UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 93-2244
Summary Calendar
__________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES E. STAFFORD,
Defendant-Appellant.
______________________________________________
Appeal from the United States District Court for the
Southern District of Texas
______________________________________________
(August 3, 1994)
Before GARWOOD, SMITH and DeMOSS, Circuit Judges.
GARWOOD, Circuit Judge:
James E. Stafford (Stafford) was convicted of, and sentenced
for, tax evasion. 26 U.S.C. § 7201. He appealed. In United
States v. Stafford, 983 F.2d 25 (5th Cir. 1993), we affirmed his
conviction but vacated a portion of his sentence concerning
conditions of probation. Upon remand for resentencing, the
district court modified Stafford's sentence in accordance with our
decision. At the same time, the court revoked his probation for
failure to file a 1991 income tax return. Stafford now brings this
appeal, claiming that the district court lacked jurisdiction to
alter his sentence or revoke his probation because our mandate from
his first appeal had not issued at the time of the district court's
order and judgment. Although we do not endorse the district
court's decision to act upon our judgment before the mandate
issued, we conclude that no plain error occurred in Stafford's
resentencing or in the revocation of his probation.
Facts and Proceedings Below
Stafford was convicted of three counts of tax evasion for
failing to file income tax returns for the years 1985 to 1987. In
February 1992, he was sentenced to three years' probation.
Conditions placed upon his probation required him to spend six
months in a halfway house and perform fifty hours of community
service. In addition, the district court ordered Stafford to
provide his probation officer access to any requested financial
information and to cooperate with the Internal Revenue Service
(IRS) to resolve the issue of his tax liability.
Stafford appealed his conviction and sentence, challenging,
inter alia, the conditions of his probation concerning provision of
financial information and cooperation with the IRS. In an opinion
filed on January 26, 1993, we affirmed his conviction but agreed
that the obligations to provide access to any financial information
and to cooperate with the IRS for unspecified tax years were
"overly broad and harsh." Stafford, 983 F.2d at 26. We vacated
his sentence and remanded for resentencing as to those portions of
his sentence.
On September 18, 1992, while Stafford's appeal was pending,
his probation officer filed a motion in the district court for
2
revocation of Stafford's probation. The motion alleged that
Stafford had violated 26 U.S.C. § 7203 by failing to file his 1991
income tax return and that he had failed to follow the instructions
of his probation officer regarding the necessity of filing his 1991
return. The district court set a hearing on this motion for
October 23, 1992; this hearing was continued upon Stafford's motion
until our Court could rule on his appeal.
After our opinion issued in January 1993, the district court
set a hearing for February 26, 1993, to consider the matters of
Stafford's sentence and the government's motion for revocation of
probation. Stafford's attorney moved for a continuance to resolve
a conflict with his personal schedule. Stafford did not bring to
the district court's attention the lack of a mandate from our
Court, nor did he ask the court to continue the hearing until after
the issuance of our mandate. Instead, he merely asked for the
court to continue the hearing "until after February 26, 1993."1
The district court granted his motion and set the resentencing and
probation revocation hearing for March 19, 1993.
On March 19, the district court resentenced Stafford, in
accordance with our judgment, to three years' probation, with the
1
At the resentencing hearing, counsel for Stafford stated
that the court had already noted "the fact that Mr. Stafford is
still in the appeal process." This reference was to a comment
made at the beginning of the hearing in which the district court
cited our order remanding the case with instructions for
resentencing. The court announced its intention to impose a
corrected sentence and to proceed with the revocation motion.
When asked if that was acceptable, counsel for Stafford assented.
At no point during the hearing did Stafford raise any issue
concerning the propriety of the district court's entertaining and
acting upon his resentencing or the motion for revocation of
probation.
3
amended condition that his cooperation with the IRS was limited to
tax years 1985 to 1987, and the years covered by his probation, and
would "not exceed that level of cooperation which could be
compelled pursuant to federal civil discovery and trial rules."
Stafford, 983 F.2d at 29. At the same hearing, the district court
revoked Stafford's probation. In its judgment and order issued
March 25, the district court expressly found that he had violated
federal law by failing to file his 1991 income tax return. The
court imposed a one-year term of imprisonment to be followed by two
years of supervised release.
