United States of America, Plaintiff-appellee, v. Garland Claude Cochran, Defendant-appellant, 883 F.2d 1012 (11th Cir. 1989)

If, at the defendant's request, a district judge vacates all of the defendant's concurrent sentences because they are illegal, is the judge obligated to reimpose concurrent terms on resentencing? That is the central question presented in this case, and we answer it in the negative.

In 1983, a jury convicted Garland Claude Cochran of committing four federal narcotics offenses in the Northern District of Georgia.¹  Ordinarily, the maximum penalty for these offenses is fifteen years incarceration, but because of a prior marijuana conviction, the district court enhanced Cochran's sentences to 30 years on each count to be served concurrently and to be followed by a special parole term of six years.²  However, in June, 1988, after his convictions and sentences had been affirmed on appeal, Cochran filed a motion to vacate all of his sentences pursuant to Federal Rule of Criminal Procedure 35(a).³  He alleged that his sentences were illegal because the United States had not complied with 21 U.S.C.A. Sec. 851 (West 1981), which sets forth procedural requirements for the enhancement of sentences. See United States v. Olson, 716 F.2d 850, 853 (11th Cir. 1983) (failure to satisfy section 851 deprives district court of authority to enhance defendant's sentences). The government conceded the illegality of Cochran's enhanced sentences, and the district court vacated them. The court replaced Cochran's 30 year concurrent sentences with a package of unenhanced concurrent and consecutive sentences totaling 25 years plus a six year parole term.⁴ 

Cochran challenges the district court's second sentencing scheme in this appeal. He contends that his Rule 35(a) motion challenged only the illegal enhancements but not the concurrent service of each term. Consequently, the court was obligated to eliminate the fifteen year enhancements while leaving the concurrent service in place. Cochran thus urges that he should have received a maximum of fifteen years on each count to be served concurrently. In support of this contention, appellant relies on United States v. Henry, 709 F.2d 298 (5th Cir. 1983) (en banc), the Double Jeopardy Clause, and the Due Process Clause of the Fifth Amendment.⁵  We consider each argument in turn.

In United States v. Henry, a defendant, convicted and sentenced on three counts, challenged via Rule 35(a) the legality of one of his convictions. 709 F.2d at 301. The district court ultimately vacated the illegal conviction and sentence, and then modified the two remaining sentences, although neither was unlawful nor under collateral attack. The district court ordered, inter alia, that the two sentences, which ran concurrently with each other, should be served consecutively. The effect of the change was to lengthen the defendant's incarceration under the remaining counts in order to approximate the district court's original sentencing intent. Id. at 301-02. The Fifth Circuit reversed. The pertinent debate centered on whether an "illegal sentence," as set forth in Rule 35(a), defines the aggregate of prison terms imposed upon a defendant after multiple count convictions, or whether "illegal sentence" carries a narrower definition--that is, "the specific consequence of a specific violation of a specific federal statute." Id. at 310 (emphasis in original). Opting for the narrow definition, the plurality concluded that a district court can only correct the sentence on a specific count which is found to be illegal; the court must leave untouched sentences on counts which are neither unlawful nor challenged by the defendant. Id. at 317; Contra Id. at 333 (Gee, J., dissenting) (illegal sentence speaks of entire sentence comprising all counts). The plurality also opined, but did not hold, that increasing lawful sentences previously imposed might implicate double jeopardy since a defendant has a right to finality in a sentence once service has begun. Id. at 309-10. Finally, the plurality suggested that resentencing on unchallenged counts might raise due process problems under North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969). Id. at 315-16.

