United States v. Tommy Lee Whitley

759 F.2d 327, 1985 U.S. App. LEXIS 30300

• Court: Court of Appeals for the Fourth Circuit
• Decided: March 29, 1985
• Docket: 83-5093
• Status: Published

Opinions

BUTZNER, Senior Circuit Judge:

Tommy Lee Whitley appeals the judgment sentencing him to 50 years imprisonment entered upon his conviction for bank robbery, 18 U.S.C. § 2113(a), (b), (d), and (e).¹ Whitley contends that his sentence improperly exceeded a 20-year sentence imposed after an earlier plea-bargained conviction under § 2113(d) that he successfully attacked on appeal.

The critical question raised by Whitley’s assignment of error is whether § 2113 creates a single offense with different penalties for aggravating circumstances as set forth in each subsection. If the statute defines a single offense, the judgment imposing a greater sentence on retrial must be reversed. In contrast, if the subsections of § 2113 create greater and lesser included offenses, Whitley’s retrial involved a different crime and the judgment must be affirmed.

The en banc court, overruling circuit precedent to the contrary, holds that § 2113 creates greater and lesser included offenses. Consequently, when Whitley was convicted of violating subsection (e), the eourt could impose a greater sentence than he previously received on his plea of guilty to the lesser included offense charged in subsection (d). Finding no merit in Whitley’s other assignment of error, we affirm.²

While robbing a bank, Whitley grabbed a teller around the neck and held a gun to her head. After obtaining money, he left with his hostage. Outside, he released her and fled.

A grand jury returned a four-count indictment charging Whitley with violations of 18 U.S.C. § 2113(a), (b), (d), and (e). Whitley pled guilty to the count that charged § 2113(d) in exchange for dismissal of the three remaining counts. The district court, Judge Woodrow W. Jones presiding, accepted the plea and heard a full account of the robbery, including Whitley’s seizure of the teller. The court sentenced Whitley to 25 years’ confinement. On Whitley’s motion, the court later reduced the sentence to 20 years. Whitley then filed a motion to vacate the judgment pursuant to 28 U.S.C. § 2255, claiming ineffective assistance of counsel. The district court dismissed the motion, but upon remand from this court,³ it vacated the judgment.

Whitley was tried on the original indictment before a jury, Judge Robert D. Potter presiding, and was found guilty on each of the four counts. The district court merged the counts and imposed a 50-year sentence.

II

Relying on North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), Whitley maintains that the imposition of a 50-year sentence upon retrial, after he had been sentenced to only 20 years for the same offense on his original plea of guilty, violates the due process clause. In Pearce, the Court held:

Due process of law ... requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial. And since the fear of such vindictiveness may unconstitutionally deter a defendant’s exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge.

395 U.S. at 725, 89 S.Ct. at 2080. The Court fashioned the following prophylactic rule:

[T]he reasons for [imposing a harsher sentence upon a defendant after retrial] must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal.⁴

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

In a companion case, Simpson v. Rice, 395 U.S. 711, 714, 89 S.Ct. 2072, 2074, 23 L.Ed.2d 656 (1969), the Court applied the Pearce rule to vacate an increased sentence imposed on retrial after a plea of guilty was set aside. Although members of the Court differ in their interpretation of Pearce, a majority subscribe to the view that “[t]he Pearce presumption is not simply concerned with actual vindictiveness, but also was intended to protect against a reasonable apprehension of vindictiveness that could deter a defendant from appealing a first conviction.” Wasman v. United States, — U.S.-, 104 S.Ct. 3217, 3225, 82 L.Ed.2d 424 (1984) (Powell, J., concurring).

The record discloses that the trial court, aware of Pearce, was not motivated by vindictiveness.⁵ But this does not put to rest the second concern of Pearce — a prisoner’s apprehension that vindictiveness will lead to increased punishment for the same offense after a successful appeal. Thus, if Whitley’s first and second convictions are for the same crime, Pearce bars the increased sentence because there was no intervening conduct or event to sustain the increase. See United States v. Hawthorne, 532 F.2d 318, 322-25 (3d Cir.1976). For this reason we must re-examine the statute to determine whether § 2113(d) is a lesser included offense of § 2113(e) or instead whether § 2113(d) and (e) are penalty provisions for the single offense of bank robbery.

Ill

Our interpretation of § 2113 has not been altogether consistent. In Walters v. Harris, 460 F.2d 988, 994 (4th Cir.1972), we said:

It was not the intent of Congress by the various sections of 18 U.S.C.A. § 2113 to create a number of distinct crimes for a single bank robbery____ Rather the various sections ‘create different maximum punishments for a single offense depending on whether aggravating circumstances exist’ ...

This pronouncement was unnecessary. On a plea of guilty to a two-count indictment, the district court imposed two 20-year concurrent sentences. On appeal, we held that the defendant could be sentenced on only one count. The same result could have been reached by considering subsection (a) a lesser included offense of subsection (d) and imposing a sentence pursuant to subsection (d).

