United States v. DiFrancesco ( 1980 )

Justice Brennan,

with whom Justice White, Justice Marshall, and Justice Stevens join, dissenting.

Title 18 U. S. C. § 3576¹ authorizes the United States to appeal² from a sentence imposed by a federal district judge on the ground that the sentence is too lenient and further permits the appellate court to increase the severity of the initial sentence. The Court holds that § 3576 violates neither the prohibition against multiple punishments nor the prohibition against multiple trials embodied in the Double Jeopardy Clause of the Fifth Amendment.³ Because the Court fundamentally misperceives the appropriate degree of finality to be accorded the imposition of sentence by the trial judge, it reaches the erroneous conclusion that enhancement of a sentence pursuant to § 3576 is not an unconstitutional multiple punishment. I respectfully dissent.

I

The Court acknowledges, as it must, that the Double Jeopardy Clause has two principal purposes: to “protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense,” Green v. United States, 355 U. S. 184, 187 (1957), and to prevent imposition of multiple punishments for the same offense, North Carolina v. Pearce, 395 U. S. 711, 717 (1969). An overriding function of the Double Jeopardy Clause’s prohibition against multiple trials is to protect against multiple punishments: “It is the punishment that would legally follow the second conviction which is the real danger guarded against by the Constitution.” Ex parte Lange, 18 Wall. 163, 173 (1874).

An unconstitutional punishment need not derive exclusively from a second prosecution, but may stem from the imposition of more than one sentence following a single prosecution. Ex parte Lange, supra, and In re Bradley, 318 U. S. 50 (1943), provide examples of unconstitutional multiple punishments flowing from a single trial — imprisonment and fine for an offense punishable by either imprisonment or fine — but neither case purports to exhaust the reach of the Double Jeopardy Clause’s prohibition against multiple punishments. Indeed, this Court has consistently assumed that an increase in the severity of a sentence subsequent to its imposition — the issue presented in this case — also constitutes multiple punishment in violation of the Double Jeopardy Clause.⁴ For example, in United States v. Benz, 282 U. S. 304, 307 (1931), the Court stated that “[t]he distinction that the court during the same term may amend a sentence so as to mitigate the punishment, but not so as to increase it [is based] upon the ground that to increase the penalty is to subject the defendant to double punishment for the same offense . ⁵ Similarly, in Reid v. Covert, 354 U. S. 1, 37-38, n. 68 (1957), the Court stated: “In Swaim v. United States, 165 U. S. 553, this Court held that the President or commanding officer had power to return a case to a court-martial for an increase in sentence. If the double jeopardy provisions of the Fifth Amendment were applicable such a practice would be unconstitutional.” Although the Benz and Reid statements may be dicta, nevertheless, the Court of Appeals correctly stated that “[a]l-though such dicta ... are not legally binding, their number and the high authority of their sources offer impressive evidence of the strength and prevalence of the view that the double jeopardy clause bars an increase in the sentence imposed by the district court.” 604 F. 2d 769, 785 (CA2 1979). My Brother Rehnquist only recently noted that “the Double Jeopardy Clause as interpreted in Ex parte Lange prevents a sentencing court from increasing a defendant’s sentence for any particular statutory offense, even though the second sentence is within the limits set by the legislature.” Whalen v. United States, 445 U. S. 684, 703 (1980) (dissenting opinion).

II

Not only has the Court repeatedly said that sentences may not be increased after imposition without violating the double jeopardy prohibition against multiple punishments, but the analytic similarity of a verdict of acquittal and the imposition of sentence requires this conclusion. A verdict of acquittal represents the factfinder’s conclusion that the evidence does not warrant a finding of guilty. United States v. Martin Linen Supply Co., 430 U. S. 564, 572 (1977). Similarly, a guilty verdict of second-degree murder where the charge to the jury permitted it to find the defendant guilty of first-degree murder represents the factfinder’s implicit finding that the facts do not warrant a first-degree murder conviction. Thus, a retrial on first-degree murder is constitutionally impermissible. Green v. United States, supra; see Price v. Georgia, 398 U. S. 323 (1970). The sentencing of a convicted criminal is sufficiently analogous to a determination of guilt or innocence that the Double Jeopardy Clause should preclude government appeals from sentencing decisions very much as it prevents appeals from judgments of acquittal. The sentencing proceeding involves the examination and evaluation of facts about the defendant, which may entail the taking of evidence, and the pronouncement of a sentence. Thus, imposition of a 10-year sentence where a 25-year sentence is permissible under the sentencing statute constitutes a finding that the facts justify only a 10-year sentence and that a higher sentence is unwarranted. In both acquittals and sentences, the trier of fact makes a factual adjudication that removes from the defendant’s burden of risk the charges of which he was acquitted and the potential sentence which he did not receive. Unless there is a basis for according greater finality⁶ to acquittals, whether explicit or implicit, than to sentences, the Court’s result is untenable.⁷

