Wilmer v. Johnson

Opinions of the United
1994 Decisions States Court of Appeals
for the Third Circuit
7-22-1994
Wilmer v. Johnson
Precedential or Non-Precedential:
Docket 93-1283
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________________
No. 93-1283
__________________
JOSEPH WILMER, UNITED STATES OF AMERICA,
EX. REL.,
Appellant
v.
NATHANIEL JOHNSON, DIRECTOR, PRETRIAL
SERVICES DIVISION OF PHILADELPHIA COURT
OF COMMON PLEAS; THE DISTRICT ATTORNEY
FOR PHILADELPHIA COUNTY; THE ATTORNEY
GENERAL OF THE STATE OF PENNSYLVANIA
____________________________________________________
On Appeal From the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 92-06899)
____________________________________________________
Submitted Under Third Circuit LAR 34.1(a)
April 20, 1994
Before: BECKER, NYGAARD and WEIS, Circuit Judges.
(Filed July 22, l994 )
PETER ROSALSKY
Defender Association of
Philadelphia
121 North Broad Street
Philadelphia, PA 19107
Attorney for Appellant
DEBORAH FLEISHER
Assistant District Attorney
1
DONNA G. ZUCKER
Chief, Federal Litigation
2
RONALD EISENBERG
Deputy District Attorney
Law Division
ARNOLD H. GORDON
Chief Deputy District Attorney
LYNNE ABRAHAM
District Attorney
1421 Arch Street
Philadelphia, PA 19102-1582
Attorneys for Appellees
___________________________
OPINION OF THE COURT
___________________________
BECKER, Circuit Judge.
This appeal from an order of the district court
dismissing a petition for writ of habeas corpus presents the
question whether the Double Jeopardy Clause of the Fifth
Amendment to the United States Constitution, as applied through
the Fourteenth Amendment, prohibits an enhanced sentence in a
state resentencing proceeding brought pursuant to Pennsylvania's
Drug Trafficking Mandatory Minimum Sentencing Statute, 18
Pa.Cons.Stat.Ann. § 7508 (1990), after the initial sentence was
reversed on appeal. Resolution of this issue requires us to
decide which of two arguably controlling Supreme Court decisions
determines the outcome. In Bullington v. Missouri, 451 U.S. 430,
101 S.Ct. 1852 (1981), the Supreme Court held that the Double
Jeopardy Clause precluded the state from seeking the death
penalty at a second capital sentencing proceeding after the
defendant's first jury declined to impose such a penalty. In
3
contrast, in United States v. DiFrancesco, 449 U.S. 117, 101
S.Ct. 426 (1980), the Court found no violation of the Double
Jeopardy Clause resulting from a sentence enhancement under
former 18 U.S.C. § 3576 following appellate review in a
noncapital case. We conclude that DiFrancesco is controlling and
hold that the Double Jeopardy Clause does not bar the
Pennsylvania proceeding at issue. We therefore affirm the order
of the district court dismissing the habeas corpus petition.
I.
Petitioner, Joseph Wilmer, was convicted following a
bench trial in the Court of Common Pleas of Philadelphia County
of possessing crack cocaine with intent to deliver. Wilmer had
been found with 61 clear plastic vials with orange caps
containing an off-white substance. Two of the vials were
analyzed by the Commonwealth's chemist and found to contain
cocaine, 37 and 43 milligrams respectively.0 The Commonwealth
timely notified Wilmer of its intent to proceed under the
mandatory sentencing provisions of 18 Pa.Cons.Stat.Ann. § 7508,
Pennsylvania's Drug Trafficking Mandatory Minimum Sentencing
Statute.0
0
The specific amount of cocaine found in the two tested vials was
brought out at the trial rather than at the sentencing hearing.