Applying Henry to this case, Cochran urges that if a judge is prohibited from modifying the sentence of a count which not challenged via Rule 35(a), then surely he is prohibited from modifying an unchallenged, legal aspect of an otherwise illegal sentence--in this case, the concurrent service. Henry simply does not reach that far, however. The Henry plurality expressly recognized that an illegal sentence on a particular count is a "nullity," Id. at 308, 317, and that the district court has the power, indeed the "duty," to vacate it. Id. This is precisely what the district court did here, except that all of Cochran's sentences were illegal. Nothing in Henry suggests that an illegal sentence must be broken down into various components such as concurrent service or enhancement. The rub in that case concerned the district court's power to amend sentences on counts which are neither illegal nor challenged by the defendant. That issue is not presented here since all of Cochran's sentences were unlawful. In fact, the Fifth Circuit has held that Henry is inapplicable to a case in which the district court vacates all of the defendant's sentences pursuant to Rule 35(a). See United States v. Crawford, 769 F.2d 253, 258 (5th Cir. 1985), cert. denied, 474 U.S. 1103, 106 S. Ct. 887, 88 L. Ed. 2d 922 (1986) ("Correction of a sentence imposed in an illegal manner does not violate double jeopardy even if the correction increases the punishment, and the fact that [the defendant] has commenced serving the sentence is irrelevant.") (brackets in original) (quoting United States v. Stevens, 548 F.2d 1360, 1362-63 (9th Cir.), cert. denied, 430 U.S. 975, 97 S. Ct. 1666, 52 L. Ed. 2d 369 (1977)). Thus we leave the resolution of the issues raised in Henry for another day.⁶ 

We next consider whether the Double Jeopardy Clause of the Fifth Amendment precluded the district court from imposing consecutive and concurrent sentences totaling twenty-five years. Cochran relies on United States v. Jones, 722 F.2d 632 (11th Cir. 1983). There, we found a violation of double jeopardy where the judge, sua sponte, increased a legal sentence after the defendant began serving it. We opined that the Double Jeopardy Clause protects a defendant's legitimate expectation that a lawful sentence previously imposed will not be increased thereafter. Id. at 638. Thus, absent statutory authority to modify a sentence or the defendant's deception of the sentencing authority, the judge may not augment a lawful sentence once service has begun. Id. at 638-39. Although conceding that the district court reduced his overall term of imprisonment by five years, appellant apparently contends that he had an expectation that the concurrent service of his original sentences would remain, since he neither challenged those aspects of his sentences nor were they found to be illegal. In so arguing, appellant essentially contends that he expected to receive unenhanced, concurrent fifteen year sentences (as opposed to a twenty five year term), and that expectation is protected by double jeopardy. We disagree.

The Double Jeopardy Clause affords the defendant three basic protections. The Clause protects against a second prosecution for the same offense after acquittal, against a second prosecution for the same offense after conviction, and against multiple punishments for the same offense. Jones v. Thomas, --- U.S. ----, 109 S. Ct. 2522, 2525, 105 L. Ed. 2d 322 (1989); North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 2076, 23 L. Ed. 2d 656 (1969). It is the multiple punishment prohibition which may be violated when a defendant's original sentence is increased in a second proceeding, as occurred in Jones. In such a circumstance, the double jeopardy inquiry turns on the extent and legitimacy of a defendant's "expectation of finality in the original sentence," United States v. DiFrancesco, 449 U.S. 117, 139, 101 S. Ct. 426, 438, 66 L. Ed. 2d 328 (1980). See Jones, 722 F.2d at 638; United States v. Fogel, 829 F.2d 77, 87 (D.C. Cir. 1987).⁷  The Constitution protects this expectation of finality in the length of a lawful sentence because " [t]he Double Jeopardy Clause is a statute of repose for sentences as well as for proceedings." Jones, 109 S. Ct. at 2531 (Scalia, J., dissenting). If this were not true, the prohibitions against successive prosecutions would be meaningless; "a court could achieve the same result as a second trial by simply resentencing a defendant after he has served all or part of an initial sentence." U.S. v. Fogel, 829 F.2d 77 at 88. (D.C. Cir. 1987).

