Appeal from the United States District Court for the Eastern District of Wisconsin. No. 81 CR 129 -- John W. Reynolds, Judge.
Before CUMMINGS, Chief Judge, CUDAHY, Circuit Judge and PELL, Senior Circuit Judge.*fn*
CUDAHY, Circuit Judge. On October 7, 1985 the Supreme Court vacated this court's decision in United States v. Jefferson, 760 F.2d 821 (7th Cir. 1985), and remanded the case to us for further consideration in light on one of its recent decisions. Jefferson v. United States, 474 U.S. 806, 106 S. Ct. 41, 88 L. Ed. 2d 34 (1985). Thus, the question of the prison sentence Dorothy Jefferson must serve for her participation in an elaborate drug sales operation is before us for a third time. We remand to the district court with instructions to reinstate the sentence it originally imposed on the defendant in 1982.
In May 1982, Dorothy Jefferson was convicted in the Eastern District of Wisconsin of one court of participation in a continuing criminal enterprise, 21 U.S.C. § 848; one count of conspiracy to distribute controlled substances, 21 U.S.C. § 846; twenty-one counts of distribution of controlled substances, 21 U.S.C. § 841(a)(1); and two counts of use of a communications facility in the distribution of a controlled substance, 21 U.S.C. § 843(b). She was sentenced to a total of thirty years' imprisonment: ten years on the § 848 conviction and five years on each of four of the § 841(a)(1) convictions, to be served consecutively with each other and the § 848 sentence. (Sentences of five years for the § 846 conspiracy and three years for each of the remaining nineteen substantive counts ran concurrently with each other and the above sentences.)
Section 848 sentences are to be served without parole. 21 U.S.C. § 848(c). The four five-year sentences provided for parole eligibility after one-third of the sentence had been served. Thus, the total sentence package called for parole eligibility after sixteen years and eight months. The trial judge distributed the sentence in this way, instead of giving a thirty-year sentence under § 848, 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 this discretion was made purely out of concern for defendant's poor health, and that he strongly believed 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."
United States v. Jefferson, 714 F.2d 689, 707 n.34 (7th Cir. 1983) (quoting Sentencing Transcript at 21.)
On her initial appeal, Jefferson successfully challenged the four five-year sentences imposed under § 841(a)(1) as violations of the Double Jeopardy Clause of the Fifth Amendment. A panel of this court held that Congress had not intended to allow cumulative sentencing both on the predicate offenses necessary to prove a continuing criminal enterprise (here, the four five-year sentences) and the § 848 conviction itself.*fn1 The court then vacated the original sentence and remanded to the trial judge for resentencing. Jefferson, 714 F.2d at 707.
The trial judge stating that he was basing the sentence on the same factors he had considered at the time of the original sentencing, increased Jefferson's sentence under § 848 to thirty years and made all of the other sentence concurrent with that sentence. The total sentence was thus still thirty years, but under the new sentence Jefferson would not be eligible for parole.
Jefferson again appealed and a different panel of this court affirmed the new sentence. Although we agreed with Jefferson that the change in parole status did constitute an increased sentence, we held that in this case the resentencing did not violate the due process standards of North Carolina v. Pearce, 395 U.S. 711, 23 L. Ed. 2d 656, 89 S. Ct. 2072 (1969). Pearce establishes a propylactic rule that a resentence following an appeal shall not be heavier than the original sentence lest judicial "vindictiveness" chill the right to appeal. We noted that "under the circumstances of this case, narrowly described, the possibility of vindictiveness that underlies the application of the Pearce rule is not present." United States v. Jefferson, 760 F.2d 821, 827 (7th Cir. 1985). Given the option of a thirty-year sentence without parole or a seventeen-year sentence without parole, the trial judge was allowed to give the sentence that most comported with his original sentencing scheme. Id. at 828.
Jefferson petitioned the Supreme Court for a writ of certiorari. The Supreme Court granted the writ, 474 U.S. 806, 106 S. Ct. 41, 88 L. Ed. 2d 34 (1985), vacated the second panel opinion, and remanded the case to this court for further consideration in light of one of its recent decisions on § 848 sentencing, Garrett v. United States, 471 U.S. 773, 105 S. Ct. 2407, 85 L. Ed. 2d 764 (1985). Relying on the guidance provided in that opinion, we now conclude that cumulative sentencing for the § 848 conviction and the substantive predicate offenses does not violate the Double Jeopardy Clause and we remand this case to the district court for resentencing consistent with this opinion.
"The Double Jeopardy Clause 'protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.'" Brown v. Ohio, 432 U.S. 161, 165, 53 L. Ed. 2d 187, 97 S. Ct. 2221 (1977), quoting North Carolina v. Pearce, 395 U.S. 711, 717, 23 L. Ed. 2d 656, 89 S. Ct. 2072 (1969) (footnotes omitted). Of these three protections, only the last is relevant here because Dorothy Jefferson was ...