JOSEPH D. WHITE, PETITIONER V. UNITED STATES OF AMERICA No. 90-7151 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Third Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 1a-7a) is unreported, but the judgment is noted at 919 F.2d 138 (Table). JURISDICTION The judgment of the court of appeals was entered on October 5, 1990. A petition for rehearing was denied on November 20, 1990. The petition for a writ of certiorari was filed on Monday, February 19, 1991. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the district court violated petitioner's rights under the Due Process Clause or the Double Jeopardy Clause when it resentenced him to correct an illegal sentence. STATEMENT Petitioner pleaded guilty in the United States District Court for the Middle District of Pennsylvania to receipt and possession of a firearm after being convicted of a felony, in violation of 18 U.S.C. 922(g)(1). He was sentenced to 15 years' imprisonment. The court of appeals affirmed. Pet. App. 1a-7a. 1. A two-count indictment returned in February 1989 charged petitioner with receiving a firearm after being convicted of a felony, in violation of 18 U.S.C. 922(g)(1), and with possession of the same firearm after being convicted of a felony, also in violation of 18 U.S.C. 922(g)(1). Along with the indictment, the government filed a notice of intent to seek an enhanced sentence under the Armed Career Criminal Act, 18 U.S.C. 924(e)(1), which provides for a minimum sentence of 15 years' imprisonment when a defendant convicted under Section 922(g) has three previous convictions for violent felonies or serious drug offenses. /1/ Pet. App. 2a. In April 1989, petitioner entered a plea of guilty to both counts of the indictment. Pet. App. 2a. During the plea proceeding in June 1989, the district court advised petitioner that his sentence might be enhanced because of his prior convictions. C.A. App. 21. The court explained that the law concerning the applicability of the enhancement provision was unsettled, and that if the court declined to impose the 15-year sentence, the government "may elect to take an appeal to a higher court." Id. at 21-22. In that case, the court told petitioner, the court of appeals might reverse, and "it's possible that you would be returned to this Court for the imposition of the mandatory sentence of 15 years." Id. at 22. Petitioner acknowledged that he understood. Ibid. The court emphasized that it was important that petitioner understood that the government had a right to appeal, "because it makes a heck of a lot of difference as to the punishment that will be imposed." Ibid. He repeated that "the point is they (i.e., the government) have a right to appeal anything that we ultimately conclude in your case." Id. at 22-23. Petitioner again acknowledged that he understood. Id. at 23. The district court sentenced petitioner to 14 months' imprisonment. In declining to sentence petitioner under the Armed Career Criminal Act, the court apparently relied on the plurality opinion of Chief Judge Gibbons in United States v. Balascsak concluded that a defendant is not subject to the enhanced sentencing provision of the Armed Career Criminal Act if he has not been convicted of two predicate offenses before committing a third offense. /2/ Pet. App. 3a. The government appealed petitioner's sentence, contending that petitioner should have been sentenced under the Armed Career Criminal Act. The court of appeals agreed and remanded for resentencing. C.A. App. 75-85. The court rejected petitioner's claim that it lacked jurisdiction to review his sentence, holding that the appeal was authorized by 18 U.S.C. 3742(b), which permits the government to seek appellate review of a sentence "imposed in violation of law." C.A. App. 79-81. Citing its decision in United States v. Schoolcraft, 879 F.2d 64, 72-73 (3d Cir.), cert. denied, 110 S. Ct. 546 (1989), which was decided shortly after petitioner was sentenced, the court ruled that petitioner's prior crimes need not be separated by intervening convictions to qualify as predicated offenses under the Armed Career Criminal Act. On remand, the district court sentenced petitioner to 15 years' imprisonment. Pet. App. 3a-4a. 2. The court of appeals affirmed. Pet. App. 1a-7a. On appeal, petitioner argued that he was denied due process by the resentencing because it frustrated his expectation of finality in the original sentence. The court of appeals rejected this claim as "legally frivolous," explaining that "a defendant cannot have a legitimate expectation of finality in an illegal sentence." Pet. App. 