United States v. Jude Somerset Hardesty

958 F.2d 910, 92 Daily Journal DAR 3199, 92 Cal. Daily Op. Serv. 2035, 1992 U.S. App. LEXIS 3742, 1992 WL 42369

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 10, 1992
• Docket: 90-30260
• Status: Published

Opinions

FERGUSON, Circuit Judge:

While serving a ten-year state prison term, defendant-appellant Hardesty was convicted in federal district court in 1984 of possessing a sawed-off shotgun in violation of 26 U.S.C. §§ 5861(d) & 5871. He was sentenced to a ten year term of imprisonment to run consecutively to the state prison sentence. Upon completing his state prison term in 1990, Hardesty filed a motion under 28 U.S.C. §'2255 and former Fed.R.Crim.P. 35(a),¹ contending that the consecutive sentence was “illegal.” He re-questéd that his sentence be- reduced to time already served and, in the alternative, that probation be substituted for the federal sentence. He now appeals from the denial of this motion, and we affirm.

DISCUSSION

I. Consecutive Sentence

Hardesty’s first argument is that the-sentencing judge improperly ordered his federal sentence to run consecutively to the, previously imposed state sentence. We review this legal issue de novo. United States v. Wills, 881 F.2d 823, 825 (9th Cir.1989). Hardesty relies upon United States v. Terrovona, 785 F.2d 767 (9th Cir.), cert. denied, 476 U.S. 1186, 106 S.Ct. 2926, 91 L.Ed.2d 553 (1986), where we held that a district court had no authority to order that the sentence be served either consecutively or concurrently but could only make a recommendation to the Bureau of Prisons. Id: at 770. We explained that the Bureau would then effectively decide the length of the sentence by designating where it would be served, but assumed that the Bureau would follow the court’s recommendation. Id.

For its part, the government argues that the consecutive sentence was lawful, based on the authority of United States v. Thornton, 710 F.2d 513 (1983), which predated Terrovona. Thornton clearly holds that although former 18 U.S.C. § 3568 limits the authority, of judges to order concurrent terms, there was no corresponding limit on their authority to order that sentences' be served consecutively. Id. at 516. See also United States v. O’Brien, 789 F.2d 1344, 1346 (9th Cir.1986) (following Thornton). The government contends that because the three-judge Terrovona panel did not have the authority to overrule an earlier decision, Thornton remains good law and the district court was correct in following it here.

Thornton and Terrovona are clearly in conflict. Normally, when faced with an irreconcilable intra-circuit conflict of this nature, the proper course would be to cal for an en banc panel to resolve the conflict. Atonio v. Wards Cove Packing Co., 810 F.2d 1477, 1478-79 (9th Cir.1987) (en banc), cert. denied, 485 U.S. 989, 108 S.Ct. 1293, 99 L.Ed.2d 503 (1988); Tornay v. United States, 840 F.2d 1424, 1427 n. 3 (9th Cir.1988). However, such a call is not required where, as here, the conflict may be reconciled or avoided. See United States v. Whitehead, 896 F.2d 432, 434 (9th Cir.), cert. denied, — U.S. -, 111 S.Ct. 342, 112 L.Ed.2d 306 (1990) (unnecessary to call for en banc review); United States v. Sotelo-Murillo, 887 F.2d 176, 179 (9th Cir.1989).

On occasion, we have also found it appropriate to follow one of two conflicting lines of authority without calling for en banc review. This is especially true where, as here, Congress has undermined one of the conflicting cases by amending a substantive statute. See, e.g. Landreth v. Commissioner, 859 F.2d 643, 648 (9th Cir.1988). See also State of Cal., Dept. of Health Servs. v. U.S. Dept. of Health & Human Servs., 853 F.2d 634, 638 (9th Cir.1988) (panel may disregard earlier decision if substantive law has changed); United States v. Magana, 797 F.2d 777, 779 (9th Cir.1986).

In a closely analogous situation, we are asked to make “the unsatisfactory choice between two opposing lines of authority, neither of which has an unimpaired claim to being the law of the circuit” without the aid of an intervening decision by Congress or the Supreme Court. Greenhow v. Sec. of Health & Human Servs., 863 F.2d 633, 636 (9th Cir.1988). In such cases, a panel may follow the rule which has “successfully posed as the law of the circuit for long enough to be relied upon.” Id. See also Royal Dev. Co. v. NLRB, 703 F.2d 363, 368-69 (9th Cir.1983) (panel bound by circuit authority, regardless of alternate views).