Owing to Stafford's two motions for extensions of time in
which to file petitions for rehearing, the mandate resulting from
our judgment of January 26, 1993, did not issue until May 10,
1993.2
In June 1993, Stafford moved the district court to stay the
execution of his judgment and commitment pending appeal of the
order of revocation to this Court. He argued that the district
court had improperly revoked his probation for failure to pay his
1991 taxes because his tax liability for that year had not been
conclusively established. Again, although our mandate had issued
by this time, Stafford did not raise the question of the district
court's jurisdiction in his motion. The district court denied the
stay; Stafford had violated federal law, and thereby the conditions
2
Stafford's petition for rehearing was finally filed on April
13, 1993. We denied the petition on April 29, and the mandate
issued May 10.
4
of his probation, by willfully failing to file a 1991 tax return.
3
In his second appeal, Stafford argues that the district court
lacked jurisdiction to resentence him and to revoke his probation
because our mandate did not issue until after the district court's
actions.4
Discussion
Stafford claims that the district court violated the rule that
an appellate court retains jurisdiction over an appeal until it has
issued a mandate to implement its judgment. United States v. Cook,
592 F.2d 877, 880 (5th Cir.), cert. denied, 99 S.Ct. 2847 (1979).
Therefore, reasoned the court in Cook, the district court did not
reacquire jurisdiction over the case until the issuance of the
mandate. Relying on this "transfer of jurisdiction" rule, Stafford
claims that the district court in the present case was without
jurisdiction to modify his sentence or revoke his probation in
March 1993 because the mandate from his first appeal did not issue
(and jurisdiction was not returned to the district court) until May
10, 1993.
This rule is not inviolable, however. We have recognized that
the "'decision as to whether jurisdiction exists in a trial or
appellate court, or both, can be the product of reasoned choice.'"
United States v. Dunbar, 611 F.2d 985, 987 (5th Cir. 1980) (en
3
Stafford then sought a stay from this Court. This Court
denied the requested stay.
4
Although Stafford includes issues related to his
resentencing in his arguments on appeal, in his notice of appeal
he challenges only the order revoking his probation. Finding no
plain error in either case, we include both in our discussion.
5
banc) (quoting United States v. Hitchmon, 587 F.2d 1357, 1362-63
(5th Cir. 1979) (panel opinion) (Higginbotham, J., concurring)).
We have applied this concept of "dual jurisdiction" between the
appellate and district courts to allow a district court to correct
an illegal sentence pursuant to Federal Rule of Criminal Procedure
35(a) after the filing of a notice of appeal.5 United States v.
Ortega, 859 F.2d 327, 334-35 (5th Cir. 1988), cert. denied, 109
S.Ct. 1157 (1989).
In Ortega, the defendant was convicted of firearms offenses
and sentenced to seven years' imprisonment. One week after his
notice of appeal was filed, the government filed a Rule 35(a)
motion to correct his sentence in the district court because the
sentence was below the statutory minimum and therefore illegal.
The district court granted the motion and increased the defendant's
sentence to fifteen years in compliance with the pertinent statute.
On appeal, Ortega, like Stafford, objected to the increase in his
sentence on the ground that the district court lacked jurisdiction
to modify his sentence because of the pending appeal.
Relying on our earlier opinion in United States v. Dunbar, 611
F.2d at 987-989, we held that the district court had jurisdiction
to correct Ortega's sentence. In Dunbar, the district court
5
See also United States v. Dunbar, 611 F.2d at 989 (holding
that pending appeal of a denial of a frivolous double jeopardy
motion did not preclude concurrent trial in district court). In
Dunbar, we observed that "dual jurisdiction" is not a new
concept; it has been applied to allow a district court "to modify
or grant an injunction pending appeal, to act with regard to
appeal and supersedeas bonds, and to aid execution of a judgment
that has not been superseded." Id. (citing 9 J. MOORE, MOORE'S
FEDERAL PRACTICE § 203.11 at 734-36 (2d ed. 1975)).
6
denied, on the first day of his trial, the defendant's motion based
on double jeopardy grounds. Notwithstanding the defendant's
immediate appeal of that ruling, the court proceeded with the
trial, and the jury returned a verdict of guilty. We weighed the
risk that the defendant's constitutional rights might be invaded
against the need for the district court to prevent intentional
dilatory tactics. Dunbar, 611 F.2d at 988. Upon the facts of that
case, we concluded that the district court had jurisdiction to
proceed with Dunbar's trial even as his double jeopardy appeal was
pending.6 Id. The circumstances of Ortega presented less severe
implications: postponement of a Rule 35(a) motion would cause less
disruption than last-minute delay of a trial, and "no
constitutional right of the defendant would be infringed by
correcting a sentence that would later be vacated if the
defendant's appeal of the conviction [were] successful." Ortega,
859 F.2d at 335 (footnote omitted).
Stafford's circumstances are akin to those in Ortega, and the
same reasoning applies. Although, unlike the court in Ortega, the
district court was not faced with a statutorily compelled result,
it was not without guidance in resentencing Stafford and revoking
his probation. The court had the benefit of our decision in
Stafford's original appeal and resentenced him in full conformity
with that decision. The district court risked our modifying our
opinion on rehearing, but significantly, as it turns out, this did
6
It was obvious to the courts considering the issue that this
motion was "'both frivolous and dilatory.'" Dunbar, 611 F.2d at
987 (quoting United States v. Dunbar, 591 F.2d 1190, 1193 (5th
Cir. 1979) (panel opinion)).