0
Before the 1990 amendments, Section 7508 provided in relevant
part, as follows:
(a) General rule. -- Notwithstanding any other
provisions of this or any other act to the contrary,
the following provisions shall apply:
* * *
4
At a sentencing hearing on April 5, 1990, the issue was
whether petitioner was subject to § 7508(a)(3)(i), which provided
for a mandatory minimum sentence of one year and a $5,000 fine
(3) A person who is convicted of violating section
13(a)(14) or (30) of The Controlled Substance, Drug,
Device and Cosmetic Act where the controlled substance
is coca leaves or is any salt, compound, derivative or
preparation of coca leaves . . . shall, upon
conviction, be sentenced to a mandatory minimum term of
imprisonment and a fine as set forth in this
subsection:
(i) upon the first conviction when the amount of
the substance involved is at least 2.0 grams and less
than ten grams; one year in prison and a fine of $5,000
or such larger amount as is sufficient to exhaust the
assets utilized in and the proceeds from the illegal
activity . . . ;
* * *
(b) Proof of sentencing. -- Provisions of this section
shall not be an element of the crime. Notice of the
applicability of this section to the defendant shall
not be required prior to conviction, but reasonable
notice of the Commonwealth's intention to proceed under
this section shall be provided after conviction and
before sentencing. The applicability of this section
shall be determined at sentencing. The Court shall
consider evidence presented at trial, shall afford the
Commonwealth and the defendant an opportunity to
present necessary additional evidence and shall
determine, by a preponderance of the evidence, if this
section is applicable.
* * *
(d) Appellate review. -- If a sentencing court refuses
to apply this section where applicable, the
Commonwealth shall have the right to appellate review
of the action of the sentencing court. The appellate
court shall vacate the sentence and remand the case to
the sentencing court for imposition of a sentence in
accordance with this section if it finds that the
sentence was imposed in violation of this section.
5
when "the amount of the substance involved is at least 2.0 grams
and less than ten grams."0 The evidence presented at the
sentencing hearing (established through stipulation) showed that
the aggregate weight of the substance when the contents of the
sixty-one vials were mixed was 2.6 grams. The state did not show
what portion of the 2.6 grams was actually cocaine as opposed to
a non-cocaine substance used to dilute the mixture.0
The trial court held that the Commonwealth had not
proved by a preponderance of the evidence that the amount of
cocaine involved was 2.0 grams. Only 2 of 61 vials had been
analyzed, and the amount of cocaine discovered in these two
vials, in the court's view, did not justify an extrapolation to
2.0 grams of cocaine in the 61 vials. The court therefore
refused to apply § 7508(a)(3)(i) and instead sentenced Wilmer to
9 to 18 months confinement to be followed by one year of
probation. The Commonwealth appealed the sentence pursuant to
§7508(d), which authorizes an appeal by the Commonwealth when the
sentencing court fails to apply the mandatory minimum sentence
required by that statute. The Pennsylvania Superior Court
reversed and remanded the case for imposition of the more severe
0
On December 19, 1990, the Pennsylvania Legislature amended this
section to make the mandatory minimum depend not just on the
amount of substance involved but rather the aggregate
weight of the compound or mixture. The amended provision now
reads: "when the aggregate weight of the compound or mixture
containing the substance involved is at least 2.0 grams and less
than ten grams . . . ." 18 Pa.Cons.Stat.Ann. § 7508 (Supp. 1993)
(emphasis added). The amendment has no applicability to this
appeal.
0
The total amount of cocaine in the two analyzed vials had been
shown only to be eighty milligrams.
6
sentence, holding that the sampling of only 2 of 61 vials was
adequate to support the extrapolation. Wilmer's request for
allocatur was denied by the Pennsylvania Supreme Court.
On December 2, 1992, Wilmer filed a petition for a writ
of habeas corpus in the District Court for the Eastern District
of Pennsylvania. The sole claim raised was the alleged
impingement of the constitutional right not to be placed twice in
jeopardy by reason of being subjected to a second sentence
enhancement proceeding under 18 Pa.Cons.Stat.Ann. § 7508.