The Court proffers several reasons why acquittals and sentences should be treated differently. None of them is persuasive. First, the Court suggests that common-law historical evidence supports its distinction between the finality accorded to verdicts and to sentences. Ante, at 133-134. The Court’s observation that the “common-law writs of autre jois acquit and autre jois convict were protections against retrial,” ante, at 133, is true, but that fact does not dispose of the additional purpose of the Double Jeopardy Clause to prevent multiple punishments of the sort authorized by § 3576. Moreover, the practice of increasing a sentence “so long as it took place during the same term of court,” ante, at 133-134, or “so long as [the defendant] has not yet begun to serve that sentence,” ante, at 134, has never been sanctioned by this Court.

Second, the Court posits that the Government’s right to appeal a final sentence imposed by a trial judge “is different in no critical respect,” ante, at 137, from parole and probation revocation, an extraordinary statement that overlooks obvious differences between the proceedings. A defendant knows after sentencing the maximum length of time he may serve, a maximum which can only be shortened by parole or probation. On the other hand, since parole and probation by definition are conditional, a defendant is on notice from the outset that a breach of those conditions may result in revocation of beneficial treatment. At the very worst from the defendant’s point of view, the original sentence may be reinstated. Furthermore, revocation of parole or probation only results from a change in circumstance subsequent to the grant of parole or probation. Here the Government’s appeal of sentence is not predicated on a defendant’s activity since imposition of the original sentence, and the Government would be unlikely to present evidence of such activity.

Third, the Court argues that Congress could have provided that dangerous special offenders be sentenced to a specified mandatory term that could then be reduced on appeal by the court of appeals. Ante, at 142. The Court thus concludes that striking down § 3576 would elevate “form over substance” since Congress could have obtained the same result sought by § 3576 “by a slightly different statute whose constitutionality would be unquestionable.” Ante, at 142. This is a strange conclusion, for we must review statutes as they are written, not as they might have been- written. In any event, the Court’s hypothetical legislation is not “slightly different,” but substantially different from § 3576: it would create a wholly unprecedented change in the relationship between trial and appellate courts. As long as Congress retains the present court structure in which the sentences of trial courts are final judgments, the “form” as well as the “substance” of the law militate against Government appeals in this situation.

Fourth, and apparently central to the Court’s refusal to accord finality to sentences is its faulty characterization of the sentencing phase of a criminal prosecution. Although the Court acknowledges that the double jeopardy guarantee is at least in part directed at protecting the individual from government oppression and undue embarrassment, expense, anxiety, and insecurity, Green v. United States, 355 U. S., at 187,⁸ it reaches the startling conclusion that “[t]his limited appeal,” ante, at 136, exposes the defendant to minimal incremental embarrassment and anxiety because “the determination of innocence or guilt... is already behind him.” Ibid. I believe that the Court fundamentally misunderstands the import to the defendant of the sentencing proceeding.

I suggest that most defendants are more concerned with how much time they must spend in prison than with whether their record shows a conviction. This is not to say that the ordeal of trial is not important. And obviously it is the conviction itself which is the predicate for time in prison. But clearly, the defendant does not breathe a sigh of relief once he has been found guilty. Indeed, an overwhelming number of criminal defendants are willing to enter plea bargains in order to keep their time in prison as brief as possible.⁹ Surely, the Court cannot believe then that the sentencing phase is merely incidental and that defendants do not suffer acute anxiety. To the convicted defendant, the sentencing phase is certainly as critical as the guilt-innocence phase. To pretend otherwise as a reason for holding 18 U. S. C. § 3576 valid is to ignore reality.

