United States v. Pozsgai

No. 91-1203 (3d Cir. October 16, 1991)

In an unpublished decision, the court affirms the district court's imposition of a prison term on an individual for depositing fill in wetlands without a Federal Water Pollution Control Act § 404 permit, but remands for reconsideration of the fine. The court first holds that it has jurisdiction to review the defendant's claim that the sentence is excessive. Although the court probably lacks the authority under former Federal Rule of Criminal Procedure 35 to consider reducing the sentence imposed on the counts covered by the Sentencing Guidelines, the court treats the motion as a petition for habeus corpus relief. The court declines to revisit the decision of the original panel to uphold the three-year sentence for the pre-Guidelines counts. However, the court reverses the district court's imposition of a $ 200,000 fine and remands for a hearing to determine the defendant's ability to pay as required by 18 U.S.C. §§ 3572 and 3622.

[The prior district court decision is published at 22 ELR 20536. On January 23, 1992, the district court reduced the fine to $ 5,000 based on the defendant's limited ability to pay.]

Counsel for Appellant
Paul D. Kamenar, Daniel J. Popeo
Washington Legal Foundation
1705 N St. NW, Washington DC 20036
(202) 857-0240

Counsel for Appellee
Christopher R. Hall, Walter S. Batty Jr., Ass't U.S. Attorneys
3310 U.S. Courthouse, 601 Market St., Philadelphia PA 19106
(215) 597-2556

Peter R. Steenland Jr., Vicki L. Plaut
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

[22 ELR 20353]

Weis, J.:

Full Text and Opinion^*

In this appeal we conclude that jurisdiction exists under 28 U.S.C. § 2255 to consider the defendant's claim that his sentences of fines and imprisonment were excessive. Because the incarceration claims were rejected on the direct appeal, we will not reconsider them. Defendant on his direct appeal did not raise the failure of the district court to consider his ability to pay the large fine, and therefore we will remand for a hearing on that aspect of the sentence.

A jury convicted defendant on forty counts arising out of violations of the Clean Water Act. 18 U.S.C. §§ 1311(a). Each of the counts represented an incident in which he deposited, or caused to be deposited, non-toxic fill on land that he owned. Defendant had purchased this fourteen acre tract in 1986 after receiving information that at least some of the property was considered by the Corps of Engineers as "wetlands." In those circumstances, defendant was required to obtain a permit before depositing any fill.

Counts 1-14 were for incidents that occurred before enactment of the Sentencing Guidelines, Counts 16-41 were governed by the Guidelines. The district judge sentenced the defendant to three years imprisonment on the pre-Guidelines count and a concurrent sentence of twenty-seven months on the Guidelines counts. In addition, the court ordered defendant to pay $ 5,000 on each count for a total fine of $ 200,000. On appeal, this Court affirmed the conviction and sentence by a Judgment Order. United States v. Pozsgai, 897 F.2d 524 (3d Cir.), cert. denied, U.S. , 111 S. Ct. 48 (1990).

Within the 120 days allowed by former Federal Rule of Civil Procedure 35(b), defendant filed a motion to correct or reduce the sentence. He argued that the prison term and fines were excessive. The district court denied the motion and defendant has appealed.

On appeal, defendant argues that the three year prison term was disproportionate, particularly in view of the non-toxic nature of the fill. He also argues that the fine was unconstitutionally excessive and that the district court failed to make findings on his ability to pay. The government contests our jurisdiction over the post-Guidelines counts, but concedes that the pre-Guidelines counts should be remanded for a hearing on the defendant's ability to pay the fine assessed.

The government did not raise the question of jurisdiction over the post-Guidelines counts in the district court, but contends that because the issue is one of jurisdiction it may be raised at this stage.

Former Federal Rule of Criminal Procedure 35 is applicable to offenses that occurred before November 1, 1987. It provides that a district court may correct an illegal sentence at any time and, if a motion is filed within 120 days after the court of appeals issues its mandate, the district court may correct or reduce the sentence. Former Rule 35 applies to the pre-Guidelines sentence here and because the defendant's motion was timely filed, the district judge could consider it on the merits.

The post-Guidelines counts, however, are governed by revised Rule 35 as included by Congress in the Sentencing Reform Act of 1984, Pub. L. No. 98-473, Title II § 215(b), 98 Stat. 2015. New rule 35 limits the power of the district court to correct a sentence. Subsection (a) requires a district court to correct a sentence that is "determined on appeal under 18 U.S.C. § 3742 [to the Court of Appeals] to have been imposed in violation of law, to have been imposed as a result of an incorrect application of the sentencing guidelines, or to be unreasonable, upon remand of the case to the [district] court —

(1) for imposition of a sentence in accord with the findings of the court of appeals; or

(2) for further sentencing proceedings if, after such proceedings, the court determines that the original sentence was incorrect."¹

Subsection (b) provides that on motion of the government a court "may within one year after the imposition of a sentence, lower a sentence" to reflect a defendant's substantial assistance in other prosecutions.

If a sentence is imposed under the Guidelines, therefore, new Rule 35 eliminates the 120 day period in which the district court was permitted to reconsider and reduce a sentence.² It is doubtful, therefore, that under Rule 35 this Court or the district court has the authority to consider reducing the sentence imposed on the post-Guidelines counts.

