Albert Edward Deutschmann, Appellant, v. United States of America, Appellee, 254 F.2d 487 (9th Cir. 1958)

Appellant was charged in a five count indictment with various violations of 21 U.S.C.A. § 174 — illegal trafficking in narcotics.¹  He pleaded guilty to counts 1 and 3 of the indictment. On June 17, 1957 appellant was sentenced to fifteen years imprisonment on count 1; and consecutive thereto five years probation on count 3; imposition of sentence on count 3 being suspended.²  Counts 2, 4 and 5 were dismissed. Appellant was committed to the custody of the Marshal to commence sentence and was held in the county jail awaiting transportation to a federal penitentiary.

On the next day, June 18, 1957 appellant was recalled to court, the original sentence as to count 3 vacated as illegal, and a new sentence imposed: fifteen years on each count to run consecutively. The illegality of the original sentence as to count 3 arose because 21 U.S.C.A. § 174, by incorporation of 26 U.S.C. § 7237(d), in its 1956 amendment, prohibits the court from suspending imposition of sentence or granting probation.³ 

Appellant prosecutes this appeal charging that the vacating and resentencing were illegal in that such procedure increased his punishment after he had already begun to serve his sentence, thereby violating the constitutional inhibitions against double jeopardy. The appeal is timely filed.

Appellant first asserts that it is unconstitutional to increase a sentence after the prisoner has begun serving it. This is of course correct. United States v. Benz, 1931, 282 U.S. 304, 51 S. Ct. 113, 75 L. Ed. 354. He then asserts that he began serving his sentence upon detention in the county jail awaiting further transportation to the selected penitentiary. 18 U.S.C. § 3568 supports this contention precisely in that it states a sentence shall run from the date the prisoner is so received and detained.⁴  Appellant assumes without discussion that the two sentences must be treated as one, and therefore when he entered the county jail he began serving a single "sentence" which thereafter could not be increased.

Recognizing that Fed.R.Crim.Proc. 35, 18 U.S.C., permits the court to correct an "illegal" sentence at any time, appellant seeks to prove that this rule applies only to judgments which are void and not merely those that are erroneous. In his reply brief, appellant contends that a sentence is void, and therefore subject to correction, only where it is in excess of the statutory maximum. Since the subject matter and parties were properly before the court here, appellant concludes that the sentence on June 17, 1957 was merely erroneous, not illegal or void, and hence could not be corrected.

The government argues that if the sentence is to be considered as one entire sentence for the purposes of serving it, then the entire sentence was illegal and subject to correction under Rule 35. If, on the other hand, the sentences are considered severable, i. e., that appellant was twice sentenced, then appellant never began serving the second sentence, and there could be no double jeopardy in changing the second sentence to comply with the law prohibiting the unlawful probation and suspension of imposition of sentence.

Appellant makes no case on either theory. The cases he cites are those in which a different punishment was imposed after service of sentence had begun (United States v. Murray, 1928, 275 U.S. 347, 48 S. Ct. 146, 72 L. Ed. 309) where an attempt was made to increase the penalty after some service of the lesser sentence (United States v. Benz, supra; United States v. Rosenstreich, 2 Cir., 1953, 204 F.2d 321; Crowe v. United States, 6 Cir., 1952, 200 F.2d 526), and those in which an "either or" punishment was authorized and the court imposed both after first imposing only one. Ex parte Lange, 1873, 18 Wall. 163, 85 U.S. 163, 21 L. Ed. 872.

The Supreme Court considered precisely the question here before us in Bozza v. United States, 1947, 330 U.S. 160, 67 S. Ct. 645, 91 L. Ed. 818. There the crime required imprisonment and fine; the defendant was sentenced to imprisonment only. After five hours detention in the federal jail, defendant was returned to court and fined, in addition to his imprisonment. To the claim that increasing the sentence after service had begun constituted double jeopardy, the Supreme Court said:

"In this case the court only `set aside what it had no authority to do and substitute [d] directions required by law to be done upon the conviction of the offender.'" Id., 330 U.S. at page 167, 67 S. Ct. at page 649.

Appellant seeks here to distinguish the Bozza case on two grounds: (a) if the criticized procedure was void, a total release of the prisoner would be effected (which the Supreme Court desired to avoid); (b) the court did not consider that the five hour delay constituted entry of service upon the sentence first imposed. The Bozza case cannot be so distinguished. After referring to the cases where a sentence had been increased after service had begun, the court said:

"* * * the fact that petitioner had been twice before the judge for sentencing and in a federal place of detention during the five hour interim cannot be said to be double jeopardy as we have heretofore considered it. * * * If this inadvertent error cannot be corrected in the manner used here by the trial court, no valid and enforceable sentence can be imposed at all."⁵ 

And so in this case. If the second part of the sentence of June 17, 1957 is not subject to correction as was done here, then appellant will never suffer punishment for conviction on his plea of guilty to count 3, for at the end of fifteen years the probation will be unlawful and appellant will be free. Thus the court below only set aside what it had no authority to order, and substituted the sentence required by law.

It is well established that where there are consecutive sentences, they are served in the same order in which they appear in the indictment.⁶  Thus, when appellant entered the county jail, he began serving the sentence he received under count 1, and any increase in the time under count 3 was before service of the sentence rendered on that count had begun.

The judgment of the District Court is affirmed.