The Court’s contrary view rests on the circular notion that the défendant “has no expectation of finality in his sentence until the [Government] appeal [pursuant to § 3576] is concluded or the time to appeal has expired.” Ante, at 136. That is, the very statute which increases and prolongs the defendant’s anxiety alleviates it by conditioning his expectations. Logically extended, the Court’s reasoning could lead to the conclusion that the Double Jeopardy Clause permits Government appeals from verdicts of acquittal.¹⁰ If the purpose of insulating the verdict of acquittal from further proceedings is, at least in part,¹¹ out of concern that defendants not be subjected to Government oppression, the Congress could dispose of this objection by a statute authorizing the Government to appeal from verdicts of acquittal. Under the Court’s view, such a statute would “charge” the defendant “with knowledge” of its provisions and thus eradicate any expectation of finality in his acquittal.

Finally, the Court attempts to differentiate the finality of acquittals from the finality of sentences through reliance on North Carolina v. Pearce, 395 U. S. 711 (1969), and Swisher v. Brady, 438 U. S. 204 (1978). Neither decision supports the Court’s result. In Pearce, the Court allowed the imposition of a longer sentence upon retrial following appellate reversal of the defendant’s conviction. Our holding rested “ultimately upon the premise that the original conviction has, at the defendant’s behest, been wholly nullified and the slate wiped clean.” 395 U. S., at 721. But Pearce allowed imposition of a longer sentence because sentencing followed a retrial rather than an appeal.¹² It is the fact of the retrial itself that gives the trial court power to impose a new sentence up to the statutory maximum. As Pearce observed, there is a difference between “increases in existing sentences” and “the imposition of wholly new sentences after wholly new trials.” Id., at 722. Since the Government does not argue that it is entitled to a new trial, Pearce provides no support for enhancement of an already existing sentence on appeal.

The Court’s reliance on Swisher v. Brady, supra, is similarly misplaced. There, the Court upheld a Maryland rule allowing juvenile court judges to set aside proposed findings and recommendations of masters and to hold de novo proceedings that could ultimately lead to a harsher result for the juveniles. But Swisher is critically different from this case because the master under Maryland law had no authority to adjudicate facts or to impose a sentence, but could merely transmit the results of his investigation to the trial judge for the latter’s review.¹³ Here, by contrast, the federal district judge had full power to conduct a trial to a conclusion of guilt or innocence and then to impose a final sentence upon the defendant if convicted. Merely because § 3576 provides the Government with appellate rights does not convert the judge’s imposition of sentence into a mere recommendation.

Ill

Because the Court has demonstrated no basis for differentiating between the finality of acquittals and the finality of sentences, I submit that a punishment enhanced by an appellate court is an unconstitutional multiple punishment.¹⁴ To conclude otherwise, as the Court does, is to create an exception to basic double jeopardy protection which, if carried to its logical conclusion,¹⁵ might not prevent Congress, on double jeopardy grounds, from authorizing the Government to appeal verdicts of acquittal. Such a result is plainly impermissible under the Double Jeopardy Clause.

I, therefore, dissent.

1 Section 3576 states in pertinent part:

“[A] review of the sentence on the record of the sentencing court may be taken by the defendant or the United States to a court of appeals. . . . Review of the sentence shall include review of whether the procedure employed was lawful, the findings made were clearly erroneous, or the sentencing court’s discretion was abused. The court of appeals on review of the sentence may, after considering the record, including the entire presen-tence report, information submitted during the trial of such felony and the sentencing hearing, and the findings and reasons of the sentencing court, affirm the sentence, impose or direct the imposition of any sentence which the sentencing court could originally have imposed, or remand for further sentencing proceedings and imposition of sentence, except that a sentence may be made more severe only on review of the sentence taken by the United States and after hearing . . . .”

2 The United States may appeal decisions in a criminal case only if so authorized by statute. United States v. Scott, 437 U. S. 82, 84-85 (1978) ; United States v. Sanges, 144 U. S. 310 (1892).

3 “[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb . . . .” U. S. Const., Arndt. 5.

4 Under my view of the double jeopardy protection against multiple punishments, a sentence may not be increased once a technically correct sentence has been imposed. I would distinguish correction of a technically improper sentence which the Court has always allowed. See, e. g., Bozza v. United States, 330 U. S. 160, 165-167 (1947).

5 The Court dismisses the significance of Benz because it cited Ex parte Lange, 18 Wall. 163 (1874), which did not present the precise issue on which, according to the Court, Benz “gratuitously,” ante, at 138, opined. It is true that Lange raised an issue somewhat different from Benz, but Lange did decide a question of unconstitutional multiple punishment. Benz’ citation of Lange, then, was entirely appropriate.