In the case at bar, both these special situations exist, and each counsels us to follow the earlier Thornton case rather than Terrovona. Consecutive sentencing has been permitted by the law of this circuit at least since 1941. See Gunton v. Squier, 185 F.2d 470, 471 (9th Cir.1950) (approving consecutive sentence); Hayden v. Warden, 124 F.2d 514 (9th Cir.1941) (same). In Gunton, we noted:

It is a well-recognized rule of law that a person who has violated the criminal statutes of both the Federal and State Governments may not complain of the order in which he is tried or punished for such offenses. Each is a sentence unto itself, otherwise there would be no orderly procedure in handling cases of this kind between two sovereigns.

Gunton, 185 F.2d at 471. Since our restatement of this rule in Thornton, our own caselaw and that of our sister circuits have been nearly unanimous in following it. In comparison, our research has revealed no appellate cases that have approved of the Terrovona analysis. See, e.g. United States v. O’Brien, 789 F.2d 1344, 1346 (9th Cir.1986) (following Thornton); United States v. Eastman, 758 F.2d 1315, 1318 (9th Cir.1985) (discussing Thornton).

Eight of our sister circuits agree. “The federal district court has the undoubted power to impose a federal sentence that is not to commence until service of an existing state sentence for an unrelated offense has been completed.” Pinaud v. James, 851 F.2d 27, 30 (2nd Cir.1988). See also Harding v. United States, 851 F.2d 1305, 1306 (11th Cir.1988) (authority of federal judges to impose consecutive sentences well-settled); Salley v. United States, 786 F.2d 546, 547 (2d Cir.1986) (citing cases). See also United States v. Campisi, 622 F.2d 697, 699 (3rd Cir.1980); Causey v. Civiletti, 621 F.2d 691, 694 (5th Cir.1980) (citing Gunton, 185 F.2d at 471); Cox v. United States ex rel. Arron, 551 F.2d 1096, 1098 (7th Cir.1977) (trial court has “inherent power” to impose consecutive sentences) (citing McKee v. United States, 289 F.2d 557 (7th Cir.1961)); United States v. Lee, 500 F.2d 586, 587-88 (8th Cir.), cert. denied, 419 U.S. 1003, 95 S.Ct. 322, 42 L.Ed.2d 279 (1974); Anderson v. United States, 405 F.2d 492, 493 (10th Cir.), cert. denied, 394 U.S. 965, 89 S.Ct. 1318, 22 L.Ed.2d 567 (1969); Jervis v. United States, 382 F.2d 592, 593 (1st Cir.1967) (“The federal court had a clear right to recognize and accede to the state custody.”); Green v. United States, 334 F.2d 733, 736 (1st Cir.1964) (“no impropriety” in imposing federal sentence consecutive to state sentence), cert. denied, 380 U.S. 980, 85 S.Ct. 1345, 14 L.Ed.2d 274 (1965).

By contrast, Terrovona has been expressly rejected by two circuits, Harding v. United States, 851 F.2d 1305, 1306 (11th Cir.1988); United States v. Pungitore, 910 F.2d 1084, 1118 (3rd Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 2009, 114 L.Ed.2d 98 (1991), and followed only by a single district court, United States v. Posey, 665 F.Supp. 848, 850 (C.D.Cal.1987). Thus, Terrovona stands alone in failing to recognize the rule enunciated in Thornton as the law of the circuit. Instead, it erroneously assumed that the district court had no authority to order that the sentence be served consecutively, completely ignoring Thornton and relying on three unrelated cases, United States v. Williams, 651 F.2d 644 (9th Cir.1981), United States v. Segal, 549 F.2d 1293 (9th Cir.), cert. denied, 431 U.S. 919, 97 S.Ct. 2187, 53 L.Ed.2d 231 (1977), and United States v. Myers, 451 F.2d 402 (9th Cir.1972).

Unfortunately, none of these three cases actually stand for the proposition for which Terrovona cites them. On the contrary, they focus on the issue of whether a district court could order a concurrent sentence under former 18 U.S.C. § 3568.² See, e.g. Myers, 451 F.2d at 404; Segal, 549 F.2d at 1301. Although we have repeatedly applied the statute to bar concurrent federal and state sentences by mandating that federal sentences must be served in federal institutions, no corresponding prohibition applies to consecutive sentencing. In fact, the holding in Segal itself actually affirmed a consecutive sentence similar to that imposed here. Segal, 549 F.2d at 1301.

Terrovona’s reliance on Myers is similarly unfounded. There, we permitted a defendant serving a state sentence to invalidate his guilty plea because he was not informed that his federal sentence must run consecutively under 18 U.S.C.- § 3568. Myers, 451 F.2d at 404. Both Segal and Myers implicitly acknowledge that the practical effect of § 3568 is to mandate consecutive sentencing in most cases.

