United States v. Terry Wayne Denson, Stephen Orlando and Joseph James Janish, in Re United States of America

603 F.2d 1143, 1979 U.S. App. LEXIS 11403

Opinions

ALVIN B. RUBIN, Circuit Judge:

A writ of mandamus is sought by the government to correct an allegedly illegal sentence for a criminal offense. The defendants were convicted on two counts, one of which prescribes “imprisonment for any term of years or for life.” The trial judge imposed a ten year sentence on this count, suspended its execution and placed the defendants on probation. A panel of this court concluded that the trial court exceeded its authority in suspending execution of the sentence and placing the defendants on probation; that the government may not challenge the legality of the sentence by direct appeal; and that only mandamus could provide a remedy. A majority of the panel also decided, however, that, mandamus being an extraordinary writ, the court was not duty-bound to issue it. Finding no compelling need for the exercise of its discretion, the divided panel declined to issue the writ.¹

En banc we differ only with panel’s final decision not to issue the writ: we hold that, when the writ of mandamus is sought from an appellate court to confine a trial court to a lawful exercise of its prescribed authority, the court should issue the writ almost as a matter of course. In all other respects we affirm and reinstate the panel decision based on the authorities cited and the reasons set forth in its opinion, Parts I and II, Subparts A and B.

I.

The facts are fully and clearly set forth in the panel opinion. We recite them again merely to make this decision self-contained.

A four-count indictment charged that the three defendants, while members of the Houston, Texas, Police Department and acting under the color of Texas law, conspired to injure and intimidate Joe Luna Torres, Jr., and that the conspiracy resulted in his death, in violation of 18 U.S.C. § 241 (Count I); struck and assaulted Torres (Count II); pushed him into the bayou or aided and abetted that offense (Count III); all of which denied Torres his constitutional right not to be deprived of liberty without due process of law; and that they conspired to prevent another person from communicating information about these violations of federal law to an agent of the Federal Bureau of Investigation (Count IV). The defendants allegedly struck Torres while he was handcuffed, injuring him so badly that, when they arrived with their prisoner at the Houston city jail, the jailer refused to accept Torres because of his injuries, and, thereafter, in pursuance of the conspiracy, defendant Denson pushed Torres into a bayou where he drowned.

After a fifteen day trial, on February 8, 1978, the jury found all of the defendants guilty on Counts I and II and not guilty on the remaining counts. Forty-eight days later the court sentenced each defendant alike: on Count I, ten years imprisonment with execution of the sentence suspended; each defendant was placed on supervised probation for five years. On Count II the sentence was imprisonment for one year. The sentences were to be served consecutively.

There is no issue about the validity of the sentence on Count II. However, the government correctly contended, as the panel held, that under 18 U.S.C. § 3651 a defendant may be placed on probation only when he has been convicted of an offense not punishable by death or life imprisonment. Although the defendants were sentenced only to 10 years on Count I, 18 U.S.C. § 241 provides for a maximum sentence of life imprisonment for conspiracy to violate constitutional rights resulting in death. The district court, therefore, exceeded its authority in suspending execution of the sentence on Count I and in placing the defendants on probation.

II.

Countless expressions can be found in the jurisprudence to support the black-letter proposition that mandamus is an extraordinary remedy for extraordinary causes. See, e. g., Will v. United States, 1967, 389 U.S. 90, 95, 88 S.Ct. 269, 273, 19 L.Ed.2d 305; Platt v. Minnesota Mining & Mfg. Co., 1964, 376 U.S. 240, 245, 84 S.Ct. 769, 772, 11 L.Ed.2d 674; Ex parte Fahey, 1947, 332 U.S. 258, 260, 67 S.Ct. 1558, 1559, 91 L.Ed. 2041; Sperry Rand Corp. v. Larson, 8 Cir. 1977, 554 F.2d 868, 872; Haneke v. Secretary of HEW, 1976, 175 U.S.App.D.C. 329, 334, 535 F.2d 1291, 1296; Aday v. United States District Court, 6 Cir. 1963, 318 F.2d 588, 591, cert. denied, 375 U.S. 832, 84 S.Ct. 78, 11 L.Ed.2d 63. Indeed, we have ourselves echoed what appears to be almost an aphorism. See, e. g., In re Estelle, 5 Cir. 1975, 516 F.2d 480, 483, cert. denied, 1976, 426 U.S. 925, 96 S.Ct. 2637, 49 L.Ed.2d 380; Carter v. Seamans, 5 Cir. 1969,411 F.2d 767, 773, cert. denied, 1970,397 U.S. 941, 90 S.Ct. 953, 25 L.Ed.2d 121; Belcher v. Grooms, 5 Cir. 1968, 406 F.2d 14,17; Miller v. Connally, 5 Cir. 1965, 354 F.2d 206, 208.

