting a sentence based on clearly erroneous facts, or
    failing to adequately explain the chosen sentence--
    including an explanation for any deviation from the
    Guidelines range.”
    
    Wise, 515 F.3d at 217
    (quoting Gall v. United States, ___ U.S.
    ___, 
    128 S. Ct. 586
    , 597, 
    169 L. Ed. 2d 445
    (2007)). While the
    district court’s sentence is reviewed under an abuse of discretion
    standard, the level of deference given will depend on the type of
    procedural error asserted. 
    Id. “Thus, if
    the asserted procedural
    error is purely factual, our review is highly deferential, and we
    will conclude there has been an abuse of discretion only if the
    district court’s findings are clearly erroneous.” 
    Id. However,“we do
    not defer to a district court when the asserted
    procedural error is purely legal, as, for example, when a party
    claims that the district court misinterpreted the Guidelines.” 
    Id. If there
    is no procedural error, then we review the
    sentence merely for “substantive reasonableness,” determined
    under the abuse of discretion standard. 
    Id. “We may
    consider
    the extent of a court’s deviation from the Guidelines range, but
    we ‘must give due deference to the district court’s decision that
    the § 3553(a) factors, on a whole, justify the extent of the
    variance.’” 
    Id. (quoting Gall,
    128 S.Ct. at 597). However, “we
    may not reverse the district court simply because we would have
    imposed a different sentence.” 
    Id. B. 1.
         In determining Washington’s sentence, the district court
    committed legal error in finding that the filings with the Court of
    23
    Appeals and the Supreme Court using the name “Kennard
    Gregg” were violations of 18 U.S.C. § 1001. Section 1001
    specifically excepts “a party to a judicial proceeding, or that
    party’s counsel, for statements, representations, writings or
    documents submitted by such party or counsel to a judge or
    magistrate in that proceeding.” 18 U.S.C. § 1001(b).
    The district court spent a considerable portion of the
    sentencing hearing focusing on the number of federal judges
    who had been deceived. It also stated its belief that each
    misrepresentation to each individual judge could, in and of itself,
    be a violation of § 1001. Judge Dalzell read into the record the
    names of all the members of the Third Circuit Court of Appeals
    who heard the appeal en banc, and the names of the justices of
    the Supreme Court, totaling 22 federal judges.19 The
    government contends that the district court’s recitation of the
    number of judges was merely a matter of rhetoric to emphasize
    the severity of the nature and circumstances of Washington’s
    deception. We disagree.
    The court properly focused on the need for deterrence and
    expressed the view that a four month sentence was inadequate to
    accomplish that objective. In fact, the court remarked that, given
    the severity of the offense and the surrounding circumstances, a
    sentence in the Guidelines range would be “a joke.” It also
    noted Washington’s extensive criminal history, and his
    propensity to violate parole and/or probation. However, the
    court stated that “as a finding, I cannot imagine a more serious
    violation of the statute, in that a total of 22 federal judges were
    actively misled into thinking this defendant was someone other
    than the person he was impersonating.” Given its finding that
    each of the filings with the Court of Appeals and the Supreme
    Court were violations of § 1001 notwithstanding the clear
    language of the statute excepting “statements, representations,
    19
    We note that Judge Dalzell also referred to the
    misstatements before the Magistrate Judge and Judge Padova but
    apparently did not include them in his list of 22 federal judges who
    had been misled by Washington.
    24
    writings or documents” submitted to the judge, the district court
    relied on a clearly erroneous legal conclusion in forming the
    basis for its sentence.20 18 U.S.C. § 1001(b).
    2.
    Additionally, the court overstated exactly how much
    benefit Washington received from his misrepresentations.
    Relying on the PSR in the case before him, Judge Dalzell
    concluded that Washington had been sentenced before Judge
    Padova under criminal history two as opposed to five. However,
    Washington would have only been a category four prior to
    actually being sentenced for the counterfeiting. An offense level
    of nine and a criminal history of two would result in a Guidelines
    range of six to twelve months, as reflected by the six month
    sentence Washington received in the counterfeit currency case.
    An offense level of nine and a criminal history of four would
    result in a Guidelines range of twelve to eighteen months, which
    would have been his range had his true criminal history been
    used. An offense level of nine and a criminal history of five
    would result in a Guidelines range of eighteen to twenty-four
    months. In actuality, Washington received a benefit of six
    months on either end of the Guidelines range as a result of his
    misrepresentations. However, by Judge Dalzell’s assessment,
    20
    Washington’s affidavit opposing the government’s motion
    to vacate his sentence stated: “While the defendant does not
    concede any of the allegations of the government, none of the facts
    they allege are relevant to the disposition of this motion.” During
    sentencing, Judge Dalzell erroneously concluded that this affidavit
    also violated § 1001. Washington argues that Judge Dalzell drew
    a negative inference from his refusal to admit the allegations
    against him, violating his Fifth Amendment right against self-
    incrimination. See Mitchell v. United States, 
    526 U.S. 314
    , 330,
    
    119 S. Ct. 1307
    , 1315-16, 
    143 L. Ed. 2d 424
    (1999) (court holding
    a defendant’s silence against him during sentencing proceedings
    impermissibly burdens his constitutional right against compelled
    self-incrimination). In light of our disposition we need not reach
    the merits of this argument.