Respondents0 answered the petition, addressing its merits.0 The
district court dismissed the petition, and this appeal followed.
On June 10, 1993, a motions panel of this court granted
Wilmer's request for a certificate of probable cause to appeal
and appointed counsel. After briefs were filed, the Supreme
Court granted certiorari in Caspari v. Bohlen, 113 S.Ct. 2958(1993), which presented an issue virtually identical to this
appeal. This (merits) panel stayed the appeal pending the
outcome of Caspari v. Bohlen, 114 S.Ct. 948 (1994). We then
requested and received supplemental briefing on Caspari's impact
on the case.0
II.
0
Respondents are as follows: (1) Nathaniel Johnson, Director,
Pretrial Services Division of Philadelphia Court of Common Pleas;
(2) the District Attorney for Philadelphia County; and (3) the
Attorney General of the State of Pennsylvania.
0
The respondents properly conceded that petitioner had exhausted
his state remedies under 28 U.S.C. § 2254(b).
0
Wilmer has represented that the state trial court has continued
the resentencing pending the outcome of this appeal.
7
We must initially determine whether the Supreme Court's
decision in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060(1989)(plurality opinion), bars consideration of the double
jeopardy issue. Under Teague, a federal court is precluded from
"granting habeas corpus relief to a state prisoner based on a
[new] rule announced after his conviction and sentence became
final." Caspari v. Bohlen, 114 S.Ct. at 953 (citation omitted).
The Teague analysis is ordinarily the first step when reviewing a
federal habeas case. Schiro v. Farley, 114 S.Ct. 783, 788
(1994). The rule, however, is not jurisdictional, and "a federal
court may, but need not, decline to apply Teague if the State
does not argue it." Caspari, 114 S.Ct. at 953.
In this case, respondents failed to raise a Teague
argument in the district court or in their brief on appeal. The
issue was not raised until we, sua sponte, requested supplemental
briefs addressing the nonretroactivity principle. Not
surprisingly, the respondents now argue that Teague forecloses
any habeas relief. Relying primarily on the Supreme Court's
recent opinion in Caspari, they contend that Wilmer's double
jeopardy argument, if accepted, would constitute a new rule which
cannot be applied retroactively in a collateral proceeding.0
0
A state conviction and sentence become final for the purpose of
retroactivity analysis when the availability of direct appeal to
the state courts has been exhausted and the time for filing a
timely petition for a writ of certiorari has elapsed. Caspari,
114 S.Ct. at 953. Wilmer's sentence became final on December 17,
1992, ninety days after September 19, 1992, the date the
Pennsylvania Supreme Court denied the petition for allocatur and
he did not petition the Supreme Court for certiorari.
8
The respondents' argument has obvious force. In
Caspari, the habeas petitioner claimed that the Double Jeopardy
Clause prohibited the state from subjecting him to successive
noncapital sentence enhancement proceedings. The State argued,
as it had in the lower courts and in its brief on the merits,
that the nonretroactivity principle articulated in Teague barred
the relief sought by the petitioner. Agreeing with the state,
the Supreme Court declined to address the merits of the double
jeopardy claim. Instead, the Court held that granting the
petitioner's request for relief "required the announcement and
application of a new rule of constitutional law." Id. at 957.
The Court found that "neither of the two narrow exceptions to the
nonretroactivity principle applie[d] to the case," since the "new
rule" was neither the type that placed "certain kinds of primary,
private individual conduct beyond the power of the criminal law-
making authority to proscribe" nor a "watershed rule[] of
criminal procedure implicating the fundamental fairness and
accuracy of the criminal proceeding." Id. at 956 (quotations and
citations omitted).