The writ of mandamus is an order directing a public official or public body to perform a duty exacted by law. It may be issued to compel compliance with a variety of legal duties by a host of officials and bodies. In this case the writ is sought from us as an appellate court for the purpose of confining a federal trial court to the exercise of its lawful authority. We agree with the panel that the correction of an illegal sentence is an extraordinary cause for which mandamus is available. However, examination of the authorities and careful consideration of the precise purpose for which the writ is here sought lead us to conclude that the panel assumed broader discretion than it actually had in deciding whether or not to issue the writ and that, whatever the ambit for judgment, the circumstances compelled issuance of the mandate.

The Supreme Court has repeatedly stated in general terms that issuance of a writ of mandamus lies in large part within the discretion of the court. See, e. g., Helstoski v. Meanor, 1979, - U.S. -, 99 S.Ct. 2445, 61 L.Ed.2d 30; Kerr v. United States District Court, 1976, 426 U.S. 394, 403, 96 S.Ct. 2119, 2124, 48 L.Ed.2d 725; Schlagenhauf v. Holder, 1964, 379 U.S. 104, 112 n.8, 85 S.Ct. 234, 239 n.8, 13 L.Ed.2d 152; Roche v. Evaporated Milk Ass’n, 1943, 319 U.S. 21, 25-26, 63 S.Ct. 938, 941, 87 L.Ed. 1185.

The scope of discretion is, however, circumscribed by the purpose for which the writ is sought. Under some circumstances the room for judgment is narrowly constrained. Fifty years ago in Delaware, Lackawanna & Western Railroad v. Rellstab, 1928, 276 U.S. 1, 48 S.Ct. 203, 72 L.Ed. 439, the Supreme Court was called upon to correct the action of a district court in setting aside a judgment in a civil action after the court’s term had ended. The court of appeals had refused to grant a writ of mandamus requiring the district court to reinstate the judgment. The Supreme Court held that the power of the district court to set aside its judgment ended with the term. It stated:

As the Court was without jurisdiction to vacate the judgment, mandamus is the appropriate remedy .

******

But it is said that the granting of the writ of mandamus is discretionary and it is implied that if we are of opinion that the Circuit Court of Appeals was mistaken in denying its power to grant the writ, that court still might deny it on the ground that injustice would be done if the judgment were allowed to stand. But neither Court would be warranted in declaring the judgment unjust after it had become unassailable . . . . [276 U.S. at 5, 48 S.Ct. at 203-04.]

The Court held that, “because the District Court had made an unwarranted attempt to set aside a judgment that it had no jurisdiction to touch,” “[i]t follows that the writ should issue.” 276 U.S. at 5, 48 S.Ct. at 204. Discretion might be inherent in the writ, but the circumstances made appellate action imperative.

Three decades later, in Beacon Theatres, Inc. v. Westover, 1959, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988, the writ was issued, without discussion of discretion, to protect a litigant’s right to a jury trial. Mr. Justice Stewart, dissenting, together with Justices Harlan and Whittaker, thought that issuance of the writ was improper under the circumstances of the case, but agreed with what they considered the majority to hold: “There can be no doubt that a litigant is entitled to a writ of mandamus to protect a clear constitutional or statutory right to a jury trial.” (Emphasis added.) 359 U.S. at 511, 79 S.Ct. at 957.

In many similar instances the writ has been issued to exact a trial court’s performance of its duty with little or no discussion of discretion or judgment or balancing of factors. E. g., In re Simons, 1918, 247 U.S. 231, 38 S.Ct. 497, 62 L.Ed. 1094; Estate of Whitlock v. Commissioner, 10 Cir. 1976, 547 F.2d 506, 510, stay denied, 1977, 429 U.S. 1069, 97 S.Ct. 803, 50 L.Ed.2d 787, cert. denied, 1977, 430 U.S. 916, 97 S.Ct. 1329, 51 L.Ed.2d 594; Hartland v. Alaska Airlines, 9 Cir. 1976, 544 F.2d 992, 1001-02; In re Rodgers, 4 Cir. 1976, 537 F.2d 1196; Schmidt v. Fuller Brush Co., 8 Cir. 1975, 527 F.2d 532; ACF Industries, Inc. v. Guinn, 5 Cir. 1967, 384 F.2d 15, cert. denied, 1968, 390 U.S. 949, 88 S.Ct. 1039, 19 L.Ed.2d 1140; United States v. Nebbia, 2 Cir. 1966, 357 F.2d 303. In such cases the appellate court is not merely correcting an evident error; it is also performing its duty to supervise the actions of a lower, court. See La Buy v. Howes Leather Co., 1957, 352 U.S. 249, 259-60, 77 S.Ct. 309, 315, 1 L.Ed.2d 290.