    25
    Washington received a benefit of one year on either end of the
    Guidelines range. The court noted that “the defendant hugely
    benefitted at his sentencing.” It is certainly reasonable to assume
    that Judge Dalzell’s mistaken calculation of the benefit
    Washington received from his deceit before Judge Padova may
    have influenced the sentence he imposed.
    3.
    Washington also contends that the district court
    incorrectly calculated the applicable Guidelines range by
    including the counterfeiting conviction as a “prior sentence.” In
    the PSR, and therefore Judge Dalzell’s findings, the counterfeit
    currency case before Judge Padova was included as a “prior
    sentence” corresponding to an additional two points, and thus a
    criminal history category of five, as opposed to four if that
    sentence were not included. See United States v. Irvin, 
    369 F.3d 284
    , 292 (3d Cir. 2004) (“[W]e will generally exercise our
    discretion to recognize a plain error in the (mis)application of the
    Sentencing Guidelines.”).
    Section 4A1.2(a)(1) of the Sentencing Guidelines
    provides that “[t]he term ‘prior sentence’ means any sentence
    previously imposed . . . for conduct not part of the instant
    offense.” U.S. Sentencing Guidelines Manual § 4A1.2(a)(1).
    Application Note 1 states in pertinent part: “Conduct that is part
    of the instant offense means conduct that is relevant conduct to
    the instant offense under the provisions of § 1B1.3 (Relevant
    Conduct).” 
    Id. at Application
    Note 1. Section 1B1.3 defines
    relevant conduct as “all acts and omissions committed . . . by the
    defendant; and that occurred during the commission of the
    offense of conviction, . . . or in the course of attempting to avoid
    detection or responsibility for that offense.” 
    Id. at §
    1B1.3(a)(1)(A).
    The offense of conviction before Judge Dalzell was the
    violation of § 1001. Counterfeiting was not “relevant conduct”
    for that offense. The actions taken in the commission of the
    counterfeiting did not occur “during the commission” of the
    false statements, or in an “attempt[] to avoid detection or
    26
    responsibility” for the false statements. 
    Id. A defendant’s
    subsequent acts may result in additional criminal charges, as
    Washington’s did, but that does not render the original offense
    relevant conduct for the later charges. Simply because a
    defendant tries to frustrate the judicial process does not make the
    crime for which he was originally indicted relevant conduct for
    future prosecutions. The fact that Washington would not have
    needed to lie if he had not been arrested for counterfeiting does
    not make the counterfeiting relevant conduct for the lying.
    Washington attempts to analogize to Irvin, where we held
    that the district court had committed plain error by considering
    the defendant’s state court manslaughter conviction in
    sentencing him for possession of a firearm by a convicted 
    felon. 369 F.3d at 292
    . In determining that the manslaughter was
    “relevant conduct” to the possession charge, we noted that “Irvin
    could not have exercised criminally negligent control over his
    Smith & Wesson pistol on June 9, 1998 unless he was in
    possession of it on the same date.” 
    Id. at 290.
    In Irvin, the act
    of possession and manslaughter were inextricably linked as the
    possession facilitated the manslaughter. “[T]he offense
    committed by Irvin, as charged in both the state and federal
    indictments, centered on the passive act of possessing a firearm
    on June 9, 1998.” 
    Id. at 292.
    The two were temporally and
    operationally connected. However, no similar connection exists
    where Washington made false statements to the government
    after the commission of the counterfeiting had been completed.
    As such, including the counterfeit currency sentence in the PSR
    and Guidelines calculation was not erroneous.21
    IV.
    Accordingly, for the reasons set forth above, we will issue
    a writ of mandamus instructing the district court (Padova, J.) to
    vacate its order of March 20, 2007, which vacated the original
    21
    Because we have found procedural error in Judge
    Dalzell’s sentence and are remanding for resentencing, we need not
    evaluate the substantive reasonableness of the sentence.
    27
    sentence in the counterfeiting case. Additionally, we reverse the
    district court’s (Dalzell, J.) sentence in the false statements case
    and remand for resentencing consistent with this opinion. The
    appeal on Double Jeopardy grounds, No. 07-1884, is dismissed
    as moot.
    28