United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 02-1806
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United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Monroe Evans, also known as Ty, *
also known as Daddy, *
*
Defendant - Appellant. *
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Submitted: September 20, 2002
Filed: December 24, 2002
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Before HANSEN, Chief Judge, RICHARD S. ARNOLD and LOKEN, Circuit Judges.
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LOKEN, Circuit Judge.
A jury convicted Monroe Evans of three prostitution and Mann Act counts and
four money laundering counts. At sentencing, the district court departed upward and
sentenced Evans to 396 months in prison. On appeal, we affirmed the conviction and
the upward departure but remanded for resentencing because the sentences imposed
on two counts were based upon increases to the statutory maximums enacted after
Evans committed his offenses, which violated the Ex Post Facto Clause. United
States v. Evans, 272 F.3d 1069, 1090-92 (8th Cir. 2001), cert. denied, 122 S. Ct. 1638
(2002). On remand, the district court again imposed a 396-month sentence, offsetting
reduced sentences on those two counts with increased sentences on four other counts.
Evans appeals, arguing that the new sentence exceeded the district court’s jurisdiction
and violated his double jeopardy and due process rights. Reviewing these issues of
law de novo, we affirm.
I. The Sentences Imposed by the District Court.
The jury convicted Evans of the following offenses:
Count 17 -- knowingly transporting an individual in interstate commerce
with the intent that the individual engage in prostitution, 18 U.S.C.
§ 2421. This count carried a statutory maximum sentence of 60 months
when the offense was committed and 120 months at time of sentencing.
Count 18 -- knowingly persuading, inducing, or enticing an individual
to travel in interstate commerce to engage in prostitution, 18 U.S.C. §
2422(a). This count carried a statutory maximum sentence of 60 months
when the offense was committed and 120 months at time of sentencing.
Count 1 -- conspiracy to violate the Mann Act, 18 U.S.C. § 371. This
count carried a statutory maximum sentence of 60 months.
Counts 19 and 21 -- money laundering in violation of 18 U.S.C. §
1956(a)(1)(A)(i). These counts each carried a statutory maximum
sentence of 240 months.
Count 20 -- money laundering in violation of 18 U.S.C. §
1956(a)(1)(B)(i). This count carried a statutory maximum sentence of
240 months.
Count 44 -- conspiracy to launder money, 18 U.S.C. § 1956(h). This
count carried a statutory maximum sentence of 240 months.
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At the initial sentencing, the district court determined that the combined guidelines
sentencing range for these offenses is 235 to 293 months. The court granted the
government’s motion for an upward departure and sentenced Evans to 396 months
in prison. The court imposed seven consecutive sentences -- the statutory maximum
of 60 months on count 1, the erroneous statutory maximum of 120 months on counts
17 and 18, and only 24 consecutive months on each of counts 19-21 and 44, counts
for which the statutory maximum was 240 months. On remand, the district court
again determined that Evans’s total punishment should be 396 months in prison. It
reached that result by again imposing seven consecutive sentences -- 60 months on
count 1, as before; 60 months on counts 17 and 18, correcting the Ex Post Facto
Clause violation; and increased sentences of 54 months on each of the four money
laundering counts.
II. Consecutive and Concurrent Sentencing Under the Guidelines.
In 18 U.S.C. §§ 3553(a) and (b) and 3584, Congress granted district courts
broad discretion to impose consecutive or concurrent sentences, subject to the
provisions of the Sentencing Guidelines. The Guidelines provide that if the statutory
maximum sentence is less than the minimum of the applicable guideline range, the
statutory maximum “shall be the guideline sentence.” U.S.S.G. § 5G1.1(a). Section
5G1.2 then addresses how a defendant should be sentenced for a multi-count
conviction. Unless limited by the applicable statutory maximum, the sentence for
each count “shall be the total punishment.” § 5G1.2(b). If the highest applicable
statutory maximum “is adequate to achieve the total punishment,” the sentences on
all counts “shall run concurrently,” unless a statute, such as 18 U.S.C. § 924(a)(4),
prescribes a consecutive sentence. § 5G1.2(c). But if the highest statutory maximum
is less than the total punishment, as in this case, “then the sentence imposed on one
or more of the other counts shall run consecutively, but only to the extent necessary
to produce a combined sentence equal to the total punishment.” § 5G1.2(d); see
United States v. McLeod, 251 F.3d 78, 83 (2d Cir.), cert. denied, 122 S. Ct. 304
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(2001) (explaining the “correct method of imposing sentences on multiple counts”).