Absent the availability of mandamus, the limitation imposed by congress on the sentencing latitude accorded the trial court would go unheeded. The assumption of broad discretion by an appellate court in deciding whether or not to issue mandamus would be almost equivalent to granting the trial court the statutory authority denied it by congress. While relatively few cases have considered the problem in terms of principle, the Supreme Court and other appellate courts have responded to the application for the writ in such circumstances almost as if the applicant had a right to its issuance.

The imposition of a sentence that is illegal is a manifest transgression. That an appellate court has the duty, with minimal margin for judgment, to correct an illegal sentence has been evident since the decision in Ex parte United States, 1916, 242 U.S. 27, 37 S.Ct. 72, 61 L.Ed. 129; there mandamus issued to set aside an unauthorized order designed to suspend permanently execution of a sentence. This use of mandamus was expressly approved in Will v. United States, supra, as an example of a situation “where the court overreached its judicial power to deny the Government the rightful fruits of a valid conviction.” 389 U.S. at 97-98, 88 S.Ct. at 275.

These cases indicate that, if a district court exceeds the scope of its judicial authority, the aggrieved party should be granted the writ almost as a matter of right.² Consequently petitions to correct illegal sentences by mandamus have routinely been granted. United States v. Jackson, 2 Cir. 1977, 550 F.2d 830; United States v. Norton, 5 Cir. 1976, 539 F.2d 1082, cert. denied, 1977, 429 U.S. 1103, 97 S.Ct. 1129, 51 L.Ed.2d 553; United States v. United States District Court, 9 Cir. 1975, 509 F.2d 1352, cert. denied, 421 U.S. 962, 95 S.Ct. 1949, 44 L.Ed.2d 448; United States v. Regan, 8 Cir. 1974, 503 F.2d 234, cert. denied, 1975, 420 U.S. 1006, 95 S.Ct. 1449, 43 L.Ed.2d 764; United States v. Mehrtens, 5 Cir. 1974, 494 F.2d 1172, cert. denied, 419 U.S. 900, 95 S.Ct. 182, 42 L.Ed.2d 145; United States v. McGarr, 7 Cir. 1972, 461 F.2d 1; United States v. Gibbs, 9 Cir. 1960, 285 F.2d 225; United States v. Lane, 9 Cir. 1960, 284 F.2d 935. Indeed, in United States v. Pregerson, 9 Cir. 1971, 448 F.2d 404, 406, the Ninth Circuit explicitly stated that it had no alternative but to issue the writ of mandamus where a district court had rendered a sentence that was beyond the scope of its authority. As in each of these prior cases presenting a similar petition,³ we here find no compelling justification for exercising such discretion as we have to deny the writ of mandamus.

III.

Even were we not constrained by the narrow scope of discretion dictated by precedent, we would find no cause to deny the writ. Those “compelling” reasons suggested by the panel majority fail to persuade a majority of the court en banc. The panel first notes that the Government cannot appeal from these sentences, and should not be allowed to use mandamus as a substitute for appeal. As pointed out by Judge Goldberg in dissent, 588 F.2d at 1133 n. 1, the fact that the Government cannot obtain direct review of the sentence is not a justification for denying mandamus. Mandamus is available only when other remedies are lacking, and the writ has been issued without question to correct an illegal sentence.

The proposition that resentencing “would be somewhat antithetical to the notions of finality inherent” in the double jeopardy clause, 588 F.2d at 1129, is not tenable. Federal courts have uniformly held that resentencing to correct an illegal sentence does not implicate double jeopardy rights. E. g., Bozza v. United States, 1947, 330 U.S. 160, 166-67, 67 S.Ct. 645, 648-49, 91 L.Ed. 818; Llerena v. United States, 5 Cir. 1975, 508 F.2d 78; Caille v. United States, 5 Cir. 1973, 487 F.2d 614, 615; United States v. Thomas, E.D.N.Y.1972, 356 F.Supp. 173, 174, aff’d, 2 Cir. 1973, 474 F.2d 1336.