Williams is the only case cited in Terro-vona which actually addresses the issue of whether judges may order consecutive sentences. However, it focused on whether the consecutive federal sentence ordered after a retrial was unduly severe under North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). Williams, 651 F.2d at 646-48. There, we reversed the consecutive aspect of the sentence because it was improperly based on conduct which occurred before the initial sentencing, not because it was beyond the judge’s authority. Id. at 647-48. In a footnote, the panel speculated that the rule precluding federal judges from ordering concurrent sentences “would equally seem to preclude a district court from ordering” consecutive sentences. Id. at 647, n. 2. However, like Terrovona, Williams cited only the inapposite cases of Segal and Myers as authority for this proposition. Thus, on the issue of whether district judges have the authority to impose consecutive sentences, the Williams footnote was pure dicta.

Even on its own reasoning, then, Terro-vona seems incorrectly decided. The Ter-rovona panel erroneously relied on inappo-site caselaw and ignored the settled law of the circuit as represented by Thornton. The earlier case remains the law until overturned by an en banc panel. See Atonio v. Wards Cove Packing Co., 810 F.2d at 1478-79; Pratt v. McCarthy, 850 F.2d 590, 593 (9th Cir.1988); United States v. Mount, 438 F.2d 1072, 1074 (9th Cir.1970).

Finally, Congress has now codified the Thornton rule in the Comprehensive Crime Control Act of 1984, Pub.L. 98-473, Title II, c. II, § 212(a)(2), 98 Stat. 2000, and expressly granted judges authority to make these decisions. See 18 U.S.C. § 3584(a), which now provides in part:

If ... a term of imprisonment is imposed on a defendant who is already subject to an undischarged term of imprisonment, the terms may run concurrently or consecutively, ... Multiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concurrently.

Thus, there can be no question that Congress has expressly granted federal judges the discretion to impose a sentence concurrent to a state prison term. See also United States v. Wills, 881 F.2d 823, 825-26 (9th Cir.1989).

Although the new statute does not directly apply to sentences for crimes which, like Hardesty’s, were committed before November 1, 1987, its legislative history indicates that its intent was to codify preexisting law on consecutive sentencing and reverse the Ninth Circuit rule as to concurrent sentencing. The Senate Judiciary Committee Report which accompanied the original Act stated:

Existing law permits the imposition of either concurrent or consecutive sentences, but provides the courts with no statutory guidance in making the choice. Terms of imprisonment imposed at the same time are deemed to run concurrently rather than consecutively if the sentencing court has not specified otherwise. Exceedingly long consecutive terms commonly are avoided through the exercise of judicial restraint. A term of imprisonment imposed on a person already serving a prison term is ... usually served after the first sentence if that sentence involves imprisonment for a State or local offense.³¹⁰

If ... multiple terms of imprisonment are imposed at different times without the judge specifying whether they are to run concurrently or consecutively, they will run consecutively unless the statute specifies otherwise. This ... changes the law that now applies to a person sentenced for a Federal offense who is already serving a term of imprisonment for a State offense (some footnotes omitted).³¹⁴

S.Rep. No. 225, 98th Cong., 2d sess., reprinted in 1984 U.S.Code Cong. & Admin.News 3182, 3309-3310. Thus, Congress has now expressly adopted the broad discretion expressed in Thornton, while repealing the law upon which Terrovona indirectly relied. As we stated in Landreth, “in cases involving statutory interpretation where Congress has retroactively clarified the meaning of the statute at issue," a three judge panel may reexamine prior precedent to determine its continuing authority. Landreth v. Commissioner, 859 F.2d at 648.³

Given this Congressional recognition and codification of the Thornton rule, as well as the unanimity of our sister circuits, it is clear that the district court’s reliance on Thornton in 1984 was correct. This case does not merit en banc review. We affirm.

II. Presentence Report

Hardesty also argues that the district court abused its discretion in refusing to order an updated presentence report. He contends that Hardesty’s good behavior during the six years he spent in the state prison shows that his character has improved enough to render him deserving of probation rather than jail time. We review this issue for abuse of discretion, United States v. Meyers, 847 F.2d 1408, 1416 (9th Cir.1988), and hold that the district court’s decision was within his discretion.

Hardesty’s federal sentence was imposed in May 1984, while he was serving a state sentence imposed in 1983.⁴ He immediately filed a motion to reduce his federal sentence, which was denied. Near the end of his state incarceration, Hardesty filed the instant motion, asking that the federal sentence be reduced to time already served or suspended and replaced with probation.⁵ In May 1990, Hardesty completed his state sentence and was transferred to federal custody to begin serving his federal sentence.