In Crawford v. United States, 519 F.2d 347, 351-52 (4th Cir.1975), we held that, depending on the circumstances, violations of subsections (d) and (e) might or might not create separate offenses. We found that the kidnapping was separate from the bank robbery and upheld multiple sentences for violations of both (d) and (e). But the factual distinctions to determine which meaning of § 2113 is applicable can be avoided by considering subsection (d) a lesser included offense of subsection (e). Since subsection (e) authorizes a sentence up to life imprisonment, there is no practical need for consecutive sentences.

We find guidance in United States v. Gaddis, 424 U.S. 544, 96 S.Ct. 1023, 47 L.Ed.2d 222 (1976), which was decided after both Walters and Crawford. In Gaddis, the Court distinguished subsection (c) from subsections (a), (b), and (d) in these terms: “Receipt or possession of the proceeds of a bank robbery in violation of § 2113(c) is simply not a lesser included offense within the total framework of the bank robbery provisions of § 2113.” 424 U.S. at 548, 96 S.Ct. at 1026.

Prince v. United States, 352 U.S. 322, 77 5. Ct. 403,1 L.Ed.2d 370 (1957), rejected the government’s argument that each subsection of § 2113 is an independent crime for which consecutive sentences can be imposed. In considering the relationship between subsections (a) and (d), the Court stated: “It was manifestly the purpose of Congress to establish lesser offenses.” 352 U.S. at 327, 77 S.Ct. at 406.

Interpreting § 2113(a), (b), (d), and (e) as creating greater and lesser included offenses is consistent with the general principies relating to lesser included offenses. One commentator has explained:

[A]n offense is necessarily included in the offense charged if the elements of the lesser offense are fewer in number than the elements of the charged offense, and if the two offenses contain common elements so that the greater offense cannot be committed without also committing the lesser one.

2 Wharton’s Criminal Procedure 339-40 (C. Torcía 12th ed. 1975).

We are persuaded, therefore, that § 2113(d) creates a lesser included offense of the crime defined in § 2113(e). These subsections do not simply provide enhanced punishment for a single offense of bank robbery. To the extent that we held to the contrary in Crawford v. United States, 519 F.2d 347 (4th Cir.1975), and Walters v. Harris, 460 F.2d 988 (4th Cir.1972), we overrule them. We also recognize that we may now disagree with several circuits on this point.⁶

IV

Whitley pled guilty to armed robbery, not to the greater crime of kidnapping in the commission of an armed robbery. When he subsequently was found guilty of the greater crime, the district court explained why it was imposing a 50-year sentence:

The crime with which you have been convicted is kidnapping, although that’s not exactly what the statute calls it, is to me one of the worst crimes that I have witnessed in a little over a year that I have been here. You took a young lady and you had, I guess, never seen her before, put a pistol to her temple. A trip on your part or anything, anybody opened the door behind you, could have caused you to kill that young lady or perhaps paralyze her for life. That to me is completely inexcusable, particularly whenever you did it just to try to get the money. Armed bank robbery, none of them reached the height, I guess you might say, of complete disregard of human life of the person — several persons, for that matter. There were several people in the bank, but for a person who just happened to be in the wrong place at the wrong time. You did it, according to the jury’s verdict, and you did it intentionally and willfully. Therefore I do not feel that I can in any way consider any sentence which is not somewhat commensurate with the crime.4 **⁷

Because Whitley’s original plea was to a lesser included offense and subsequently he was convicted of a greater offense, Pearce does not apply. The likelihood of either actual vindictiveness or apprehension of vindictiveness, the object of Pearce’s prophylactic rule, is minimal when the second sentence is imposed for an offense greater than that which was the basis of the original conviction. The complete explanation for the harsher penalty is obvious on the face of a judgment convicting the defendant of the greater crime. See United States ex rel. Williams v. McMann, 436 F.2d 103 (2d Cir.1970). Cf. United States v. Johnson, 537 F.2d 1170, 1174-75 (4th Cir.1976).

We cannot accept Whitley’s argument that a sentence in excess of 20 years is unconstitutional because the 20-year sentence and the 50-year sentence were for the same transaction. This argument is not supported by any authority. The same transaction or the same evidence is pertinent to aspects of the bar afforded by the double jeopardy clause, but it is not significant here. After a guilty plea has been set aside, neither retrial nor an increased sentence infringes the rights protected by the double jeopardy clause. North Carolina v. Pearce, 395 U.S. 711, 719-21, 89 S.Ct. 2072, 2077-78, 23 L.Ed.2d 656 (1969). By accepting the plea to a charge of armed robbery, the district court did not impliedly acquit Whitley of the crime of kidnapping while committing an armed robbery. United States v. Williams, 534 F.2d 119,120-22 (8th Cir.1976).