Recognizing the similarity between Caspari and the
instant appeal, we nonetheless find the cases distinguishable. In
Caspari, the State properly raised the Teague issue in the lower
courts. Consequently, the Court held that it "must apply Teague
before considering the merits of the claim." Id. at 953(citation omitted). The respondents here did not assert the
Teague rule until we identified the issue and requested
supplemental briefing. However, the appropriate time for arguing
9
that Teague barred consideration of petitioner's double jeopardy
claim was in the answer to the habeas petition and not in a
supplemental brief requested by the court on appeal. The
respondents should have been aware of the Teague defense, since
Teague was decided prior to Wilmer's filing of his habeas
petition. See Hanrahan v. Greer, 896 F.2d 241, 245 (7th Cir.
1990)("Disputes about the retroactive application of
constitutional decisions have pervaded criminal procedure over
the last 25 years."). Moreover, in Wilmer's memorandum in
support of his petition for a writ of habeas corpus, he argued at
length the applicability of the Eighth Circuit's decision in
Bohlen v. Caspari, 979 F.2d 109 (1992), which begins with a
discussion of Teague.
We hold that respondents' failure to raise the issue in
the district court constitutes a waiver of any Teague defense.
Schiro, 114 S.Ct. at 788-89. Although we have the discretion to
reach the State's Teague defense sua sponte, id. at 789, we
decline to do so in this case. In this respect we follow the
lead of the Court of Appeals for the Seventh Circuit in Hanrahan,
which declined to address the Teague question sua sponte, noting
that the court need not go into a Teague analysis where the state
failed to preserve an objection in the district court to the
retroactive application of a new rule. 896 F.2d at 245. We
therefore turn to the merits.
III.
10
"It is well established that the Double Jeopardy Clause
forbids the retrial of a defendant who has been acquitted of the
crime charged." Bullington, 451 U.S. at 437, 101 S.Ct. at 1857
(citations omitted).0 Following an acquittal, the state cannot
obtain a new trial by means of an appeal even though the
acquittal appears to be in error. Green v. United States, 355
U.S. 184, 187-88, 78 S.Ct. 221, 223-24 (1957). It sometimes has
been explained that the prosecution gets one fair opportunity to
present whatever evidence it can muster, and failing in this
effort, does not deserve a second opportunity to establish guilt.
Burks v. United States, 437 U.S. 1, 16-17, 98 S.Ct. 2141, 2149-50
(1978).
The Supreme Court traditionally has refused to extend
the Double Jeopardy Clause to sentencing. Caspari, 114 S.Ct. at
955. "The imposition of a particular sentence usually is not
regarded as an `acquittal' of any more severe sentence that could
have been imposed." Bullington, 451 U.S. at 438, 101 S.Ct. at
1857. First, "a sentence does not have the qualities of
constitutional finality that attend an acquittal." DiFrancesco,
449 U.S. at 134, 101 S.Ct. at 436. Second, noncapital sentencing
procedures generally do not have the hallmarks of a trial on
guilt or innocence. Bullington, 451 U.S. at 438, 101 S.Ct. at
1858.
0
The Double Jeopardy Clause is made applicable to the states
through the Fourteenth Amendment. Benton v. Maryland, 395 U.S.
784, 89 S.Ct. 2056 (1969).
11
In DiFrancesco, a case involving a statute similar to
the one at issue in this appeal, the defendant was convicted in
federal court of violating the Organized Crime Control Act of
1970, 18 U.S.C. § 3575, a statute predating the United States
Sentencing Guidelines. Section 3575 provided for an increased
sentence upon proof at a sentencing hearing that the convicted
defendant was a "dangerous special offender." After the
defendant was found guilty of the racketeering counts, a
dangerous special offender hearing was held. The district court
made findings of fact and ruled that the defendant was a
dangerous special offender within the meaning of § 3575, but the
court's sentence resulted only in one additional year of
imprisonment beyond that which the defendant had received on the
racketeering counts.
