United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS October 4, 2004
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
_____________________
No. 03-11204
_____________________
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
MARSHALL DEWAYNE WILLIAMS
Defendant - Appellant
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
No. 3:84-CR-0148-G
_________________________________________________________________
Before KING, Chief Judge, and SMITH and EMILIO M. GARZA, Circuit
Judges.
PER CURIAM:*
Appellant was convicted of violating 18 U.S.C. § 844(i), the
federal arson statute. He subsequently brought a motion under
former Federal Rule of Criminal Procedure 35(a), arguing both
that his sentence is not authorized by the relevant sentencing
statute and that the original trial court lacked subject matter
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
jurisdiction. Both claims were denied by the district court. He
appeals the district court’s order. We affirm as to both issues.
I. FACTUAL AND PROCEDURAL BACKGROUND
On October 18, 1984, Williams was convicted in federal
district court on three counts relating to his planting a pipe-
bomb in a newspaper vending machine. The pipe-bomb exploded,
killing Williams’s stepfather. Count One, the subject of this
appeal, was based on Williams’s violation of 18 U.S.C. § 844(i).1
It charged him with maliciously destroying a coin-operated
newspaper dispenser by means of an explosion that resulted in the
death of another. Counts Two and Three charged Williams with
1
At the time of the offense, the relevant portion of
18 U.S.C. § 844(i) stated:
Whoever maliciously damages or destroys, or attempts to
damage or destroy, by means of fire or an explosive, any
building, vehicle, or other real or personal property
used in interstate or foreign commerce or in any
activity affecting interstate or foreign commerce shall
be imprisoned for not more than ten years or fined not
more than $10,000, or both; . . . and if death results .
. . shall also be subject to imprisonment for any term
of years, or to the death penalty or to life
imprisonment as provided in section 34 of this title.
18 U.S.C. § 844(i) (1988) (repealed 1994).
The relevant portion of 18 U.S.C. § 34 stated:
Whoever is convicted of any crime prohibited by this
chapter, which has resulted in the death of any person,
shall be subject also to the death penalty or to
imprisonment for life, if the jury shall in its discretion
so direct . . . .
18 U.S.C. § 34 (1988) (repealed 1994).
2
illegally possessing a firearm and illegally constructing a
firearm, respectively.
On December 12, 1984, Williams was sentenced to life
imprisonment on Count One. He was sentenced to ten years’
imprisonment on both Counts Two and Three. The sentences on
Counts Two and Three were ordered to be served concurrently with
each other but consecutively to the sentence for Count One.
On direct appeal, Williams challenged several issues arising
from the trial. The most notable of these was his contention
that the statutory scheme allowed for the imposition of a life
sentence only at the jury’s discretion. At the time of
Williams’s conviction, § 844(i) provided that where death results
from the malicious destruction of property used in interstate
commerce, the defendant is “subject to imprisonment for any term
of years, or to the death penalty or to life imprisonment as
provided in section 34 of this title.” 18 U.S.C. § 844(i) (1988)
(repealed 1994). Section 34, in turn, dictated that the
defendant “shall be subject also to the death penalty or to
imprisonment for life, if the jury shall in its discretion so
direct.” 18 U.S.C. § 34 (1988) (repealed 1994). Since the issue
of punishment was never presented to the jury, Williams claimed
that the court did not have the power to sentence him to a life
sentence.
This court agreed with Williams’s contention that the court
could not sentence him to life imprisonment, finding that
3
“[a]bsent the recommendation of the jury, this sentence was
improper and must be vacated and the cause remanded to the
district court for resentencing.” United States v. Williams, 775
F.2d 1295, 1299 (5th Cir. 1985). All other aspects of the
original sentence were affirmed. Id. at 1303. On remand, the
district court sentenced Williams to ninety-nine years on Count
One. At that time, he did not appeal the sentencing decision
made on remand.
On April 21, 2003, Williams filed a motion under Rule 35(a)
of the Federal Rules of Criminal Procedure. He brought the
motion under a former version of Rule 35(a) that still applies to
offenses committed before Rule 35(a) was amended in November of
1987. United States v. Pineda, 988 F.2d 22, 23 n.2 (5th Cir.
1993). The pre-1987 rule states that a “court may correct an
illegal sentence at any time and may correct a sentence imposed
in an illegal manner within the time provided herein for the
reduction of sentence.”2 Id. (citing the prior version of Rule
35(a)).
