United States v. Jude Somerset Hardesty

977 F.2d 1347 UNITED STATES of America, Plaintiff-Appellee, v. Jude Somerset HARDESTY, Defendant-Appellant. No. 90-30260. United States Court of Appeals, Ninth Circuit. Submitted En Banc Aug. 21, 1992. * Decided Oct. 22, 1992. Stephen R. Sady, Chief Deputy Federal Public Defender, Portland, Or., for defendant-appellant. Baron C. Sheldahl, Asst. U.S. Atty., Portland, Or., for plaintiff-appellee. Appeal from the United States District Court for the District of Oregon. Before: WALLACE, Chief Judge, TANG, PREGERSON, ALARCON, POOLE, CANBY, NORRIS, BEEZER, HALL, BRUNETTI, and FERNANDEZ, Circuit Judges. PER CURIAM: 1 Hardesty appeals from the denial of his motion to reduce his sentence pursuant to 28 U.S.C. § 2255 and former Federal Rule of Criminal Procedure 35(a). He was convicted in federal district court for possession of a sawed-off shotgun in violation of 26 U.S.C. §§ 5861 (d), 5871 and sentenced to ten years' imprisonment. The district court ordered that Hardesty's sentence run consecutively to a state prison sentence that he was serving at the time of his federal conviction. 2 Hardesty filed a motion to correct the sentence. He argued before the district court that…

Hardesty appeals from the denial of his motion to reduce his sentence pursuant to 28 U.S.C. § 2255 and former Federal Rule of Criminal Procedure 35(a). He was convicted in federal district court for possession of a sawed-off shotgun in violation of 26 U.S.C. §§ 5861 (d), 5871 and sentenced to ten years’ imprisonment. The district court ordered that Hardesty’s sentence run consecutively to a state prison sentence that he was serving at the time of his federal conviction.

Hardesty filed a motion to correct the sentence. He argued before the district court that the consecutive sentence was illegal under this court’s decision in United States v. Terrovona, 785 F.2d 767, 769 (9th Cir.1986) (Terrovona), and United States v. Williams, 651 F.2d 644 , 647 n. 2 (9th Cir.1981) (Williams).

The government opposed the motion relying on this court’s earlier decision in United States v. Thornton, 710 F.2d 513 (9th Cir.1983) {Thornton). The district court, after observing that the Terrovona opinion did not cite Thornton , denied the motion. The district court concluded that it was bound by Thornton on the ground that “when two panels reach different conclusions the earlier decision controls,…

dissenting:

I respectfully dissent because I believe that the position set forth in footnote 2 of my opinion in United States v. Williams, 651 F.2d 644 , 647 n. 2 (9th Cir.1981), appropriately balances the interests of both the Attorney General and those of the district court. The Attorney General, through the Bureau of Prisons, has the discretion to designate the place of confinement. 18 U.S.C. § 4082 ; 28 C.F.R, § 0.96. Because this grant of authority precluded the District Court under 18 U.S.C. § 3568 from ordering that a federal sentence run concurrently with a state sentence, I believe it equally prevented the District Court from ordering a consecutive sentence. However, the District Court was free to recommend either situation.

Footnote 2 of Williams sets forth this position. The recommendation of the District Court was invariably followed by the Bureau of Prisons. I believe this approach best accommodated the interests of both the Bureau of Prisons and the District Court. In this way, the District Court accomplished what it wanted and the Attorney General retained the discretion afforded it under section 4082.

I am not persuaded by the majority’s argument that we should…