Appeal from the United States District Court for the Northern District of Illinois, Eastern Division -- No. 74 CR 662 Thomas R. McMillen, Judge.
Swygert, Bauer, Circuit Judges, and van Pelt Bryan, Senior District Judge.*fn*
Appellants, subsequent to plea negotiations, entered pleas of guilty to a two count indictment charging violations of 18 U.S.C. § 2113, the federal bank robbery statute. Count One charged that the four defendants*fn1 robbed the North Community State Bank by force, violence and intimidation, and that during the course of the robbery they put lives in jeopardy by the use of dangerous weapons, in violation of subsections (a) and (d) of § 2113.*fn2 Count Two, realleging the charges of Count One, charged that the defendants took hostages to avoid apprehension in violation of subsection (e) of § 2113.*fn3
At sentencing two of the defendants were sentenced to serve eight years on Count One and ten years on Count Two. The other defendant was sentenced to ten years imprisonment on both counts. In all cases the sentences were to run consecutively. The total amount of years received by these three defendants was in line with their expectations after plea negotiations. All of the defendants began service of their sentences.
About thirty days later, defendant Mayo Turner, with Argentine Thomas later joining, filed a motion in the District Court pursuant to Rule 35 of the Federal Rules of Criminal Procedure*fn4 seeking to correct an illegal sentence. Defendants' motion relied on the United States Supreme Court's holding in Prince v. United States, 352 U.S. 322, 1 L. Ed. 2d 370, 77 S. Ct. 403 (1957).*fn5 The government's response to the motion conceded that the sentences were improper, but in light of the plea bargain involved, urged the District Court to resentence the defendants to the full extent of the original terms imposed.
The District Judge rejected both contentions and ruled that the sentences were proper. The defendants appealed. Prior to the filing of briefs the government, joined by the defendants, filed a motion to remand for resentencing. This Court, without comment on the underlying issue, granted the motion, vacated the sentence and remanded to the District Court for resentencing.
All three defendants were returned to the District Court.*fn6 The judge below imposed a general sentence on the whole indictment. Scruggs and Turner were sentenced to terms of eighteen years imprisonment and Thomas was sentenced to twenty years. In each case the resentence equaled the total of the original consecutive sentences but exceeded that which was imposed on any one count. This appeal arises out of that resentencing.
The defendants contend that because they had begun service of their sentences the imposition of the eighteen and twenty year sentences constitutes an unconstitutional enhancement. They assert that the double jeopardy clause*fn7 bars the imposition of sentences that exceed the maximum sentence originally imposed on any one count of the indictment.
The government answers that since each defendant knew, prior to the entry of his guilty plea, that he would receive a sentence "in the neighborhood" of twenty years, the resentencing was not unconstitutional. We do not agree.
The law is well settled that increasing a sentence after the defendant has commenced to serve it is a violation of the constitutional guaranty against double jeopardy. This rule was first set out in Ex Parte Lange, 85 U.S. 163, 18 Wall 163, 21 L. Ed. 872 (1874). See also United States v. Benz, 282 U.S. 304, 75 L. Ed. 354, 51 S. Ct. 113 (1931); United States v. Corson, 449 F.2d 544 (3d Cir. 1971); United States v. Welty, 426 F.2d 615 (3d Cir. 1970); Sullens v. United States, 409 F.2d 545 (5th Cir. 1969); United States v. Sacco, 367 F.2d 368 (2d Cir. 1966); Ekberg v. United States, 167 F.2d 380 (1st Cir. 1948).
This Court in dicta has acknowledged and endorsed this principle in the case United States v. Teresi.*fn8 In Teresi we asked whether or not one judge in reconsidering a sentence imposed by another judge could enhance that sentence. Our answer was quite clear: "We think no more onerous sentence could be imposed once defendant began to serve his period of probation," at p. 899. Then, quoting from United States v. Sacco, supra, and relying on the citations therein, we put forth the general rule that no sentence may be enhanced once service has begun. Supra at 899.
We more subtly made the same point recently in United States v. Fleming.*fn9 In Fleming four defendants were convicted on a multiple count indictment charging violations of various subsections of the bank robbery statute. The judge there sentenced them consecutively on several combinations of counts totaling forty years to three defendants and thirty years as to the fourth. No sentence on any one count exceeded twenty years though maximum terms on some of the counts exceeded that number. The defendants appealed contending that consecutive sentencing on separate subsections was improper. We agreed but Judge Stevens, speaking for the Court, implied our endorsement on the Lange rule:
"Defendants contend first that Judge Foreman erred in sentencing them separately under subsections (a), (b) and (d) for what was in fact the robbery of a single teller. They argue that subsections (a) and (b) merge into the aggravated robbery punishable under subsection (d), and that even the imposition of concurrent sentences was erroneous. Then, they contend that the placing of the lives of two tellers in jeopardy during a single bank robbery does not constitute the commission of two separate offenses under subsection (d). Thus, they conclude that their maximum ...