Williams challenged the legality of his sentence on two
grounds. First, he argued that in light of the Supreme Court’s
recent Commerce Clause decisions, particularly Jones v. United
States, 529 U.S. 848 (2000), § 844(i) could not constitutionally
2
All subsequent references to Rule 35(a) are to this
prior version.
4
be applied to his conduct, a problem that (as he argues) left the
district court without subject matter jurisdiction. Williams’s
second ground of attack was that the ninety-nine year sentence
imposed on remand from this court is functionally equivalent to
life imprisonment and thus runs afoul of the requirement in 18
U.S.C. § 34 that such a punishment can only be given by a jury.
The district court considered these arguments and denied relief
on both claims.
Williams now appeals the district court’s disposition of his
Rule 35(a) motion. Pursuant to 28 U.S.C. § 1291, this court has
jurisdiction to hear the appeal.
II. ANALYSIS
A. The Jurisdictional Claim.
Rule 35(a) serves a limited purpose. Its narrow function is
to “permit correction at any time of an illegal sentence, not to
re-examine errors occurring at the trial or other proceedings
prior to the imposition of sentence.” Hill v. United States, 368
U.S. 424, 430 (1962) (emphasis in original); see also United
States v. Prestenbach, 230 F.3d 780, 782 (5th Cir. 2000) (“a
defendant cannot challenge his conviction; he can only challenge
his sentence”). The disposition below of Williams’s
jurisdictional claim must be affirmed because it is not
appropriately brought under Rule 35(a). Phrasing his argument as
a claim that the district court lacked jurisdiction does not
5
convert what is essentially a challenge to his conviction into a
claim that his sentence is illegal. Williams levels an attack on
the underlying conviction and this is an inappropriate claim to
bring under Rule 35(a). Cf. United States v. Lika, 344 F.3d 150,
153 (2d Cir. 2003) (“We need not reach the question of whether a
6(f) violation deprives the court of jurisdiction, because Lika's
jurisdictional argument, no less than his other contentions,
represents an attack on the underlying conviction and is
inappropriately raised in a Rule 35(a) motion.”) For these
reasons, we affirm the district court’s order holding that
Williams’s “jurisdictional” claim is not the proper subject of a
Rule 35(a) motion.
B. The Term of Incarceration.
While the first issue Williams raised on appeal is not
properly brought under Rule 35(a), this rule is the correct
vehicle for Williams’s claim regarding the duration of his
sentence and the allegedly fatal flaw in the manner in which it
was imposed: he directly argues that the sentence imposed upon
him by the judge, ninety-nine years, is the equivalent of a life
sentence and that the judge was not authorized by the applicable
sentencing statute to impose a life sentence except upon the
recommendation of a jury. As there are no other procedural bars
to our consideration of Williams’s second claim, we proceed to
consider the merits of his argument.
6
Following the plain meaning of the statute, it is clear that
Williams’s sentence does not violate the jury directive. Section
844(i) delegates a great deal of discretion to the trial judge in
sentencing a defendant. The statute clearly states that a
defendant may be sentenced by a judge to any number of years. A
ninety-nine year sentence unquestionably falls within this broad
proclamation. Thus, the sentence is unobjectionable. In
addition to the plain language of the statute, it is important to
consider that adding qualifications to the capacious meaning of
the word “any” renders the word superfluous. In interpreting
statutes, it is desirable to give every word independent meaning.
Most courts that have considered the issue before us have
chosen to look beyond the plain meaning of § 844(i), but they
have done so in a different context, specifically in the context
of sentences imposed under the United States Sentencing
Guidelines. They have found that a sentence for a term of years
beyond the defendant’s life expectancy violates the statutory
scheme. United States v. Grimes, 142 F.3d 1342, 1352 n.12 (11th
Cir. 1998) (“[i]t is true, as Grimes contends, that circuit
courts considering the application of the pre-1994 versions of §
884(i) [sic] and § 34 have consistently concluded that only a
jury had authority to impose a life sentence and that the judge
could only impose a sentence for a term of years less than
life.”); United States v. Tocco, 135 F.3d 116, 131-32 (2d Cir.
