United States of America, Plaintiff-appellee, v. Dorothy Jefferson, Defendant-appellant, 782 F.2d 697 (7th Cir. 1986)

On October 7, 1985 the Supreme Court vacated this court's decision in United States v. Jefferson, 760 F.2d 821 (7th Cir. 1985), and remanded the case to us for further consideration in light of one of its recent decisions. Jefferson v. United States, --- U.S. ----, 106 S. Ct. 41, 88 L. Ed. 2d 34 (1985). Thus, the question of the prison sentence Dorothy Jefferson must serve for her participation in an elaborate drug sales operation is before us for a third time. We remand to the district court with instructions to reinstate the sentence it originally imposed on the defendant in 1982.

In May 1982, Dorothy Jefferson was convicted in the Eastern District of Wisconsin of one count of participation in a continuing criminal enterprise, 21 U.S.C. § 848; one count of conspiracy to distribute controlled substances, 21 U.S.C. § 846; twenty-one counts of distribution of controlled substances, 21 U.S.C. § 841(a) (1); and two counts of use of a communications facility in the distribution of a controlled substance, 21 U.S.C. § 843(b). She was sentenced to a total of thirty years' imprisonment: ten years on the Sec. 848 conviction and five years on each of four of the Sec. 841(a) (1) convictions, to be served consecutively with each other and the Sec. 848 sentence. (Sentences of five years for the Sec. 846 conspiracy and three years for each of the remaining nineteen substantive counts ran concurrently with each other and the above sentences.)

Section 848 sentences are to be served without parole. 21 U.S.C. § 848(c). The four five-year sentences provided for parole eligibility after one-third of the sentence had been served. Thus, the total sentence package called for parole eligibility after sixteen years and eight months. The trial judge distributed the sentence in this way, instead of giving a thirty-year sentence under Sec. 848, because

Sec. 848 contains a no-parole provision, and he wanted to give the Department of Justice discretion to release the defendant after ten years if her health problems so required. He emphasized that this discretion was made purely out of concern for defendant's poor health, and that he strongly believed the defendant was a "very dangerous person" and should not "be returned to the community at any time when she's able to supervise any type of activity on anyone's part."

United States v. Jefferson, 714 F.2d 689, 707 n. 34 (7th Cir. 1983) (quoting Sentencing Transcript at 21).

On her initial appeal, Jefferson successfully challenged the four five-year sentences imposed under Sec. 841(a) (1) as violations of the Double Jeopardy Clause of the Fifth Amendment. A panel of this court held that Congress had not intended to allow cumulative sentencing both on the predicate offenses necessary to prove a continuing criminal enterprise (here, the four five-year sentences) and the Sec. 848 conviction itself.¹  The court then vacated the original sentence and remanded to the trial judge for resentencing. Jefferson, 714 F.2d at 707.

The trial judge, stating that he was basing the sentence on the same factors he had considered at the time of the original sentencing, increased Jefferson's sentence under Sec. 848 to thirty years and made all of the other sentences concurrent with that sentence. The total sentence was thus still thirty years, but under the new sentence Jefferson would not be eligible for parole.

Jefferson again appealed and a different panel of this court affirmed the new sentence. Although we agreed with Jefferson that the change in parole status did constitute an increased sentence, we held that in this case the resentencing did not violate the due process standards of North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969). Pearce establishes a prophylactic rule that a resentence following an appeal shall not be heavier than the original sentence lest judicial "vindictiveness" chill the right to appeal. We noted that "under the circumstances of this case, narrowly described, the possibility of vindictiveness that underlies the application of the Pearce rule is not present." United States v. Jefferson, 760 F.2d 821, 827 (7th Cir. 1985). Given the option of a thirty-year sentence without parole or a seventeen-year sentence without parole, the trial judge was allowed to give the sentence that most comported with his original sentencing scheme. Id. at 828.

Jefferson petitioned the Supreme Court for a writ of certiorari. The Supreme Court granted the writ, --- U.S. ----, 106 S. Ct. 41, 88 L. Ed. 2d 34 (1985), vacated the second panel opinion, and remanded the case to this court for further consideration in light of one of its recent decisions on Sec. 848 sentencing, Garrett v. United States, --- U.S. ----, 105 S. Ct. 2407, 85 L. Ed. 2d 764 (1985). Relying on the guidance provided in that opinion, we now conclude that cumulative sentencing for the Sec. 848 conviction and the substantive predicate offenses does not violate the Double Jeopardy Clause and we remand this case to the district court for resentencing consistent with this opinion.