Here, of course, the appellant's claim fails because, as he concedes, the district court reduced his overall sentence by five years, in contrast to the increase which occurred in Jones. Cochran suffered from no greater jeopardy on resentencing. Moreover, any expectation of finality in a sentence is wholly absent where, as here, the defendant requests that his prior sentences be nullified. The defendant has, by his own hand, defeated his expectation of finality, and "the Double Jeopardy Clause, which guards against Government oppression, does not relieve a defendant from the consequences of his voluntary choice." United States v. Scott, 437 U.S. 82, 99, 98 S. Ct. 2187, 2198, 57 L. Ed. 2d 65 (1978); cf. Jones, 722 F.2d at 635 (judge, as opposed to defendant, increased legitimate sentence sua sponte) ; Fogel, 829 F.2d at 89 (defendant retained expectation of finality because, inter alia, he did not challenge his original sentence).

For purposes of the Double Jeopardy Clause, Cochran's position was virtually identical to that of a defendant reconvicted following a successful appeal: The original sentence, like the prior conviction, has "at the defendant's behest, been wholly nullified and the slate wiped clean." Pearce, 395 U.S. at 721, 89 S. Ct. at 2078 (1969). Resentencing does not create multiple punishments for the same offense since the prior punishment is void, provided that the defendant receives credit for time served. Id. at 718-19, 89 S. Ct. at 2077.⁸  Here, assuming credit for time served, the slate was entirely wiped clean. We find no merit in Cochran's efforts to distinguish the enhanced portion of his sentences from the concurrent service in order to impose a fifteen year maximum on his new punishment. Once the court nullified the thirty year sentences, they were void in their entirety, including any enhancement and form of service. The district judge was free to reconstruct Cochran's punishment by imposing unenhanced consecutive and concurrent sentences which approximated his original sentencing intent of thirty years imprisonment. As the Supreme Court observed over forty years ago, " [t]he Constitution does not require that sentencing should be a game in which a wrong move by the judge means immunity for the prisoner." Bozza v. United States, 330 U.S. 160, 166-67, 67 S. Ct. 645, 648-49, 91 L. Ed. 818 (1947).

Resentencing may also implicate the Due Process Clause if, after the vacatur of a defendant's sentences, the district court imposes a harsher punishment. Pearce, 395 U.S. at 726, 89 S. Ct. at 2081. That prerequisite is obviously absent here since the district court reduced Cochran's overall term of incarceration.

In addition, Cochran contends that the district court erred in imposing separate sentences for his convictions of conspiracy to possess with intent to distribute cocaine (Count 7) and attempt to possess with intent to distribute cocaine (Count 8), both in violation of 21 U.S.C.A. Sec. 846. Appellant argues that both crimes require overt acts, and, since both counts arose from the same transaction, the court erred in imposing separate sentences. Appellant's contentions are without merit.

To establish a conspiracy, " [a]n overt act is not required, only proof that the defendant conspired to commit the prohibited offense." United States v. Sanchez, 722 F.2d 1501, 1505 (11th Cir.), cert. denied, 467 U.S. 1208, 104 S. Ct. 2396, 81 L. Ed. 2d 353 (1984); see also United States v. Boldin, 779 F.2d 618, 619 (11th Cir.), cert. denied, 475 U.S. 1048, 106 S. Ct. 1269, 89 L. Ed. 2d 577 (1986) (amending prior opinion to omit an overt act requirement from the elements of proof necessary for a conspiracy in violation of section 846). In contrast, an attempt requires "conduct which constitutes a substantial step toward the commission of the crime." United States v. Collins, 779 F.2d 1520, 1530 (11th Cir. 1986); United States v. Forbrich, 758 F.2d 555, 557 (11th Cir. 1985). Because each offense requires proof of different facts, see Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 182, 76 L. Ed. 306 (1932), we have held that prosecuting a defendant on attempt and conspiracy charges does not violate double jeopardy even though both offenses arose out of a single narcotics transaction. United States v. Anderson, 651 F.2d 375, 378-79 (5th Cir. Unit A 1981).⁹  There can be no double jeopardy bar, therefore, to punishing a defendant for both crimes, as occurred here.

For the foregoing reasons, we conclude that the district court resentenced the appellant properly. The judgment of the district court is AFFIRMED.