In United States v. Diaz, 296 F.3d 680, 684 (8th Cir.) (en banc), cert. denied, 123 S.
Ct. 43 (2002), we recently confirmed that Ҥ 5G1.2(d) mandates consecutive
sentences in those cases in which the total punishment exceeds the statutory
maximum for any one count.”
In this case, Evans’s total punishment of 396 months was greater than the
statutory maximum for any of the seven counts of conviction. Unfortunately, in
constructing its original sentence, the district court did not follow Part 5G of the
Guidelines. Had the district court applied Part 5G, it would have first imposed the
statutory maximum sentence on each count, because each was less than the total
punishment. Then, applying § 5G1.2(d), the court would have made 156 months of
the second 240-month maximum sentence consecutive to the first 240-month
maximum sentence, producing the 396-month total punishment. It would then have
made the other five maximum sentences concurrent with the sentence imposed on the
first two counts. Had the court constructed its sentence in this manner, we no doubt
would have affirmed the 396-month sentence but modified the judgment to correct
the error regarding the maximum sentences imposed on counts 17 and 18.1
On remand, the district court again failed to follow § 5G1.2(d), instead
constructing Evans’s new 396-month sentence with seven consecutive sentences.
1
We agree with the First Circuit that the term “total punishment” in § 5G1.2(d)
includes a lawful upward departure. United States v. Hernandez Coplin, 24 F.3d 312,
320 n.9 (1st Cir.), cert. denied, 513 U.S. 956 (1994). But see United States v.
Martinez, 274 F.3d 897, 903-04 (5th Cir. 2001). That means that § 5G1.2(d) governs
the manner in which Evans’s total sentence should be imposed. But even if
§ 5G1.2(d) does not govern the use of consecutive and concurrent sentences when the
total punishment includes an upward departure, the sentencing judge should still
apply the § 5G1.2(d) methodology in determining how to construct the total sentence
from the various counts of conviction. See 18 U.S.C. § 3553(b); United States v.
Terry, 142 F.3d 702, 707 (4th Cir. 1998), cert. denied, 528 U.S. 853 (1999).
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Because § 5G1.2(d) mandates the total sentence the district court imposed, the court’s
Guidelines error is harmless. The issue on appeal is whether, as Evans contends, this
harmless Guidelines error somehow combines with our prior remand order to produce
a reversible error.
III. The Court’s Jurisdiction To Resentence All Counts.
Evans argues that our remand order gave the district court no jurisdiction to
reopen his sentence on the four money laundering counts. We disagree. Our prior
order simply “remanded for resentencing.” 272 F.3d at 1098. Under the Guidelines,
“a multi-count sentence is a package and severing part of the total sentence usually
will unbundle it.” Gardiner v. United States, 114 F.3d 734, 736 (8th Cir. 1997)
(quotation omitted). Here, § 5G1.2(d) required the district court to sentence the seven
counts as a package, using consecutive and concurrent sentences so as to impose the
proper total punishment. Thus, when we did not limit our remand to resentencing
only counts 17 and 18, the district court retained jurisdiction to resentence all the
counts as a package.
IV. A Double Jeopardy Issue.
Evans next argues that increasing his sentences on each of the four money
laundering counts violates the Double Jeopardy Clause prohibition on multiple
punishments because he had begun to serve those sentences. Again, we disagree. For
many years, most federal courts read United States v. Benz, 282 U.S. 304, 306-07
(1931), and Ex parte Lange, 18 Wall. 163, 168, 173 (1874), as establishing “that once
a prisoner commences service of sentence, the [Double Jeopardy] Clause prevents a
court from vacating the sentence and then imposing a greater one.” North Carolina
v. Pearce, 395 U.S. 711, 747 (1969) (Harlan, J., dissenting in part). However, in
United States v. DiFrancesco, 449 U.S. 117, 136 (1980), the Court held that the
Double Jeopardy Clause does not prohibit imposing a greater sentence after a
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successful appeal by the government. The Court explained that the defendant “has
no expectation of finality in his sentence until the appeal is concluded or the time to
appeal has expired.” The Court again cited a defendant’s lack of “expectation of
finality in his original sentencing” as the critical Double Jeopardy Clause inquiry in
Pennsylvania v. Goldhammer, 474 U.S. 28, 30 (1985).