1998) (affirming a lower court decision on the issue); United
7
States v. Gullett, 75 F.3d 941, 950-51 (4th Cir. 1996); United
States v. Prevatte, 66 F.3d 840, 843-44 (7th Cir. 1995); United
States v. Martin, 63 F.3d 1422, 1433-34 (7th Cir. 1995).
The courts that have looked beyond the plain meaning of the
statutory scheme have taken the view that in adding the jury
directive, Congress evinced a clear desire to add restrictions
and conditions on a court’s ability to sentence a defendant to
life. Allowing a trial judge to sentence a defendant to a number
of years that is the functional equivalent of a life sentence
would do violence to Congress’s intent and would render the jury
directive a nullity. See, e.g., Gullett, 75 F.3d at 950-51;
United States v. Ferranti, 928 F. Supp. 206, 216 (E.D.N.Y. 1996),
aff’d sub nom United States v. Tocco, 135 F.3d 116 (2d Cir. 1998)
(“[a] sentence lasting beyond defendant's expected lifetime would
circumvent the jury directive requirement of 18 U.S.C. § 34 . . .
.").
What distinguishes Williams’s case from this line of cases
is Williams’s eligibility for parole.3 The federal parole system
was repealed effective November 1, 1987. 18 U.S.C. § 4201
(2000). However, a prisoner who committed his offense before
that date is still eligible for parole under the old system. In
3
Since Williams is eligible for parole, we need not, and
explicitly do not, express any opinion on how the prior versions
of 18 U.S.C. §§ 844(i) and 34 should be interpreted for those
defendants who are ineligible for parole.
8
his concurrence in Prevatte, then-Chief Judge Posner suggested
that an important reason for ensuring that the defendant received
a sentence for a term of years less than life was the repeal of
the federal parole system in 1987. He reasoned that since in a
parole system, “a term of years means what the parole board wants
it to mean. . . . A sentence to a term of years, no matter how
long, was not a sentence of life imprisonment. . . .” Prevatte,
66 F.3d at 846 (7th Cir. 1995)(Posner, C.J., concurring).
Under the parole system, there is little chance that
Williams will serve his entire ninety-nine year sentence.
Indeed, Williams is already eligible for parole. See 18 U.S.C. §
4205(a) (2000). Additionally, the parole provisions provide that
prisoners are presumptively4 paroled “after having served two-
thirds of each consecutive term or terms, or after serving thirty
years of each consecutive term or terms of more than forty-five
years . . . .” 18 U.S.C. § 4206(d) (2000). Following this
statute and assuming compliance with its conditions, Williams
will serve, at most, thirty of the ninety-nine years to which he
was sentenced for his violation of § 844(i).5 If we accept
4
Under 18 U.S.C. § 4206(d), this presumption applies
unless the Parole Commission finds that the prisoner: (1) has
committed serious or frequent violations of institutional rules,
or (2) is likely to commit a Federal, State, or local crime if
paroled.
5
Williams still must serve his ten-year concurrent
sentences from Counts Two and Three. However, any time he may
have to serve for these sentences is irrelevant to the analysis
of his sentence for violating § 844(i).
9
arguendo Williams’s invitation to factor into our analysis his
life expectancy at the time of his sentencing, Williams was
twenty-two years old when he was sentenced. His life expectancy
was (as he recognizes) approximately sixty-seven years.6 This
means that the portion of his incarceration attributable to his
violation of § 844(i) will conclude when he is, at the oldest,
fifty-two years old. This leaves him with approximately fifteen
more years of expected life outside of jail. Because Williams’s
eligibility for parole means he will fulfill his sentence within
the term of his life expectancy, it is impossible to conclude
(accepting arguendo his argument) that his ninety-nine-year
sentence is the functional equivalent of him spending the rest of
his life in prison.
CONCLUSION
For the foregoing reasons, the order of the district court
denying Williams’s Rule 35 motion is AFFIRMED.
6
Nat’l Ctr. for Health Statistics, U.S. Dep’t of Health &
Human Servs., Health, United States, 2003, 133 tbl. 27 (2003)
(indicating that a Caucasian male born in 1960 has a life
expectancy of 67.4 years at birth).
10