Section 3576 of Title 18 provided for an appeal by the
government to correct a sentence imposed after § 3575
proceedings. The government appealed, claiming that the district
court had abused its discretion in imposing such a lenient
sentence. The court of appeals rejected the government's
position, concluding that the risk of substitution of a greater
sentence upon an appeal by the government under § 3576 violated
the Double Jeopardy Clause. The Supreme Court reversed, holding
that the increase of a sentence on review under 18 U.S.C. § 3576did not violate the Double Jeopardy Clause. Specifically, the
Court rejected the contention that the imposition of a sentence
under that statute constituted an acquittal of a more serious
sentence that could have been imposed, because a defendant had no
12
expectation of finality until the statutory appeal process was
completed.
In contrast, in Bullington, a capital case, the Court
carved out an exception to the general rule that the Double
Jeopardy Clause does not apply in the sentencing context.0 The
Court held that the state could not seek the death penalty at a
second capital sentencing hearing without violating the Double
Jeopardy Clause where the defendant's first jury had declined to
impose that penalty. See also Arizona v. Rumsey, 467 U.S. 203,
104 S.Ct. 2305 (1984) (expanding Bullington to include cases
where a judge determines the sentence in a capital sentencing
proceeding). Although the Court reaffirmed the general rule that
the Double Jeopardy Clause does not prohibit imposing a harsher
sentence upon retrial, it held that a capital sentencing hearing
is not a typical discretionary sentencing hearing. It noted that
under Missouri law the prosecution in a capital sentencing
hearing does not merely recommend a sentence, but undertakes the
0
At issue in Bullington was the Missouri death penalty statute,
which provided for a separate sentencing proceeding at which the
prosecution had to prove the existence of an aggravating
circumstance beyond a reasonable doubt. At the guilt phase of
the defendant's trial, the jury returned a verdict of guilty of
capital murder. At the sentencing hearing, the jury returned a
verdict fixing the defendant's punishment at life in prison
without the possibility of parole. The defendant appealed his
conviction and won a new trial on a jury fair cross-section of
the community claim. The state then served notice that it would
again seek the death penalty on retrial. A defense motion to
strike the notice, grounded in the Double Jeopardy Clause, was
granted. Following an appeal to the Missouri Supreme Court, the
United States Supreme Court granted certiorari "in order to
consider the important issues raised by petitioner regarding the
administration of the death penalty (footnote omitted)."
Bullington, 451 U.S. at 437, 101 S.Ct. at 1857.
13
burden of proving certain facts beyond a reasonable doubt in an
effort to obtain the harshest sentence. The sentencer's
discretion also is severely cabined because the sentencer is
limited to the choice between life and death.
More importantly for this case, the Bullington court
distinguished DiFrancesco as follows:
In only one prior case, United States v.
DiFrancesco, has this Court considered a
separate or bifurcated sentencing procedure
at which it was necessary for the prosecution
to prove additional facts. The federal
statute under consideration there, the
"dangerous special offender" provision of the
Organized Crime Control Act of 1970, 18
U.S.C. §§ 3575 and 3576, requires a separate
presentence hearing. The Government must
prove the additional fact that the defendant
is a "dangerous special offender," as defined
in the statute, in order for the court to
impose an enhanced sentence. But there are
highly pertinent differences between the
Missouri procedures controlling the present
case and those found constitutional in
DiFrancesco . . . .
451 U.S. at 440, 101 S.Ct. at 1859.
The Court went on to discuss the important procedural
differences between Missouri's death penalty statute and the
federal dangerous special offender statute. They included that
the federal judge has a number of sentencing choices under 18
U.S.C. § 3575, whereas a Missouri jury must choose between life
and death, and that the government in a § 3575 proceeding need
only prove that the defendant is a dangerous offender by a
preponderance of the evidence, whereas the state in a capital
sentencing proceeding must prove the existence of an aggravating
14
circumstance beyond a reasonable doubt. Id. at 440-41, 101 S.Ct.
at 1859. The Court also noted that the statute at issue in
DiFrancesco expressly provided for appellate review of a sentence
on the record of the sentencing court. Id. In essence, the
Court saw the sentencing determination in Bullington as
constituting an acquittal for lack of evidence. By necessary
implication, the sentencing determination in DiFrancesco was not
an "acquittal" because, given the more lax procedures used at the
sentencing hearing, it was not a trial-like proceeding.