Following DiFrancesco and Goldhammer, many circuits have concluded that
a defendant who successfully appeals one part of a multi-count sentencing package
has no expectation of finality as to any part of the sentence. Therefore, the Double
Jeopardy Clause does not bar resentencing on all counts to carry out the sentencing
judge’s original intent. See United States v. Gelb, 944 F.2d 52, 59 (2d Cir. 1991);
United States v. Welch, 928 F.2d 915, 916-17 (10th Cir.), cert. denied, 502 U.S. 850
(1991); United States v. Earley, 816 F.2d 1428, 1433 n.6 & cases cited (10th Cir.
1987) (en banc); United States v. Busic, 639 F.2d 940, 947-48 (3d Cir.) (“where the
sentences were interdependent . . . [t]here is nothing in the history or the policies of
the Double Jeopardy Clause that justifies the denial of resentencing when the
sentence has been spread erroneously over counts that have been declared invalid”),
cert. denied, 452 U.S. 918 (1981). That rule is particularly appropriate in a case
governed by Part 5G of the Sentencing Guidelines, which requires that the multiple
counts be sentenced as an integrated package to achieve the proper total punishment.
As we said in United States v. Harrison, 113 F.3d 135, 138 (8th Cir. 1997),
“[b]ecause the defendant has no legitimate expectation of finality in any discrete part
of an interdependent sentence after a partially successful appeal or collateral attack,
there is no double jeopardy bar to enhancing an unchallenged part of an
interdependent sentence to fulfill the court’s original intent.” Thus, Evans’s 396-
month sentence on remand does not violate the Double Jeopardy Clause prohibition
against multiple punishments for the same offense.
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V. The North Carolina v. Pearce Issue.
In Pearce, the Supreme Court confirmed that the Constitution does not prohibit
imposing a more severe sentence when a defendant who successfully appealed his
first conviction is convicted again after a new trial. 395 U.S. at 723. However, the
Due Process Clause bars the sentencing judge from vindictively imposing a sentence
because the defendant successfully appealed. To guard against the danger of
vindictiveness, the Court held that “whenever a judge imposes a more severe sentence
upon a defendant after a new trial, the reasons for his doing so must affirmatively
appear [and] be based upon objective information concerning identifiable conduct on
the part of the defendant occurring after the time of the original sentencing
proceeding.” 395 U.S. at 726. This principle applies to resentencing after a sentence
is vacated on appeal, as well as to resentencing after a second conviction. See
DiFrancesco, 449 U.S. at 135-36 & n.14; United States v. Mancari, 914 F.2d 1014,
1018 (7th Cir. 1990), cert. denied, 499 U.S. 924 (1991). Evans argues his second
396-month sentence violates this due process principle.
This record contains no hint of actual vindictiveness, so Evans must establish
that the Pearce presumption of vindictiveness applies. But the presumption only
applies if the second sentence is “more severe.” In the case of a one-count
conviction, the presumption does not apply when the same sentence is imposed
following defendant’s successful appeal. United States v. Arrington, 255 F.3d 637,
639 (8th Cir. 2001). Though Evans received the same total sentence on remand, 396
months, he argues the district court violated Pearce by increasing his sentence on four
of the seven counts in constructing his 396-month sentence on remand.
A number of federal cases have considered how to determine whether a second
sentence is more severe in the context of a multi-count conviction. Most circuits have
concluded that the Pearce presumption does not apply so long as the total sentence
imposed upon remand is no greater than the total original sentence. See United States
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v. Campbell, 106 F.3d 64, 67-69 (5th Cir. 1997) (collecting cases and adopting the
majority approach). A minority of pre-Guidelines cases instead compared the total
sentence after remand with the total sentence imposed on those same counts before
the appeal. See United States v. Monaco, 702 F.2d 860, 884-85 and cases cited (11th
Cir. 1983). Under this approach, the Pearce presumption applies if the defendant
receives the same total sentence but was convicted of fewer counts after remand.
Evans urges us to apply the minority rule and reverse his 396-month total sentence
because the district court increased his sentence on the four money laundering counts
on remand. We reject this contention for two reasons.