7
not come to pass. Furthermore, the court revoked Stafford's
probation upon the valid grounds, supported by the evidence, that
he had violated federal law and had failed to follow his probation
officer's proper instructions. The district court's actions did
not interfere with proceedings in our Court, nor did they implicate
Stafford's constitutional rights. We conclude that the present
case falls within the narrow confines of the "dual jurisdiction"
theory of Ortega, and that under the particular circumstances here
the district court had jurisdiction to modify Stafford's sentence
and revoke his probation.
We do not say that the district court should not have waited
for our mandate or committed no error by failing to do so; we say
only that the court was not wholly lacking in jurisdiction to act,
so its actions were not void. Cf. Sierra Club v. Yeutter, 926 F.2d
429, 435-437 (5th Cir. 1991) (statutory provision for notice prior
to suit, though mandatory, is not jurisdictional in strict sense of
the term).
The district court should have awaited our mandate; its
failure to do so, although not a strictly jurisdictional defect,
was error. But Stafford raised no question in this respect below,
and we are hence limited to review for plain error. In order to
gain relief under this standard, Stafford must show that (1) the
district court deviated from a legal rule, (2) the error was clear
or obvious, and (3) the error affected substantial rights and
influenced the district court proceedings. United States v. Olano,
113 S.Ct. 1770, 1777-78 (1993). This Court "should correct a plain
forfeited error affecting substantial rights if the error
8
`seriously affect[s] the fairness, integrity or public reputation
of judicial proceedings.'" Id. at 1779 (quoting United States v.
Atkinson, 56 S.Ct. 391, 392 (1936)). Under the circumstances here,
Stafford's appeal does not meet the test for plain error.
Stafford did not challenge the propriety of the district
court's taking action on these matters and, in fact, appears to
have acquiesced to it. In his second motion for a continuance of
the probation revocation hearing, Stafford asked the court to
continue the hearing "until after February 26, 1993," in order to
resolve a conflict in his attorney's personal schedule. Stafford
did not at any time ask the district court to stay the hearing
until after the mandate issued. At the resentencing hearing, the
district court announced its intention to impose a new sentence and
to consider the motion for revocation of probation; counsel for
Stafford agreed to this order of proceeding and did not challenge
the district court's authority to conduct the hearing.
Furthermore, any error in conducting the resentencing hearing
was not obvious. The rules governing appellate procedure provide
that the mandate of our Court
"shall issue 21 days after the entry of judgment unless
the time is shortened or enlarged by order. . . . The
timely filing of a petition for rehearing will stay the
mandate until disposition of the petition unless
otherwise ordered by the court. If the petition is
denied, the mandate shall issue 7 days after entry of the
order denying the petition unless the time is shortened
or enlarged by order." FED. R. APP. P. 41(a).
No entry in the district court's docket sheet at the time of the
resentencing revealed that Stafford had requested, and was granted,
an enlargement of time in which to file a petition for rehearing in
9
our Court, or that, in fact, our mandate had not yet issued. The
district court could easily have assumed that the mandate had
issued per Rule 41(a) on the twenty-first day after the entry of
judgment on January 26, 1993.
Finally, any alleged error did not affect Stafford's
substantial rights. The district court's modifications of his
sentence were in conformity with our earlier decision, and the
revocation of his probation was well-founded. A "ritualistic"
application of the transfer of jurisdiction rule of United States
v. Cook would merely result in a reversal and remand to the
district court to do what it has already done. See Ortega, 859
F.2d at 334 n. 12 (citing criticism of the transfer of jurisdiction
rule as applied in United States v. Hitchmon, 587 F.2d 1357 (5th
Cir. 1979), rev'd en banc, 602 F.2d 689 (5th Cir. 1979), in 9 J.
MOORE & B. WARD, MOORE'S FEDERAL PRACTICE ¶ 203.11 at 3-5-54)).
There was no plain error.
Conclusion
For the reasons stated above, the district court's order
revoking Stafford's probation and resentencing him according to our
prior opinion is
AFFIRMED.
10