6a. The court also rejected petitioner's claim that because he had fully served the initial 14-month sentence before the 15-year sentence was imposed, the resentencing violated his rights under the Double Jeopardy Clause. Observing that "(t)he original sentence was contrary to (the Armed Career Criminal Act) and hence illegal," the court concluded that "resentencing to correct an illegal sentence does not implicate double jeopardy rights." Pet. App. 7a. ARGUMENT Petitioner renews his contentions (Pet. 7-12) that the resentencing violated his rights under the Due Process and Double Jeopardy Clauses of the Fifth Amendment. Because petitioner had no legitimate expectation of finality in his initial sentence, the court of appeals correctly rejected these contentions. When a statute authorizes the government to seek appellate review of the sentence imposed in a criminal case, the defendant "has no expectation of finality in his sentence until the appeal is concluded or the time to appeal has expired." United States v. DiFrancesco, 449 U.S. 117, 136 (1980). See also Pennsylvania v. Goldhammer, 474 U.S. 28, 30 (1985). Petitioner's assertion (Pet. 9, 11) that the government had no statutory right to appeal his sentence is incorrect. As the court of appeals concluded in its decision vacating petitioner's original sentence, appellate review of that sentence was authorized by 18 U.S.C. 3742(b), which permits the government to appeal a sentence "imposed in violation of law." Moreover, the district court specifically informed petitioner before he entered his guilty plea that the government had the right to appeal any sentence imposed and that such an appeal could result in resentencing and the imposition of a 15-year sentence. Thus, petitioner had no legitimate expectation of finality in his original sentence. /3/ Petitioner contends, however, (Pet. 9, 12) that he had a legitimate expectation of finality in his initial sentence because that sentence was legal at the time it was imposed. Even if petitioner were correct in asserting that his original sentence conformed to the law of the circuit then in effect, he suggests no reason why the court of appeals should not have applied its subsequent decision in Schoolcraft to cases on direct appeal. In any event, petitioner's argument is based on a faulty premise: petitioner's assertion (Pet. 9) that his original sentence was "imposed in accordance with then prevailing Third Circuit precedent" is incorrect. At the time of petitioner's sentencing, the question whether a defendant's prior crimes must be separated by intervening convictions to qualify as predicate offenses under the Armed Career Criminal Act had not been resolved by the Third Circuit. See note 2, supra; C.A. App. 78 ("(W)hen (petitioner) was sentenced on June 14, 1989, this issue had not yet been decided in our circuit."). Under Schoolcraft, which did resolve this issue, petitioner's original sentence was contrary to the Armed Career Criminal Act and therefore illegal. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General NINA GOODMAN Attorney MAY 1991 /1/ Petitioner was convicted of burglary in 1984 and two counts of unlawful delivery of a controlled substance in 1987. C.A. App. 10-11. The two drug offenses occurred on January 14, 1986, and July 3, 1986; he was convicted of both offenses simultaneously. /2/ Five judges joined Judge Gibbons's opinion in Balascsak. 873 F.2d at 674-684. Five other judges dissented, concluding that crimes need not be separated by intervening convictions to qualify as predicate offenses under the Armed Career Criminal Act. Id. at 685-688. Judge Becker concurred in the judgment, but agreed with the dissenters that intervening convictions were not required. Id. at 684-685. Thus, the en banc court was divided 6-6 on this issue. See United States v. Schoolcraft, 879 F.2d 64, 72-73 (3d Cir.), cert. denied, 110 S. Ct. 546 (1989). Schoolcraft held that convictions may be counted as predicate offenses under ACCA as long as "the criminal episodes underlying the convictions were distinct in time." 879 F.2d at 73. /3/ The fact that petitioner had fully served his original sentence while the government's appeal was pending did not confer any greater expectation of finality in that sentence. See Jones v. Thomas, 491 U.S. 376 (1989) (defendant who had satisfied shorter of two consecutive sentences that could not both lawfully be imposed was not entitle to release; rather, defendant's double jeopardy rights were fully vindicated by order vacating shorter sentence and crediting time served against longer sentence).