In denying Hardesty’s motion for probation and refusing to order an updated pre-sentence report or reduce the sentence, the court stated:

I carefully reviewed the presentence report, which outlined the details of the underlying offense and defendant’s criminal history. Defendant once before requested that I reduce his sentence. In September, 1984, I denied that request because I concluded that ‘the sentence which defendant received was and continues to be an appropriate one.’ I have not changed my mind.

Hardesty argues that the court’s failure to order an updated presentence report merits reversal under United States v. Lopez-Gonzales, 688 F.2d 1275 (9th Cir.1982). There, we vacated a sentence which had been imposed pursuant to a mechanical sentencing policy, without giving any consideration to the defendant’s individual circumstances. Id. at 1277. We explained that “[pjunishment should fit the offender and not merely the crime. The sentencing judge is required to consider all mitigating and aggravating circumstances involved.” Id.

Here, the judge did exactly that. In imposing the original sentence, he carefully considered all relevant information, including the presentence report. He was aware of Hardesty’s incarceration in a state facility and of his initial steps toward rehabilitation. Furthermore, in denying Hardesty’s 1990 motion for a probationary sentence, the court carefully reviewed the facts of the case as presented in the original pre-sentence report. Attached to the motion were a number of letters from family, friends and former counsel attesting to Hardesty’s character, behavior, and rehabilitative progress in state prison.

Based on this record, the court did not abuse its discretion in declining to order an updated presentence report before denying probation. Although we have not previously ruled on this issue, the Third Circuit recently rejected a similar argument and held that a five-year-old presentence report constituted “information sufficient to enable the meaningful exercise of sentencing authority” as required by Fed.R.Crim.P. 32(c)(1). United States v. Fernandez, 916 F.2d 125, 129 (3d Cir.1990) (quoting Rule), cert. denied, — U.S. -, 111 S.Ct. 2249, 114 L.Ed.2d 490 (1991).⁶ Here, as in Fernandez, the original presentence report contained sufficient relevant information to satisfy Rule 32. The record indicates that the district court sufficiently considered Hardesty’s individualized characteristics, including the years spent in state prison. The court’s decision to proceed without an updated presentence report was not an abuse of discretion.

CONCLUSION

The district court’s orders imposing a consecutive sentence and denying probation are AFFIRMED.

1 . Although this rule was amended in 1987 to conform to the Sentencing Guidelines, it still applies to defendant’s case because his criminal conduct occurred prior to November 1, 1987, and there is no time limit for requesting correction of an illegal sentence. See United States v. Jordan, 884 F.2d 1297, 1298 n. 1 (9th Cir.1989).

2 . The sentence of imprisonment of any person convicted of an offense shall commence to run from the date on which such person is received at the penitentiary ... for service of such sentence_ No sentence shall prescribe any other method of computing the term. Former 18 U.S.C. § 3568, repealed by Comprehensive Crime Control Act of 1984, Pub.L. 98-473, Title II, c. II, § 212(a)(2), 98 Stat.1987, effective Nov. 1, 1987.

310 ... Some courts have held that the Federal courts do not have the authority to make a Federal sentence concurrent with a State sentence already being served since 18 U.S.C. 3568 specifies that the Federal term commences when the defendant is received by Federal authorities. See, e.g., United States v. Segal, 549 F.2d 1293, 1301 (9th Cir.1977).

314 Thus, it is intended that this provision be construed contrary to the holding in United States v. Segal, supra note 310.

3 . In Landreth, we also noted that the legislative history of the intervening statute made clear that Congress intended to overrule the legal authority upon which the earlier case relied. Id, The same is true for Terrovona, as explained above.

4 . He successfully appealed his original state sentence, which totalled forty years, and was resen-tenced to a ten year term. See State v. Hardesty, 695 P.2d 569 (Or.1985). At oral argument, his counsel explained that he was released after seven years for good behavior.

5 .Since Hardesty had not begun to serve his federal sentence at the time he requested probation, the district court retained authority to grant the relief requested. United States v. Karp, 764 F.2d 613, 615 (9th Cir.1985). However, the court had no duty to grant probation, since whether a defendant is "a worthy candidate for probation is a matter wholly within the competence of the trial court to decide.” Id.

6 . Cf. People v. Causey, 230 Cal.App.2d 576, 579, 41 Cal.Rptr. 116, 119 (1964) (in state system, statute mandates that presentence reports be updated upon application for probation).