United States v. Paul H. "Bud" Holmes

JOHN R. BROWN, Circuit Judge,

concurring in part and dissenting in part:

The sentence of both imprisonment and a fine under § 401 was illegal at the very moment it was imposed and announced. The trial court has the power and the duty to correct it at any time — indeed, even after all or part of it has been served. Principles of double jeopardy do not protect a person from such correction.

I therefore vigorously dissent from the Court’s holding that the sentence is beyond correction. I concur, however, in the Court’s conclusion that Holmes was charged in the information with a single count of contempt and in its conclusion that there is no basis whatsoever for the government’s contention that 18 U.S.C. § 3623 authorizes a $10,000 fine in addition to a prison sentence for a single contempt under 18 U.S.C. § 401.

My disagreement with the Court lies entirely with its reliance on the authority of In re Bradley, 318 U.S. 50, 63 S.Ct. 470, 87 L.Ed. 608 (1943). In re Bradley relies entirely on Ex parte Lange, 85 U.S. (18 Wall.) 163, 21 L.Ed. 872 (1874), which was restricted to its facts by the Supreme Court in United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980). Thus, the continued validity of Bradley is extremely questionable.

This Court has not hesitated to reform illegal sentences under F.R.Crim.P. 35 even after a legally complete portion of that sentence has been served when the portion served was imprisonment. I find no reason to hold otherwise just because the portion of the sentence Holmes has incurred is a monetary fine.

The Mortar of Amending an Illegal Sentence

Rule 35 provides that “[t]he court may correct an illegal sentence at any time.” Not only does the District Court have the ability to correct illegal sentences under Rule 35, we have additionally held that “when a sentence imposed ... does not conform to the applicable penalty statute, [the District Court] has a duty to correct this sentence.” United States v. Hilburn, 625 F.2d 1177, 1182 (5th Cir.1980), citing United States v. Allen, 588 F.2d 183, 185 (5th Cir.1979). As the Court unanimously concludes, a sentence of both a fine and imprisonment under § 401 is an illegal sentence, the only question is determining what relief is available to correct this illegal sentence.

In United States v. Hilburn, 625 F.2d 1177, 1181 (5th Cir.1980), we affirmed the District Court’s correction of a sentence which imposed both a fine and imprisonment for contempt under § 401. We did not reach the Bradley question there because the illegal sentence was corrected prior to any attempt by the defendant to satisfy either portion.¹ Therefore, there is no way to get away from the startling fact that Holmes’ sentence, illegal from the very moment it was announced by the District Court, was subject at that time to correction under F.R.Crim.P. 35(a). In re Bradley becomes a necessary factor in our analysis because, unlike Hilburn, Holmes’ sentence was not reformed until after he paid his fine.

Cracks in the Foundation

The primary question on this appeal— and my principal difference with the Court — is whether the Bradley rule has continuing validity following the adoption of F.R.Crim.P. 35 and the Supreme Court’s decision in United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980).

It is beyond reproach that Bradley is on point with this case and has not yet been explicitly overruled by the Supreme Court. Many would stop the inquiry here, however, to do so would ignore our obligation to interpret and apply later developments in case law in a logical and reasonable fashion. At the same time, it would be equally remiss to suggest that in our role as an article III inferior court, we stand in a position to review the correctness of a decision of the Supreme Court which has not been undone by that Court’s later decisions. Yet because Bradley’s foundation has been so severely eroded, I find it necessary to examine other developments in the law for the best evidence of the status of the current law.

Thus, I find myself in the audacious, and generally impermissible position of seriously questioning whether the Supreme Court’s prior decision has been implicitly overruled by its later decisions and rulings. As a Judge sworn to uphold the law and enthusiastic in my unqualified support of the absolute hierarchical supremacy of Supreme Court decisions, I must have a substantial basis for believing that I may follow such a course. There is a substantial precedent in the Fifth Circuit for doing so.

Judge Richard T. Rives, former Chief Judge and a distinguished Judge of this Court, found himself in a similar position writing for the three Judge District Court panel in the celebrated Montgomery, Alabama bus case of Browder v. Gayle, 142 F.Supp. 707 (M.D. Ala. 1956), aff'd, 352 U.S. 903, 77 S.Ct. 145,1 L.Ed.2d 114 (1956), in stating that Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256 (1896), was implicitly overruled by Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954). The Supreme Court referred to Plessy six separate times in Brown v. Board without ever expressly overruling it.² Nevertheless, over the respectful dissent of District Chief Judge Seyboum H. Lynne, Judge Rives, obviously conscious of the portent of his actions, wrote:

Even a statute can be repealed by implication. A fortiori, a judicial decision, which is simply evidence of the law and not the law itself, may be so impaired by later decisions as no longer to furnish any reliable evidence. We cannot in good conscience perform our duty as judges by blindly following the precedent of Plessy v. Ferguson ... when our study leaves us in complete agreement ... that the separate but equal doctrine can no longer be safely followed as a correct statement of the law. In fact, we think that Plessy v. Ferguson has been impliedly, though not explicitly, overruled and that, under the later decisions, there is now no rational basis upon which the separate but equal doctrine can be validly applied to public carrier transportation.