IV.
Against this background, we turn to Wilmer's double
jeopardy claim as it relates to a resentencing proceeding under
18 Pa.Cons.Stat.Ann. § 7508. Wilmer argues that the
constitutional protection against double jeopardy bars
resentencing in his case. Specifically, he claims that the state
trial court "acquitted" him of the § 7508 mandatory sentence in a
sentencing proceeding that was more like a trial on the issue of
guilt than a typical discretionary sentencing hearing. Wilmer
grounds his argument on the Supreme Court's opinions in
Bullington and Rumsey.
After reviewing the relevant case law and the state
statute at issue in this appeal, we reject petitioner's argument.
We are satisfied that the Double Jeopardy Clause does not
prohibit an enhanced sentence in a state resentencing proceeding
brought pursuant to 18 Pa.Cons.Stat.Ann. § 7508. First, we draw
instruction from the Supreme Court's decision in DiFrancesco. The
15
statute at issue there specifically provided that the sentence
was subject to appeal. The Court found that under such
circumstances the defendant "is charged with knowledge of the
statute and its appeal provisions, and has no expectation of
finality in his sentence until the appeal is concluded or the
time to appeal has expired." Id. at 136, 101 S.Ct. at 437. Like
the defendant in DiFrancesco, Wilmer had notice of Pennsylvania's
mandatory sentencing statute and its appeal provisions. Section
7508(d) expressly states that the Commonwealth "shall have the
right to appellate review of the action of the sentencing court."
Thus, the petitioner had no expectation of finality in his
sentence until the Commonwealth's appeal was concluded or the
time for appeal had expired.
In DiFrancesco, the Court also noted the human
considerations that bar a prosecution after an acquittal. Id. at
136, 101 S.Ct. at 437. For example, the defendant will be
subjected to anxiety and insecurity and the possibility that he
or she may be found guilty even though innocent. The Court
opined that those considerations have no significant application
to the prosecution's statutory right to have a sentence reviewed
because the limited appeal and subsequent resentencing does not
approximate the ordeal of a trial on the basic issue of guilt or
innocence. Id.
Like DiFrancesco, the resentencing proceeding under
§7508 will not subject the petitioner to a second trial. As we
read the opinion of the Pennsylvania Superior Court, on remand
the trial court has no choice but to impose the appropriate
16
mandatory minimum sentence set out in § 7508; no further trial-
like proceedings appear necessary. Indeed, from our reading of
§7508(d), it does not appear that further proceedings would ever
be required on resentencing where a trial court refused to impose
the mandatory minimum sentence. See, e.g., Commonwealth v.
Jones, 413 Pa. Super. 482, 605 A.2d 825, appeal denied, 531 Pa.
652, 613 A.2d 557 (1992); Commonwealth v. Logan, 404 Pa. Super.
100, 590 A.2d 300, appeal denied, 528 Pa. 622, 597 A.2d 1151(1991); Commonwealth v. Brown, 389 Pa. Super. 66, 566 A.2d 619(1989). But even if additional proceedings were necessary, the
Commonwealth would do nothing more than offer a chemical analysis
of the entire mixture0 to show that the two vials that were
tested really were representative of the entire population of
vials.
The prosecution's burden of proof under § 7508 also
suggests that the sentencing proceeding does not resemble a
trial. Pursuant to § 7508(b), the trial court invokes the
mandatory sentencing statute if it determines by a preponderance
of the evidence that the section applies. This standard, which
is the same standard involved in DiFrancesco, "stands in contrast
to the reasonable-doubt standard" at issue in Bullington, 451
U.S. at 441, 101 S.Ct. at 1859.
In light of the caselaw, the standard of proof required
at sentencing proceedings is certainly a factor in determining
0
As we read the record, after the two vials were tested, the
contents of all 61 vials were dumped together and weighed. Thus,
testing of additional vials would no longer be possible.
