No. 96-8589 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 DETRARA HOWARD, PETITIONER v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION WALTER DELLINGER Acting Solicitor General JOHN C. KEENEY Acting Assistant Attorney General THOMAS E. BOOTH Attorney Department of Justice Washington, D.C. 20530-0001 (202) 514-2217 ---------------------------------------- Page Break ---------------------------------------- QUESTION- PRESENTED Whether the court of appeals correctly ruled that the district court lacked jurisdiction to resentence petitioner after the court of appeals reversed one count of a multi-count conviction, but the mandate did not expressly authorize resentencing on the affirmed counts. (I) ---------------------------------------- Page Break ---------------------------------------- IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 No. 96-8589 DETRARA HOWARD, PETITIONER v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION OPINIONS BELOW The opinion of the court of appeals (Pet. App. A1-A2) is not reported, but the judgment is noted at 105 F.3d 667. The prior opinion of the court of appeals (Pet. App. B1-B8) is not reported, but the judgment is noted at 56 F.3d 74. JURISDICTION The judgment of the court of appeals was entered on January 6, 1997. The petition for a writ of certiorari was filed on Monday, April 7, 1997. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). ---------------------------------------- Page Break ---------------------------------------- 2 STATEMENT Following two separate jury trials and a bench trial in the United States District Court for the Southern District of California, petitioner was convicted of armed bank robbery, in violation of 18 U.S.C. 2113(a) and (d); using and carrying a firearm during and in relation to a violent felony, in violation of 18 U.S.C. 924(c); and two counts of being a felon in possession of a firearm or ammunition, in violation of 18 U.S.C. 922(g) (1) and 924(e) (1) . He was sentenced to 300 months' imprisonment on the armed bank robbery count, concurrent with 327 months' imprisonment on the Section 922(g) (1) counts, and to a mandatory consecutive 60- month term on the Section 924 (c) count. The court of appeals reversed the armed bank robbery counts. Pet. App. B1-B8 count, but affirmed the firearm On remand, the government dismissed the bank robbery count. Petitioner moved for resentencing. The district court denied the motion. The court of appeals affirmed. Pet App. A1-A2. 1. On June 17, 1993, petitioner, a convicted felon, robbed a bank in Carlsbad, California. Petitioner pointed a pistol at the teller and directed her to give him money. Petitioner took approximately $2,340 in cash and left the bank. A law enforcement agent arrested petitioner shortly thereafter. The agent seized the firearm and a magazine that contained ammunition for the pistol. Gov't C.A. Br. 6-7. Petitioner was charged with armed bank robbery; using and carrying a firearm during a violent felony (18 U.S.C. 924(c)); ---------------------------------------- Page Break ---------------------------------------- 3 being a felon in possession of a firearm; and being a felon in possession of ammunition (18 U.S.C. 922(g) (l), 924(e) (1)) . In a jury trial before Judge Manual L. Real, petitioner was found guilty on the armed bank robbery charge and Section 922(g) (1) charges. The jury, however, deadlocked on the Section 924(c) charge. Judge Real sentenced petitioner to 300 months on the armed bank robbery charge and to concurrent 327-month terms on the Section 922(g) (1) convictions. Thereafter, before Judge Judith N. Keep, petitioner was convicted on the Section 924(c) charge. Judge Keep sentenced petitioner to a mandatory five-year consecutive sentence on that conviction. Gov't C.A. Br. 4. Petitioner challenged his convictions on appeal. The court of appeals affirmed in part and reversed in part. Pet. App . B1-B8 . The court affirmed the firearm counts under Section 922(g) (1) and Section 924(c). The court reversed petitioner's armed bank robbery charge on the ground that he was denied the right to a neutral and detached judge based on Judge Real's prejudicial comments before the jury. The concluding paragraph stated: "AFFIRMED in part and REVERSED in part." Pet. App. B8. On remand, the government dismissed the armed bank robbery count. Petitioner then moved for resentencing, which Judge Keep denied for lack of jurisdiction. Pet. 3-4; Gov't C.A. Brief at 5. 