Appeal from the United States District Court for the Eastern District of Wisconsin. No. 81 CR 129 - John W. Reynolds, Judge.
Cummings, Chief Judge, Cudahy, Circuit Judge and Pell, Senior Circuit Judge.
In a prior appeal, we found that the district court had improperly sentenced appellant Jefferson under 21 U.S.C. §§ 841 and 846, as well as under 21 U.S.C. § 848. We vacated all sentences, directing the district court to resentence under § 848; in a footnote to our opinion we proposed that if the district judge wanted to fulfill his original intention of sentencing to thirty years of imprisonment, he could do so under § 848. On remand, Jefferson was sentenced to thirty years under that section of the statute. Jefferson appeals the resentencing, arguing that increasing the sentence on the § 848 count put her twice in jeopardy for the same offense, and was a denial of due process under North Carolina v. Pearce, 395 U.S. 711, 23 L. Ed. 2d 656, 89 S. Ct. 2072 (1969).
On May 12, 1982, Dorothy Jefferson was sentenced to a total of thirty years imprisonment on a variety of charges, including 10 years for engaging in a continuing criminal enterprise, under 21 U.S.C. § 848; 5 years for involvement in a conspiracy to distribute drugs, under 21 U.S.C. § 846, to operate concurrently with the first; 5 years on each of four counts of possession with intent to deliver, 21 U.S.C. § 841(a)(1), to operate consecutively to each other and to the ten year sentence; and 3 years on each other count, to run concurrently with each other and with the sentences imposed under §§ 848 and 841(a)(1).
On her initial appeal, Jefferson successfully challenged the sentences imposed under § 841(a)(1) and the (concurrent) sentence imposed under § 846. This court held that § 846 was a lesser offense included in § 848, so that a defendant could not be sentenced under both, and that it was not Congress's intention to allow cumulative sentencing both on the predicate substantive offense of a § 848 conviction (here, the sentencing under § 841(a)(1)) and on § 848 itself. We then said:
We are left with the question of whether we must simply vacate the sentences we have found improper and leave appellant to serve ten years on her § 848 conviction, or whether we may properly vacate all the sentences (including the unchallenged § 848 sentence) and remand the entire case for resentencing by the trial judge consistent with his original intentions. Although 28 U.S.C. § 2106 vests in us, inter alia, the supervisory power to vacate and remand the entire sentencing package despite the fact that it includes an unchallenged sentence, see, e.g., Johnson v. United States, 619 F.2d 366, 368 (5th Cir. 1980), and United States v. Moore, 176 U.S. App. D.C. 309, 540 F.2d 1088, 1091 (D.C. Cir. 1976), to do so would be futile unless the trial judge has direction to increase appellant's § 848 sentence.
The rule in this and other circuits prior to United States v. DiFrancesco, 449 U.S. 117, 101 S. Ct. 426, 66 L. Ed. 2d 328 (1980) was that increasing a sentence once service had begun was prohibited as a violation of the guarantee against double jeopardy. United States v. Turner, 518 F.2d 14, 15-16 (7th Cir. 1975). Accord, e.g., United States v. Fredenburgh, 602 F.2d 1143, 1147-48 (3d Cir. 1979); Sullens v. United States, 409 F.2d 545, 547 (5th Cir. 1969); United States v. Sacco, 367 F.2d 368, 369-70 (2nd Cir. 1966). No exception was made where the enhancement was for the purpose of carrying out the intentions of the judge and fulfilling the expectations of the defendant. Turner, 518 F.2d at 16.
In light of DiFrancesco, however, it is necessary to abandon the rule of Turner. Where a sentence is held on appeal to be improper or illegal, it is not inconsistent with the Double Jeopardy Clause for a defendant to be resentenced upon remand according to the original intentions of the trial judge, even if this entails enhancement of one or more of the original sentences. Accord, McClain v. United States, 676 F.2d 915 (2d Cir.), cert. denied,  U.S. , 103 S. Ct. 174, 74 L. Ed. 2d 143 (1982); United States v. Busic, 639 F.2d 940 (3d Cir.), cert. denied, 452 U.S. 918, 101 S. Ct. 3055, 69 L. Ed. 2d 422 (1981). Because the trial judge is vested with discretion to increase appellant's § 848 sentence, we will vacate and remand the entire sentence "package" for resentencing.
United States v. Jefferson, 714 F.2d 689, 707 (7th Cir. 1983). And in a footnote we said:
At both the sentencing and resentencing hearings, the trial judge expressly stated that his intention was to give the defendant thirty years. Sentencing Tr. 20, 29. He explained that he had divided the sentence over the various counts because § 848 contains a no-parole provision, and he wanted to give the Department of Justice discretion to release the defendant after ten years if her health problems so required. He emphasized that his decision was made purely out of concern for defendant's poor health, and that he strongly believed that the defendant was a "very dangerous person" and should not "be returned to the community at any time when she's able to supervise any type of activity on anyone's part." Sentencing Tr. 21.
Because a conviction on § 848 carries a minimum ten-year sentence, the judge is not empowered to effect his desire to impose an aggregate of thirty years by vacating the § 848 sentence and imposing sentences only on the substantive offenses. Thus, the trial judge may decide to satisfy his intent to sentence appellant to thirty years only by increasing her § 848 sentence.
Id. at 707, n.34. In other words, we vacated all the sentences in order to allow the trial judge to rework them according to his original intention; we held that under DiFrancesco it was not constitutionally impermissible for the district judge to increase sentence on one of the counts in order to carry out that intention; and we suggested that since the judge would have to sentence on either § 848 or the predicate offenses but not both, and since § 848 carried a minimum sentence and allowed ...