6 The finality accorded sentences has been recognized in other contexts. Berman v. United States, 302 U. S. 211, 212 (1937) (Sentence is appeal-able by-defendant notwithstanding suspension of execution. “Final judgment in a criminal case means sentence. The sentence is the judgment”); see Corey v. United States, 375 U. S. 169 (1963).

7 The Court suggests that “[t]he law 'attaches particular significance to an acquittal,’ ” ante, at 129, quoting United States v. Scott, 437 U. S., at 91, and that “ 'we necessarily afford absolute finality to a jury’s verdict of acquittal — no matter how erroneous its decision,’ ” ante, at 130, quoting Burks v. United States, 437 U. S. 1,16 (1978) (emphasis in original). See Fong Foo v. United States, 369 U. S. 141, 143 (1962) (directed verdict of acquittal by trial judge in middle of jury trial is entitled to finality and is unreviewable by appeal even though “based upon an egregiously erroneous foundation”). That explains in part the result reached in United States v. Wilson, 420 U. S. 332 (1975), which allowed an appellate court to reinstate a guilty verdict which was nullified by the trial judge’s post-verdict dismissal of the indictment. Wilson involved correction of an error of law and reinstatement of an already existing fact adjudication. However, under § 3576, there is no fact adjudication for the court of appeals to reinstate where the purpose of the appeal is to increase the defendant’s sentence. The appellate court would have to make its own fact determination and judgment as to the defendant’s proper sentence.

8 Another purpose of the Double Jeopardy Clause is to prevent “enhancing the possibility that even though innocent, [a defendant] may be found guilty.” Green v. United States, 355 U. S., at 188. A similar analysis applies with respect to sentencing. Repeated attempts at sentencing are as likely to produce an unjustifiably harsh sentence as repeated trials are likely to result in an unwarranted guilty verdict. In both instances, the Government seeks a second opportunity to present evidence it could have presented in the first instance. Burks v. United States, supra, at 11; see 18 U. S. C. § 3576 (“The court of appeals . . . may . . . remand for further sentencing proceedings and imposition of sentence”).

9 For the 12 months ending June 30, 1979, of 32,913 convictions in the United States District Courts, 27,295 were by guilty plea and by plea of nolo contendere. Annual Report of the Director of the Administrative Office of the United States Courts 286 (1979).

Under the Court’s view, there might be no double jeopardy bar against a Government appeal from the sentence meted out pursuant to a guilty plea. While defendants might bargain with prosecutors over the latter’s appellate rights, that possibility is irrelevant for determining the double jeopardy consequences of an appeal from a sentence imposed pursuant to a plea bargain.

10 The Court, of course, acknowledges that verdicts of acquittal are not appealable.

11 Finality is also accorded to acquittals to protect against retrials leading to erroneous guilty verdicts. See n. 8, supra.

12 The reason for allowing retrials following reversal of convictions rests on a legitimate concern for the “sound administration of justice. Corresponding to the right of an accused to be given a fair trial is the societal interest in punishing one whose guilt is clear after he has obtained such a trial. It would be a high price indeed for society to pay were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction.” United States v. Tateo, 377 U. S. 463, 466 (1964). Appeals of sentences by the Government pursuant to § 3576 do not implicate the considerations identified in Tateo. Section 3576 authorizes appeals of sentences which, in the Government’s view, are simply too low. Indeed, as the court below noted, respondent was sentenced to 10 years’ imprisonment and had already begun serving his sentence. There was no possibility here, therefore, that respondent would be “granted immunity from punishment.” 377 U. S., at 466.

13 Moreover, in Swisher, no evidence could be introduced once the proceeding before the master was terminated, unless the juvenile consented to the introduction of additional evidence. By contrast, § 3576 contemplates additional evidentiary proceedings in connection with appellate review of sentences. See nn. 1 and 8, supra.

14 Similarly, subsequent fact adjudication by the court of appeals or by the district court on remand to it for an evidentiary hearing pursuant to 18 U. S. C. § 3576 is akin to an unconstitutional second trial following a verdict of acquittal.

15 Under the Court’s view, there is no double jeopardy bar to imposition of additional punishment by an appellate court after the defendant has completed service of the sentence imposed by the trial court, although such an outcome is not contemplated by § 3576 as presently drafted and would presumably violate due process in any event.