2. The court of appeals affirmed. Relying on circuit precedent, the court held that when one of multiple convictions is reversed and remanded, and the others affirmed, a district court does not have jurisdiction to resentence on the affirmed counts. ---------------------------------------- Page Break ---------------------------------------- 4 A district court's authority to resentence must be based either on the court of appeals' mandate under 28 U.S.C. 2106 or under Fed. R. Crim. P. 35. The court stated that "the mandate reversing [petitioner's] armed bank robbery conviction did not grant the district court jurisdiction to resentence on the affirmed convictions." Pet. App. A2. The court stated that Fed. R. Crim. P. 35 did not confer jurisdiction to resentence as it applies only to illegal sentences, not illegal convictions. The court also stated that an alleged violation of 18 U.S.C. 3553(c) did not confer jurisdiction to resentence in the district court. Pet. App. A1-A2. ARGUMENT Petitioner contends (Pet. 8-14) that the court of appeals erred in holding that the mandate in its first decision barred the district court from resentencing him. 1. A district court does not have inherent power to resentence a defendant at any time. To the contrary, Congress enacted 18 U.S.C. 3582 and 3742 and ratified Fed. R. Crim. P. 35 and 36 "to insulate criminal sentences from change by the district court." United States v. Burd 86 F.3d 285, 289 (2d Cir. 1996). Under 28 U.S.C. 2106, a court of appeals has the authority to vacate and remand an entire sentencing package even if it includes an unchallenged sentence. Id. at 288-289; United States v. Clements, 86 F.3d 599, 600-601 (6th Cir. 1996). Nothing in Section 2106 requires the court of appeals to include such a resentencing instruction as part of its remand order. That is particularly true ---------------------------------------- Page Break ---------------------------------------- 5 where, as here, a defendant does not request that form of relief on appeal. The court of appeals ruled that its previous mandate did not give the district court authority to resentence the defendant on the affirmed counts. Pet. App. A2. The court correctly determined that its mandate did not specifically authorize resentencing and that the statutes authorizing a district court to resentence a defendant following appellate reversal of an illegal sentence were inapplicable because the prior court of appeals decision had reversed petitioner's unlawful conviction, not his sentence. Ibid 2. In United States v. Shue 825 F.2d 1111 (7th Cir.), cert. denied, 484 U.S. 956 (1987), the court of appeals affirmed one count of a multi-count conviction, reversed the remaining counts, and remanded for a new trial on the reversed convictions. On remand, the district court, upon government motion, resentenced the defendant on the affirmed count. On appeal, the court of appeals concluded that the district court had the authority to resentence the defendant on the affirmed count notwithstanding that the original mandate did not explicitly vacate the sentencing package and remand for resentencing. The court stated that, "despite the unfortunate language of our earlier remand order," (825 F.2d at 1113) , "the nature of proceedings" in the court of appeals during the first appeal "supplied no reason for a deviation from the general rule that, when an appellate court affirms some counts and reverses others, it is open to the district court to resentence [a ---------------------------------------- Page Break ---------------------------------------- 6 defendant] in order to effectuate the original sentencing intent." Id. at 1113. The Seventh Circuit's view in Shue that an express order of resentencing is not required when an appellate court issues a partial affirmance on a multi-count conviction is broader than the Ninth Circuit's rule, but the issue does not warrant review by this Court. 1 First, a criminal defendant can avoid the issue raised in this case by requesting on appeal that the court of appeals issue a mandate expressly authorizing resentencing. In addition, if the court's mandate omits a resentencing order, the defendant can seek modification or clarification of the mandate to include an express provision for resentencing in a petition for rehearing under Fed. R. App. P. 40 and 41. Second, the Ninth Circuit has recognized that in some circumstances, the omission of an express form of relief in the mandate does not bar the district court from ordering that relief if it is otherwise clear that the court of appeals intended to authorize the district court to order that relief. That appeared ___________________(footnotes) 