"The Double Jeopardy Clause 'protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.' " Brown v. Ohio, 432 U.S. 161, 165, 97 S. Ct. 2221, 2225, 53 L. Ed. 2d 187 (1977) quoting North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 2076, 23 L. Ed. 2d 656 (1969) (footnotes omitted). Of these three protections, only the last is relevant here because Dorothy Jefferson was indicted, prosecuted and convicted for both the Sec. 848 offense and the four predicate Sec. 841(a) (1) offenses in the same proceedings.² 

The question of cumulative sentences for a single course of criminal conduct, imposed at the same proceeding, revolves around the legislature's intent in creating criminal offenses: are two separate offenses and two separate punishments intended? See Missouri v. Hunter, 459 U.S. 359, 366, 103 S. Ct. 673, 678, 74 L. Ed. 2d 535 (1983) (" [T]he Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended."); Brown v. Ohio, 432 U.S. at 165, 97 S. Ct. at 2225 (" [T]he role of the constitutional guarantee is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense."). In addressing this question, a court's "starting point must be the language of the statutes." Albernaz v. United States, 450 U.S. 333, 336, 101 S. Ct. 1137, 1141, 67 L. Ed. 2d 275 (1980). When a panel of this court heard Jefferson's initial appeal, it followed this approach and concluded that "Congress intended Sec. 848 to serve as a comprehensive and exclusive penalty structure for persons professionally involved in criminal drug enterprises." Jefferson, 714 F.2d at 703. Until recently, there has been a split of authority on this question. Compare United States v. Gomberg, 715 F.2d 843, 851 (3d Cir. 1983) (double jeopardy bars cumulative sentencing); United States v. Samuelson, 697 F.2d 255, 260 (8th Cir. 1983); United States v. Chagra, 669 F.2d 241, 261-62 (5th Cir.), cert. denied, 459 U.S. 846, 103 S. Ct. 102, 74 L. Ed. 2d 92 (1982), with United States v. Brantley, 733 F.2d 1429, 1436-37 (11th Cir. 1984) (sentencing under Sec. 848 and for a predicate offense not a double jeopardy violation); United States v. Mourad, 729 F.2d 195 (2d Cir. 1984).

The Supreme Court has recently had the opportunity to resolve this question. In Garrett v. United States, --- U.S. ----, 105 S. Ct. 2407, 85 L. Ed. 2d 764 (1985), the Court held that the "language, structure, and legislative history ... show in the plainest way that Congress intended ... [Sec. 848] to be a separate criminal offense which was punishable in addition to, and not as a substitute for, the predicate offenses." Id., 105 S. Ct. at 2412. The defendant in Garrett had argued, as the appellant here does, that the test of Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932), applied and would establish that each of the predicate offenses was the "same" as the Sec. 848 offense for double jeopardy purposes because the predicate offenses did not require proof of any fact not necessary to the Sec. 848 offense. The Garrett majority noted, however, that Blockburger is not a conclusive determinant of legislative intent but rather a canon of statutory construction and as such not controlling when the legislative intent is clear on the face of the statute and in the legislative history. Id. at 2412-13, citing Hunter, 459 U.S. at 368, 103 S. Ct. at 679; Albernaz, 450 U.S. at 340, 101 S. Ct. at 1143; Whalen v. United States, 445 U.S. 684, 691-92, 100 S. Ct. 1432, 1437-38, 63 L. Ed. 2d 715 (1980). Since the Court found the legislative intent behind Sec. 848 sufficiently clear, the double jeopardy analysis ended at that point.

This analysis applies equally to Dorothy Jefferson's case: under Garrett, the sentence originally imposed on Jefferson in 1982 fully comports with the requirements of the Double Jeopardy Clause. It follows that the original sentence should never have been set aside. Although we are not authorized to vacate United States v. Jefferson, 714 F.2d 689, supra, we conclude that that decision has been overruled by Garrett and no longer has force and effect. We therefore vacate the second sentence (thirty years without parole under Sec. 848) and remand this case to the district court with instructions to reinstate the sentence it originally imposed.³ 

VACATED AND REMANDED.