17
whether the imposition of one sentence constitutes an acquittal
of another. More precisely, the use at a sentencing hearing of a
preponderance of the evidence standard of proof rather than the
traditional beyond a reasonable doubt standard is significant.
See Bullington, 451 U.S. at 440-41, 101 S.Ct. at 1859. The lower
standard of proof signifies a more lax procedure which in turn
signifies that a hearing is not, in the Bullington calculus,
trial-like. DiFrancesco, 449 U.S. at 118-19 n.1, 101 S.Ct. at
427-28 n.1.0
We also draw instruction from the Supreme Court's
decision in Caspari where it stated, albeit in dictum, that, had
it decided the broader question of whether the Double Jeopardy
Clause bars an enhanced sentence in noncapital cases, it would
have limited Bullington and Rumsey to the capital sentencing
context. The Court stated that "[b]oth Bullington and Rumsey
were capital cases, and our reasoning in those cases was based
largely on the unique circumstances of a capital sentencing
proceeding." Caspari, 114 S.Ct. at 954. The Court explained
that its prior decisions "clearly establish that a sentenc[ing in
a noncapital case] does not have the qualities of constitutional
0
We use the phrase "Bullington calculus" advisedly. We are
acutely aware that the sentencing proceedings with which federal
judges regularly deal these days are driven by facts that are
often developed in extensive sentencing hearings. While these
may sometimes feel trial-like, they differ markedly from actual
trials, see generally Edward R. Becker, Insuring Reliable Fact
Finding in Guidelines Sentencing: Must the Guarantees of the
Confrontation and Due Process Clauses Be Applied?, 22
Cap.U.L.Rev. 1 (1993), and, at all events, are not trial-like
within the "Bullington calculus."
18
finality that attend an acquittal." Id. at 955 (citations and
quotations omitted).
We have previously considered a double jeopardy
challenge to a statutory scheme designed, as is Pennsylvania's
here, to reduce the discretion of the sentencer by providing for
a government appeal of an improper sentence. In United States v.
McMillen, 917 F.2d 773 (3d Cir. 1990), the government appealed a
sentence imposed under the United States Sentencing Guidelines
after the defendant had started serving the sentence, arguing
that the district court had erred in not adjusting the sentence
upward pursuant to § 3B1.3. This Court agreed and remanded for
an increased sentence. In doing so, we rejected the argument
that the government's appeal violated the Double Jeopardy Clause.
Relying on DiFrancesco, we explained that the
prohibition against double jeopardy is not implicated where a
statute specifically provides for the government to obtain
appellate review. We noted that Congress had provided the
government with the means to appeal an incorrect application of
the federal sentencing guidelines in 18 U.S.C. § 3742(b). Id. at
776-777 & n.6. Thus, the defendant was charged with the
knowledge that the government could appeal and had no expectation
of finality until the appeal was concluded or the time for appeal
had expired. We see no real difference between the federal
government's right to have an enhanced sentence meted out at a
subsequent sentencing proceeding under the Guidelines and the
circumstances presented by this appeal.
19
V.
In sum, we do not think that double jeopardy protection
attaches to sentencing proceedings under § 7508. The statute
expressly grants the state the right to appeal a sentencing
determination; thus, the petitioner did not have a reasonable
expectation of finality in the original sentence. Moreover, the
sentencing proceedings are not, within the Bullington calculus,
so trial-like as to implicate the Double Jeopardy Clause. Here,
the Commonwealth made only the showing it had to make under the
preponderance of the evidence standard. The petitioner offered
nothing in rebuttal. In fact, at the actual hearing, all that
happened in terms of presentation of evidence was that the
parties stipulated to a single fact -- the total weight of the
substance. We fail to see how this resembles a trial. See
DiFrancesco, 449 U.S. at 124, 101 S.Ct. at 430.
The order of the district court denying Wilmer's
petition for a writ of habeas corpus will be affirmed.
20