1 Petitioner errs (Pet.10-11) in contending that other circuits are in accord with the Seventh Circuit's approach. In United States v. Pimienta-Redondo, 874 F.2d 9, 12 (lst Cir.), cert. denied, 493 Us. 890 (1989), the district court was authorized to resentence the defendant on the affirmed counts because the mandate on the first appeal specifically "remitted the case for resentencing." In United States v. Pinkney, 551 F.2d 1241, 1243, 1246 (D.C. Cir. 1976), the case was specifically "remanded for resentencing. " Those cases are consistent with the decision below. In addition, petitioner's reliance on United States v. Cox, 83 F.3d 336 (10th Cir. 1996), is misplaced. In Cox, which was a collateral challenge under 28 U.S.C. 2255, subsequent events cast doubt on the legality of the original sentence. ---------------------------------------- Page Break ---------------------------------------- 7 to be the case in Shue, because the government itself filed the motion for resentencing based on the court of appeals' disposition of the case. See 825 F.2d at 1112. Similarly, in United States v. Cote, 51 F.3d 178 (9th Cir. 1995), the court ruled that the district court had the power to retry the defendants after their convictions were reversed on appeal even though the mandate did not expressly authorize a retrial. In addition, when the Ninth Circuit reverses a sentence on one count of a multi-count conviction, the district court has jurisdiction on remand to reconsider the entire sentencing package. See United States v. Moreno-Hernandez, 48 F.3d 1112, 1116 (9th Cir.), cert. denied, 115 S. Ct. 2598 (1995); United States v. Caterino, 29 F.3d 1390, 1395 (9th Cir. 1994); United States v. Jenkins, 884 F.2d 433, 440 (9th Cir.), cert. denied, 493 Us. 1005 (1989). Thus , the rule invoked by the court below in this case appears to apply only to the finite class of cases in which the defendant challenges his convictions but not his sentences and makes no effort to persuade the court of appeals to order resentencing as part of its mandate on remand. Petitioner further contends (Pet. 12-13) that the decision below conflicts with cases holding that the rule that the mandate binds the district court is not a jurisdictional rule, but is a rule of policy and practice that allows for some flexibility in exceptional cases. That contention is misplaced. The court below held only that a district court lacks jurisdiction to resentence a defendant absent authority conferred by statute or found in the court of appeals' mandate; it did not hold that its mandate rule is ---------------------------------------- Page Break ---------------------------------------- 8 a jurisdictional rule that has no flexibility in exceptional circumstances. Indeed, the Ninth Circuit's decision in Cote shows that the Ninth Circuit takes a flexible view of the mandate rule in appropriate circumstances. 3. Petitioner's final contention (Pet. 13-14) that the court of appeals' decision prevents a district court from resentencing a defendant in accordance with its original intent is without a foundation in this case. Judge Real, the judge who imposed the original sentence on petitioner on the armed bank robbery and the Section 922(g) (1) counts, did not preside over petitioner's motion for resentencing, nor did he express the view that a reduced sentence would be appropriate if any of petitioner's convictions were reversed on appeal. Although Judge Keep indicated that she believed that the original sentence was too long, she did not impose the original sentence. In those circumstances, petitioner's claim that the decision below frustrates the original sentencing plan is speculative. 2 ___________________(footnotes) 2 Petitioner's suggestion (Pet. 12) that he was entitled to resentencing based on a violation of 18 U.S.C. 3553 (c) lacks merit. Section 3553(c) merely requires a sentencing court to state the reasons for the imposition of a particular sentence "at the time of sentencing ." Under the plain language of the statute, Section 3553(c) can be violated only at the time of sentencing. Because petitioner concedes that the district court complied with Section 3553(c) at the time of the original sentencing, the court of appeals' decision and remand did not retroactively violate Section 3553(c) . ---------------------------------------- Page Break ---------------------------------------- 9 CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. WALTER DELLINGER Acting Solicitor General JOHN C. KEENEY Acting Assistant Attorney General THOMAS E. BOOTH Attorney JUNE 1997