First, we conclude that no presumption of vindictiveness arises when the
district court resentences a defendant on a multi-count conviction in accordance with
Part 5G of the Sentencing Guidelines. To determine the proper total punishment, the
Guidelines authorize the district court to consider relevant conduct beyond the four
corners of the offense of conviction, including uncharged and even acquitted conduct.
Once the total punishment is determined, Part 5G directs the court to sentence
multiple counts of conviction as an interdependent package, and to use consecutive
as well as concurrent sentencing to construct a combined sentence equal to the total
punishment. Under this sentencing regime, an aggregate sentence on remand that
equals the initial aggregate sentence simply carries out the district court’s original
sentencing intent, regardless of whether § 5G1.2(d) has caused the aggregate sentence
to be constructed somewhat differently. There is no reason to presume that
vindictiveness played any role in this process.
Second, we note that at resentencing Evans received the same total sentence
for the same counts of conviction, unlike defendants in cases applying the minority
rule to multi-count convictions. Thus, even Monaco, on which Evans primarily
relies, does not support his contention. Monaco expressly rejected a “count-by-
count” comparison, concluding that the Pearce presumption would not apply if “the
judge, for whatever reason, increased the sentence on Count 1 by the same amount
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that he decreased the sentence on Count 2.” 702 F.2d at 884-85 n.47. That is
precisely what happened on remand in this case. (The pre-Guidelines sentence was
vacated in Monaco only because one count was dismissed for lack of evidence at the
second trial, a fact that would be less significant under the Guidelines’ principle of
relevant conduct sentencing.)
For these reasons, the district court had jurisdiction to resentence Evans on all
counts of conviction, the 396-month sentence did not violate either the Double
Jeopardy Clause or the Pearce presumption of vindictiveness, and Evans’s
unsupported equal protection argument is without merit.
The 396-month sentence imposed by the district court is affirmed. The case is
remanded to the district court with directions to enter an amended Judgment in a
Criminal Case in which the Imprisonment section on page 3 is modified so as to
impose sentences on each count of conviction and consecutive sentencing that
comply with Part 5G of the Sentencing Guidelines.
RICHARD S. ARNOLD, Circuit Judge, dissenting.
I respectfully dissent. Because the District Court has increased Monroe
Evans’s sentence on four counts by 30 months each, I would hold that the Court
violated his due process rights as defined in North Carolina v. Pearce, 395 U.S. 711
(1969).
Pearce established that a trial judge may not act vindictively in resentencing a
criminal defendant who successfully appeals an element of his conviction. Id. at 726.
To that end, a defendant’s sentence generally may not be made more severe on
remand after a successful appeal, so “whenever a judge imposes a more severe
sentence upon a defendant after a new trial, the reasons for his doing so must
affirmatively appear [and] be based upon objective information concerning
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identifiable conduct on the part of the defendant occurring after the time of the
original sentencing proceeding.” Id. Thus, Pearce sets up a presumption against
increasing a defendant’s sentence on remand after a successful appeal.
The dispositive question in this case is whether the District Court imposed a
more severe sentence on Mr. Evans upon his resentencing on remand. I disagree with
my colleagues’ conclusion that the Court did not enhance his sentence. Mr. Evans
was convicted of seven counts — two counts of violating the Mann Act, one count
of conspiring to violate the Mann Act, and four separate counts of money laundering.
The counts of interest are the four money-laundering counts. At the initial
sentencing, Mr. Evans received 24 months on each count of money laundering.
Following his successful appeal, the District Court sentenced him to 54 months on
each of these counts. I would hold that the Court’s increasing of each of these
sentences represented a more severe sentence for Pearce purposes.
The government contends that Mr. Evans’s sentence is not more severe because
his total term of incarceration remained the same — 396 months. This fact does not
insulate the judge’s order, however. The government’s rationale would wholly
undermine Pearce. If the District Court is free to adjust the sentences for each count
against the defendant, so long as the overall sentence remains constant, then
defendants gain nothing from a successful appeal against sentences on individual
counts. Thus, the government’s rationale creates a right to appeal that carries no
consequent remedy for the defendant.
Because I consider the District Court’s decision to enhance the sentences on
each of Mr. Evans’s convictions for money laundering as imposing a more severe
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sentence, I would find that his sentence deprives him of liberty without due process
of law. Therefore, I respectfully dissent.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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