[II, 12] While the sentencing judge has great discretion in imposing a sentence, that latitude is permissible only within the bounds set by statute. When, as here, he goes beyond those limits, he has exceeded the utmost reach of discretion, and it becomes our duty not to set the sentence but to order him to remain within the perimeter fixed by the legislature.

We do not perceive that granting the petition would work a substantially greater hardship on the defendants than would have been exacted by a lawful sentence imposed initially. The mere fact that the defendants have psychologically prepared themselves for a total of one year’s incarceration and may, as a result of our action, have their expectations frustrated does not compel a different result. The trial judge may take into account any difficulties caused by resentencing when he imposes a new and legal sentence just as he may consider any other appropriate factors whether they militate toward lenity or severity.

Concern about the possibility that upon resentencing the district court “could simply sentence these Defendants to one year’s imprisonment on Count One to run concurrently with a one year’s sentence on Count Two,” thus rendering issuance of a writ “a futile gesture,” 588 F.2d at 1131, is in our opinion improper. Federal appellate courts lack the power either to impose or to review sentences. See, e. g., United States v. Read, 9 Cir. 1976, 534 F.2d 858, 859; Zaffarano v. Blackwell, 5 Cir. 1967, 383 F.2d 719, 721; United States v. Martell, 4 Cir. 1964, 335 F.2d 764, 767-68; Jones v. United States, 1963, 117 U.S.App.D.C. 169, 171-72, 327 F.2d 867, 869-70; United States v. Rosenberg, 2 Cir. 1952, 195 F.2d 583, 604-07, cert. denied, 344 U.S. 838, 73 S.Ct. 20, 97 L.Ed. 652. See generally ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Appellate Review of Sentences (Approved Draft, 1968).

In vacating the illegal sentences, we cannot command any specific corrective. It is not futile to direct that a court act in accordance with law when the objective is neither a more nor a less severe sentence but merely one that complies with the appropriate statute. It is not the result we command but proper process. Speculation about what a federal judge who by statute is granted the sole power to impose a sentence will do in pursuance of his constitutional duty — and in accordance with the same oath we have ourselves taken — is inappropriate, for it would not only involve conjecture but it would threaten arrogation of the very sentencing review authority that Congress has denied federal appellate courts. The district judge will, we are confident, perform his duty. It is unseemly for us either to assume that he will take a particular course or to suggest what he should do so long as he reaches his decision in accordance with the controlling statute.

The clerk shall issue a writ of mandamus vacating the sentences imposed and commanding the district court to resentence the defendants in accordance with law on their convictions of the charges in Count I of the indictment.

APPEAL DISMISSED; WRIT OF MANDAMUS TO ISSUE.

1

. 5th Cir. 1979, 588 F.2d 1112. Judge Goldberg, while concurring in the majority’s conclusions on the illegality of the sentence, the nonavailability of appeal, and the propriety of seeking mandamus, dissented from the refusal to issue the writ, stating, “Our duty is only to issue the writ of mandamus where a statutorily illegal sentence was imposed. Such a sentence has been imposed here . . . 588 F.2d at 1133.

2

. It is fundamental that in such cases a court will not issue a writ of mandamus unless no other remedy is available. The lack of a remedy by appeal or in some other fashion is, however, a prerequisite to its issuance, not a factor to be weighed in determining whether or not, once it is shown that there is no other remedy, the writ should be issued. Moreover, the writ will not issue to correct a duty that is to any degree debatable: the trial court must be acting beyond its jurisdiction or in a fashion about which discretion is denied it. See, e. g., Kerr v. United States District Court, 1976, 426 U.S. 394, 96 S.Ct. 2119, 48 L.Ed.2d 725; Trinity Memorial Hospital of Cudahy, Inc. v. Associated Hospital Service, Inc., 7 Cir. 1977, 570 F.2d 660, 666 n.9; Carter v. Seamans, 5 Cir. 1969, 411 F.2d 767, 773, cert. denied, 1970, 397 U.S. 941, 90 S.Ct. 953, 25 L.Ed.2d 121.

3

. In the only cases we have found in which a writ was denied to correct an allegedly illegal sentence, the court refused to entertain the petition because of the government’s laches, expressly refraining from deciding whether the challenged sentences were within the trial court’s power to assess. United States v. Olds, 3 Cir. 1970, 426 F.2d 562; United States v. Carter, 9 Cir. 1959, 270 F.2d 521.