Whitley protests the prosecutor’s comments that questioned his motive in appealing his guilty plea. Although the prosecutor’s remarks were ill advised, there could be no apprehension of prosecutorial vindictiveness of the kind that prompted a prophylactic rule against substitution of charges in Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974). The prosecutor did not file a greater charge after Whitley successfully attacked his guilty plea. Because Whitley was tried on the original indictment, his right to due process was not infringed. See United States v. Barker, 681 F.2d 589, 592-93 (9th Cir.1982); United States v. Johnson, 537 F.2d 1170, 1175 (4th Cir. 1976).

Even though Whitley’s conduct was the subject of both his plea of guilty to a violation of subsection (d) and his conviction for violating subsection (e), the charges considered in the respective proceedings were different. The proceedings on the guilty plea to subsection (d) did not provide a forum for assessment of Whitley’s guilt and punishment under subsection (e) which, pursuant to the plea bargain, the government withdrew. Acceptance of the plea to the subsection (d) charge precluded the judge from acquitting, convicting, or sentencing Whitley under subsection (e). Not until Whitley was convicted of the crime defined in subsection (e) could the court give consideration to the full range of penalties Congress authorized for conduct more serious than that punishable under subsection (d). See Barker, 681 F.2d at 592.

We reject Whitley’s suggestion that the increased sentence violated the due process clause by engendering a reasonable perception of harsh treatment because he exercised his right to appeal his faulty plea to subsection (d). This argument is based on a misconception of Pearce. A defendant who attacks his plea to a lesser included offense knows that if he is successful he will be faced with trial of the greater offense charged in the indictment but withdrawn as a result of the plea bargain. In Santobello v. New York, 404 U.S. 257, 263 n. 2, 92 S.Ct. 495, 499 n. 2, 30 L.Ed.2d 427 (1971), the Court observed that a defendant who is allowed to withdraw his plea to a lesser included offense “will, of course, plead anew to the original charge____” Quite naturally, this is a cause for apprehension that may or may not deter a prisoner from attacking his plea of guilty to the lesser offense. But it is not the kind of apprehension that gives rise to a violation of the due process clause.

Explaining the rationale of Pearce, the Court emphasized that “the Due Process Clause is not offended by all possibilities of increased punishment upon retrial after appeal, but only those that pose a realistic likelihood of ‘vindictiveness.’ ” Blackledge v. Perry, 417 U.S. 21, 27, 94 S.Ct. 2098, 2102, 40 L.Ed.2d 628 (1974). The likelihood and the apprehension of vindictiveness are dispelled when a defendant is given an increased sentence because he has been convicted on retrial of a more serious crime than that for which he previously pled guilty. See United States ex rel. Williams v. McMann, 436 F.2d 103 (2d Cir.1970).

V

For reasons adequately stated in the panel opinion, United States v. Whitley, 734 F.2d 994, 998-99 (4th Cir.1984), we find no error in the denial of the motion to suppress.

AFFIRMED.

1 . For the purpose of this appeal, the subsections of 18 U.S.C. § 2113 and their maximum penalties may be summarized as follows: (a) bank robbery, 20 years; (b) bank theft, 10 years; (d) assault with dangerous weapon while committing any offense defined in (a) and (b), 25 years; (e) kidnapping while committing an offense defined in § 2113, life imprisonment. See Pope v. United States, 392 U.S. 651, 88 S.Ct. 2145, 20 L.Ed.2d 1317 (1968).

2 . The opinion of the panel vacating Whitley’s 50-year sentence is reported as United States v. Whitley, 734 F.2d 994 (4th Cir.1984).

3 . United States v. Whitley, 692 F.2d 754 (4th Cir.1982) (unpublished).

4 . Wasman v. United States, — U.S. -, 104 S.Ct. 3217, 82 L.Ed.2d 424 (1984), amplified Pearce by holding that conduct or events occurring after the original sentence may justify increased punishment.

5 . Judge Potter observed:

[A]ny sentence I give is not penalizing [Whitley] for having come back and had a trial. I agree with you that he had a constitutional right to do it, and I hold nothing against him and in no sense of the word do I plan to sentence this gentleman on the theory that he is taking advantage of the system or anything of that nature, so I just wanted the record to be completely clear on that. Any sentence I give is not for the purpose of vindictiveness or for the purpose of penalizing him for having exercised his constitutional right. That’s done every day, and I do not hold that against him.

6 . See, e.g., Grimes v. United States, 607 F.2d 6, 13 (2d Cir.1979); United States v. Rossi, 552 F.2d 381, 382 (1st Cir.1977); Eakes v. United States, 391 F.2d 287, 288 (5th Cir.1968).

7 . In view of the district court's explanation for the sentence and our interpretation of § 2113, it would have been preferable to have sentenced Whitley only for a violation of subsection (e), the greater offense, without merging the other three counts that charged lesser included offenses. Whitley has not questioned the judgment on this ground. In any event, reversal would not be required. Fed.R.Crim.P. 52(a).