Id. at 716-17.

Similarly, my study of In re Bradley, Rule 35, and DiFrancesco leaves me with the firm conviction that Bradley is no longer a controlling statement of the law.

The Wall Comes Tumbling Down

The crucial language of Bradley states: When ... the fine was paid to the clerk and receipted for by him, the petitioner had complied with a portion of the sentence which could lawfully have been imposed. As a judgment of the court was thus executed so as to be a full satisfaction of one of the alternative penalties of the law, the power of the court was at an end. [citing Ex parte Lange ].

In re Bradley, 318 U.S. at 52, 63 S.Ct. at 471, 87 L.Ed. at 609.

This is not the proposition which Ex parte Lange continues to support. In DiFrancesco the Supreme Court restricted Ex parte Lange to its facts. The Supreme Court stated: “The holding in Lange, and thus the dictum in [United States v.] Benz, [282 U.S. 304, 51 S.Ct. 113, 75 L.Ed. 354 (1931),] are not susceptible of general application. We confine the dictum in Benz to Lange’s specific context.” DiFrancesco, 449 U.S. at 139,101 S.Ct. at 438, 66 L.Ed.2d at 347.

Lange was sentenced to one year imprisonment and a $200 fine under a statute providing for either fine or imprisonment. After serving five days in jail, he paid his fine and moved to vacate the remaining portion of his prison sentence. The District Court vacated his sentence and re-sentenced Lange to one year’s imprisonment commencing from that date. Thus, the total sentence Lange would have served was one year and five days which exceeded the one year maximum under the statute. The Court traced its inability to amend a sentence in 1874 back to the English common law. It concluded that a Court was without authority to vacate a sentence and re-sentence the defendant, even if done during the same term, because it had no way of avoiding the portion already served. Hence, the result would be that the defendant would serve two sentences for a single crime. Lange, 85 U.S. (18 Wall.) at 168-78, 21 L.Ed. at 876-78.

The Supreme Court, in DiFrancesco, held that Ex parte Lange continues to support the proposition that “a defendant may not receive a greater sentence than the legislature has authorized.” DiFrancesco, 449 U.S. at 139, 101 S.Ct. at 438, 66 L.Ed.2d at 347. It no longer supports the proposition cited in Bradley that once an alternative penalty of a sentence is served, the Court is unable to reform the remaining portion to make the total sentence legal.

When the Supreme Court restricted Ex parte Lange, it made no mention of Bradley. However, Bradley relied almost exclusively on Ex parte Lange. By limiting Lange to its facts, the Supreme Court casts grave doubt on the continued validity of Bradley which had expanded Lange’s original holding.³

The later development of sentence correction law under F.R.Crim.P. 35 demonstrates that, contrary to the Court’s conclusion in both Bradley and Lange, the power of a Court is no longer at an end once a portion of the sentence is incurred. “Correction of a sentence imposed in an illegal manner does not violate double jeopardy even if the correction increases the punishment, and the fact that [the defendant] has commenced serving the sentence is irrelevant.” United States v. Crawford, 769 F.2d 253, 258 (5th Cir.1985), cert. denied, — U.S. -, 106 S.Ct. 887, 88 L.Ed.2d 922 (1986), quoting United States v. Stevens, 548 F.2d 1360, 1362-63 (9th Cir.), cert. denied, 430 U.S. 975, 97 S.Ct. 1666, 52 L.Ed.2d 369 (1977);⁴ see also, United States v. DiFrancesco, 449 U.S. at 132-39, 101 S.Ct. at 434-38, 66 L.Ed.2d at 342-47; Bozza v. United States, 330 U.S. 160, 166, 67 S.Ct. 645, 649, 91 L.Ed. 818, 822 (1947), United States v. Allen, 588 F.2d 183, 185 (5th Cir.1979).

As the majority identifies, since the adoption of F.R.Crim.P. 35, we have not hesitated to correct illegal sentences even after service of the sentence has begun. See, e.g., United States v. Olivares, 786 F.2d 659 (5th Cir.1986); United States v. Crawford, 769 F.2d 253 (5th Cir.1985), cert. denied, — U.S. -, 106 S.Ct. 887, 88 L.Ed.2d 922 (1986); United States v. Denson, 603 F.2d 1143 (5th Cir.1979) (en banc); United States v. Allen, 588 F.2d 183 (5th Cir.1979); Llerena v. United States, 508 F.2d 78 (5th Cir.1975).

The majority distinguishes these cases by adopting Bradley’s language that once the defendant has complied with a portion of the sentence which could lawfully have been imposed, the Court may not later reform that sentence. Yet, in United States v. Rollins, 543 F.2d 574, 575 (5th Cir.1977), the defendant was sentenced to a term of three years and a term of ten years under a statute which provided for a maximum of ten years imprisonment. After the defendant served his three-year sentence, this Court permitted his ten-year sentence to be reformed so that “when coupled with the other three years already served, [it] will not exceed the statutory maximum.” Rollins’ reformed sentence did not violate his rights against double punishment because, as reformed, his total sentence did not exceed the statutory maximum.

