United States v. Rosenstreich

204 F.2d 321

Opinions

FRANK, Circuit Judge.

It is well settled that, thanks to the double-jeopardy provision of the Fifth Amendment, a federal court may not increase (a) a sentence of imprisonment, once execution of the sentence has begun, or (b) a sentence to pay a fine, after the fine first imposed has been paid.¹ We think that, for this purpose at least, probation— which has been called an “authorized mode of mild and ambulatory punishment”²— should be deemed the equivalent of imprisonment. A probationary period starts when the judge imposes sentence.³ It is suggested that here it did not commence until the probation officer in New York was advised of the sentence; but assuming, arguendo, the cogency of this suggestion in appropriate circumstances, it has no relevance here since such advise had been given to the officer previous to July 8.

We think that the sentence imposed on June 30 must be considered a unit. Accordingly, it had been executed in part before July 8, and the judge’s action oh that date, by augmenting the fine, was beyond his lawful powers.

Reversed.

1 . Ex parte Lange, 18 Wall. 163, 173, 21 L.Ed. 872; In re Bradley, 318 U.S. 50, 63 S.Ct. 470, 87 L.Ed. 500. See also United States v. Benz, 282 U.S. 304, 306, 51 S.Ct. 113, 75 L.Ed. 354; De Maggio v. Coxe, 2 Cir., 70 F.2d 840; Rowley v. Welch, 72 App.D.C. 351, 114 F.2d 499, 501; Acme Poultry Corp. v. United States, 4 Cir., 146 F.2d 738, 739; cf. Frankel v. United States, 6 Cir., 131 F.2d 756, 758-759.

Decisions are not in point which hold that a sentence may be increased on the same day that the original sentence was imposed and while defendant was still in the courthouse; for, in such a situation, the execution had not started. See, e. g., Rowley v. Welch, 72 App.D.C. 351, 114 F.2d 499; Oxman v. United States, 8 Cir., 148 F.2d 750, 159 A.L.R. 155; De Maggio v. Coxe, 2 Cir., 70 F.2d 840.

Nor are cases in point which hold valid a sentence heavier than the original sentence where the latter was ruled to be invalid on defendant’s suit, Murphy v. Massachusetts, 177 U.S. 155, 20 S.Ct. 639, 44 L.Ed. 711, or where the original sentence was invalid because of the failure to impose the required minimum penalties, Bozza v. United States, 330 U.S. 160, 67 S.Ct. 645, 91 L.Ed. 818. Of course, reduction of a sentence partly executed is not invalid. United States v. Benz, 282 U.S. 304, 51 S.Ct. 113, 75 L.Ed. 354.

2 . Cooper v. United States, 5 Cir., 91 F.2d 195, 199; Nix v. United States, 5 Cir., 131 F.2d 857, 858; cf. Roberts v. United States, 320 U.S. 264, 64 S.Ct. 113, 88 L.Ed. 41.

3 . Sanford v. King, 5 Cir., 136 F.2d 106, 108.