Robert E. Barnes v. United States

419 F.2d 753

• Court: Court of Appeals for the D.C. Circuit
• Decided: January 30, 1970
• Docket: 21581-21584
• Status: Published

Opinions

PER CURIAM:

Appellant Barnes is presently incarcerated in a Maryland penitentiary serving a state sentence. In early 1965, Barnes was convicted on a federal indictment, Cr. No. 869-64, of housebreaking, grand larceny and assault. The sentencing judge imposed a sentence of five to 15 years to run concurrently with the Maryland sentence. This court reversed that conviction on grounds not relevant to the present appeal and remanded for a new trial.¹ On remand, appellant pleaded guilty to all charges in Cr. No. 869-64; at the same time he also entered guilty pleas to three other separate federal indictments. This time the District Court imposed sentences of five to 15 years on each of the four indictments (including Cr. No. 869-64) — the four sentences to run concurrently with each other, but consecutive to the Maryland jail term.

On this appeal, appellant challenges the constitutionality of the increased severity of the sentence imposed on Cr. No. 869-64 following his guilty plea on remand since the sentence now is consecutive to the state sentence instead of running concurrently with it.² We delayed decision of this appeal pending the Supreme Court’s decisions in North Carolina v. Pearce³ and Simpson v. Rice.⁴

In Pearce and Rice the Court held that when a criminal conviction is set aside on appeal and a new trial ordered, a harsher sentence may not be imposed upon conviction on retrial unless the increased severity is justified on the basis of “identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding.” ⁵ In this case, there was no such showing; in fact, appellant cooperated fully with the Government in breaking up a large burglary ring. Thus the change of the sentence on Cr. No. 869-64 from concurrent to consecutive was error in violation of the due process clause, and that sentence must be revised.

Revision, however, presents problems. This court could simply order that the improperly increased federal sentence under Cr. No. 869-64 run concurrently with the state sentence. But for several reasons such action may delay the start of the three valid consecutive federal sentences imposed at the same time, thereby increasing those sentences.⁶ First, although we are not in a position to make a definitive judgment on this point, we might prejudice appellant’s chance for a Maryland parole if we now order the federal sentence in Cr. No. 869-64 to run concurrently with the Maryland sentence. Second, since state and federal parole decisions are made independently, if appellant were paroled from his Maryland sentence, there is no guarantee that federal authorities would also parole him from the 869-64 sentence. Under these circumstances, appellant might have to serve the time remaining on that sentence before the three consecutive federal sentences began to run. Finally, the record before us is unclear as to the length of the Maryland sentence and the date appellant began serving it. If, for any reason, the concurrent federal sentence in Cr. No. 869-64 expires later than the Maryland sentence, again the start of the three consecutive federal sentences may be delayed.

We are, of course, bound by the rule that a valid sentence once imposed and being served cannot be increased.⁷ The three federal sentences other than the one based on Cr. No. 869-64 remain valid and are not affected by this appeal. Since the sentence to which they are “anchored” — the Maryland jail term — has begun to be served by appellant, the three valid consecutive federal sentences may not be increased. See Owensby v. United States, 10 Cir., 385 F.2d 58 (1967).⁸ We therefore conclude that this case cannot be brought into harmony with Pearce simply by changing the sentence in Cr. No. 869-64 from one that is consecutive to the Maryland sentence to one that runs concurrently with it.

Under the circumstances, we believe that the appropriate disposition is to remand this case to the sentencing judge for resentencing in light of the relevant constitutional principles herein discussed.

Remanded for proceedings consistent with this opinion.

1 . Barnes v. United States, 124 U.S.App. D.C. 318, 365 F.2d 509 (1966).

2 . In his brief, appellant states that he challenges the validity of the other three sentences as well, but his arguments and citations concern only the validity of the new sentence in Cr. No. 869-64. We therefore address ourselves only to appellant’s challenge to that sentence. Appellant also raises several other points on appeal which we have carefully considered and find without merit.

3 . 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed. 2d 656 (1969).

⁴

5 . 395 U.S. at 726, 89 S.Ct. at 2081.

6 . Consecutive sentences are increased if the date at which they are to start is delayed, even though the length of the sentence itself remains the same. See Owensby v. United States, 10 Cir., 385 F.2d 58 (1967).

7 . United States v. Benz, 282 U.S. 304, 51 S.Ct. 113, 75 L.Ed. 354 (1931); United States v. Sacco, 2 Cir., 367 F.2d 368 (1966); Owensby v. United States, supra Note 6.

8 . Deutschmann v. United States, 9 Cir., 254 F.2d 487, 490-491, cert. denied, 357 U.S. 928, 78 S.Ct. 1377, 2 L.Ed.2d 1374 (1958), holds that a consecutive sentence may be increased even though the sentence to which it is anchored has begun to be served. That ease is clearly distinguishable from the present one since the sentence increased there was completely invalid originally. But the Deutschmann court’s stated position is, of course, directly contrary to Owensly and, we believe, unwise. The Deutsch-mann logic would allow a judge to increase a valid consecutive sentence long after it had been imposed. Apparently a prisoner would remain subject to the threat that his valid consecutive sentence could be increased until he had served all the prison terms to which the consecutive sentence was anchored. This, of course, would defeat all the policies behind the rule forbidding an increase in sentence after it has begun to be served. See Annot., 168 A.L.R. 706, 709 (1947).