In Ex parte Lange, the only option then available was to vacate the earlier sentence and begin a new one, there was no method by which the Court could amend an invalid sentence. We now have the means in Rule 35 to credit a defendant with that portion of a sentence already served to effectuate the imposition of a legal sentence consistent with the trial Judge’s intent. The record, including that of the Rule 35 hearing, clearly indicates the trial Judge intended for Holmes to, at a minimum, serve a prison term and in addition, if possible, pay a fine. The fact that Holmes won the race to the clerk’s office and paid his fine prior to the Judge correcting his illegal sentence by eliminating the fine should not preclude this Court or the District Court from correcting his sentence in a way which its notions of justice are served rather than in a way Holmes naturally urges.

It is well established that a sentence which does not comply with the letter of the criminal statute which authorizes it is so erroneous that it may be set aside on appeal____But in those cases it was recognized that an excessive sentence should be corrected, even though the prisoner had already served part of his term, not by absolute discharge of the prisoner, but by an appropriate amendment of the invalid sentence by the court of original jurisdiction____The Constitution does not require that sentencing should be a game in which the wrong move by a judge means immunity for the prisoner.

Bozza v. United States, 330 U.S. 160, 166-67, 67 S.Ct. 645, 649, 91 L.Ed. 818, 822 (1947).

Holmes will not be subject to double punishment in violation of Ex parte Lange if under the Court’s direction, the money paid as a fine to the clerk is returned. The punishment of a fine is not the event of payment of the fine, but rather it is the permanent loss of money.⁵

My study of Rule 35 and DiFrancesco’s limitation on the singular case Bradley relies upon compels me to conclude that there is no rational basis upon which the Bradley rule can be validly applied so that a defendant, can prevent the Court from chosing the method in which an illegal sentence is reformed. I find no reason to distinguish between crediting and returning to the defendant money improperly paid into the Court than with crediting him for prison time improperly served. Ex parte Lange has been restricted to its facts and Bradley has suffered a similar fate.

This case compels me, with all conscientious deference to the supremacy of Supreme Court law to conclude that the basis for the Bradley decision is no longer valid and that the power of the Court is no longer at an end when a defendant has satisfied a portion of an illegal sentence. Unlike the pre-Rule 35 situation the Bradley Court faced, the subsequent amendment of Holmes’ sentence could avoid the satisfaction of the judgment by crediting and returning to Holmes the $10,000. If this were done, the Court could then impose, as it attempted to do, a legally correct sentence, the service of which would not result in double jeopardy.

I join the Court in its disparagement of Holmes’ conduct and that the trial Court thought it deserves a prison sentence. The District Court was emphatic during Holmes’ Motion to Vacate hearing that the circumstances mandated a prison sentence. Since all have conceded — and still do — that the sentence was illegal, constitutionally demanding correction, I would allow the District Court to reform the sentence so as to avoid the “miscarriage of justice” identified by this Court’s holding. I therefore, respectfully and vigorously dissent.

1 . Hilburn attempted to pay the fine the day after the District Court reformed his sentence under Rule 35. His check was returned by the clerk along with a letter informing him that the fíne had been previously withdrawn by the Court. This Court rejected the defendant’s argument “that his tender of the fine constitutes satisfaction of one alternative provision of the original sentence ... since ... the original sentence was modified prior to the time the defendant attempted to pay the fine.” Hilburn, 625 F.2d at 1181.

2 . Today, few would dispute that the Supreme Court overruled Plessy v. Ferguson in Brown v. Board. Yet even today, when one shepardizes Plessy v. Ferguson, Brown v. Board is only listed as questioning it — no where to date has the Supreme Court expressly overruled Plessy. Hence, under the majority"s view, we would be required to continue to uphold the separate but equal doctrine in transportation cases as several courts did immediately following Brown. Judge Lynn earnestly argued, as the majority has in this case, that we are bound by prior Supreme Court cases until such time as it is expressly overruled by that Court. Browder, 142 F.Supp. at 717-21, (Lynn, J., dissenting).

3 . In Ex parte Lange, the Court held that it was unable to avoid double punishment because *he fine had already passed into the United States Treasury and was beyond the reach of the Courts. In Bradley, the Court held, without discussion, that it was "unimportant that the fine had not been covered into the treasury.” Bradley, 318 U.S. at 52, 63 S.Ct. at 471, 87 L.Ed. at 609.

4 . In Crawford, this Court rejected the appellants’ argument that the case was controlled by United States v. Henry, 709 F.2d 298 (5th Cir. 1983) (en banc). “Henry contained dictum stating that ‘this court is constrained to follow Ex parte Lange — as it was generally understood before the Court’s ruling in DiFrancesco — in every Rule 35 case.’ ... We are not bound by dictum of a minority of the en banc court, and we decline to follow it.” Crawford, 769 F.2d at 258, quoting Henry, 709 F.2d at 310.

5 . In this day and time of almost limitless power of the Federal Courts, there can be no serious question of the power of the judiciary to order the repayment by the government of the fine illegally paid by Holmes to the clerk. The alacrity of Holmes cannot frustrate the Court in its purpose to vacate the illegal sentence and impose a legal sentence reflecting the Judge’s purpose.