The defendant, however, is not limited to relief under the provisions of Rule 35. Because he is in custody, the defendant has available to him the writ of habeas corpus, 28 U.S.C. § 2255. That statue provides for relief when a sentence was imposed in violation of the Constitution or laws of the United States, or otherwise subject to collateral attack.

Although the defendant purported to proceed under Federal Rule of Criminal Procedure 35, we may treat the motion as a petition for habeas corpus relief. As we said in United States v. Flenory, 876 F.2d 10, 11 (3d Cir. 1989), "It would elevate form over substance to hold that [a] motion should be denied for lack of jurisdiction because [it] cited Rule 35 rather than section 2255." See also, United States v. Stumpf, 900 F.2d 842, 844 (5th Cir. 1990); United States v. Zuleta-Molina, 840 F.2d 157, 158 (1st Cir. 1988).

Moreover, the government is in a dubious position to assert lack of jurisdiction. In his brief to the Supreme Court opposing the defendant's request for certiorari, the Solicitor General discussed the contention that the fine was excessive. He wrote, "Because the district court may have sentenced petitioner on the basis of the misapprehension that the court did not have the authority to impose a lesser fine, the $ 200,000 fine may not represent the district court's judgment as to the appropriate fine that should be imposed in this case. Under these circumstances, petitioner may challenge the fine through a collateral attack on the judgment in the district court. If the district court concludes that it imposed the original fine because of a misapprehension about its authority under the statute and the Sentencing Guidelines, the court may decide to impose a lesser fine, or no fine at all, in [22 ELR 20354] which case petitioner's argument under the Excessive Fines Clause will be moot." Brief for the United States in Opposition to the Petition for a Writ of Certiorari at 18, Pozsgai v. United States, U.S. , 111 S. Ct. 48 (1990).

The Solicitor General's brief concluded by arguing that the amount of the fine "in light of the proper interpretation of the statute and the Sentencing Guidelines," id. at 19, should be addressed by the district court in the first instance. The Solicitor General did not distinguish between pre- and post-Guidelines fines as does the government in its brief to this Court. To the contrary, he deliberately included both categories as subject to further action in the district court.

We need not determine here whether that concession would be sufficient to meet the government's objection to reviewing the defendant's post-Guidelines claims under new Rule 35 because habeas corpus is available in this instance.³ We conclude, therefore, that we may review the defendant's contentions that the sentence is excessive.

II.

Defendant contends that the sentence of imprisonment for the pre-Guidelines counts was too severe and amounted to an abuse of discretion. He does not, however, question the incarceration imposed for the post-Guidelines counts.

Defendant's argument is that the three year sentence is one of the harshest ever imposed for an environmental offense and is constitutionally disproportionate under Solen v. Helm, 463 U.S. 277 (1983). These arguments were rejected on direct appeal to this Court. We are not in a position to revisit what the original panel decided. See Todd & Co. v. SEC, 637 F.2d 154, 156-57 (3d Cir. 1980).

III.

The defendant's principal arguments on this appeal are that the fines imposed were draconian and the district court failed to determine his ability to pay as required by 18 U.S.C. § 3572 and 3622. We will not address the excessiveness issue because we are remanding for a hearing to determine the defendant's ability to pay.

The presentence report submitted to the district court stated that the forty counts, of which the defendant stood convicted, called for a mandatory minimum fine of $ 200,000. The government has conceded that statement was erroneous and no fine is mandated.

The presentence report stated that according to data supplied by the defendant, he had a negative net worth of $ 4,638.00 and a negative cash flow of $ 197 per month. Also mentioned was the defendant's wife's dependence on him and her poor health.

The probation officer commented, "Given that he is facing a mandatory $ 200,000 fine in this case, as well as [losing] the Wetlands site property, it will completely devastate his financial future, given his age and earning ability." The probation officer concluded that "the imposition of any fine will have a devastating effect on the defendant and his family. Unfortunately, the statute requires the recommended amount."

In denying the defendant's motion for reduction or correction of sentence, the district court acknowledged "that the fine is not mandatory," but stated that the "combined fine and imprisonment" were necessary for deterrence. The only reference to the defendant's ability to pay was the comment, "according to the presentence report, he owns real estate." The report, however, is not clear on this point since it also shows a substantial mortgage that apparently encumbers all of the realty owned by the defendant.

In any event, the record does not demonstrate that the court considered the factors listed in 18 U.S.C. § 3572 and its predecessor, 18 U.S.C. § 3622. These statutes require consideration of "the defendant's income, earning capacity, and financial resources" as well as "the burden that the fine will impose upon the defendant, any person who is financially dependent on the defendant, or any other person (including a government) that would be responsible for the welfare of any other person financially dependent on the defendant, relative to the burden that alternative punishments would impose." The government has conceded that if we find jurisdiction to consider the Guidelines counts this case should be remanded for a hearing to comply with both statutes.

Moreover, the defendant's conviction is for a violation that was really one of a continuing nature. The indictment setting out forty separate counts exaggerates the actual extent of the offense. The district court recognized that fact by directing concurrent, rather than consecutive, sentences of imprisonment. Similar considerations should be given to the amount, if any, of an appropriate fine.

We suggest that in determining whether a fine should be assessed, or its amount, the district court conduct a full hearing on the considerations listed in 18 U.S.C. §§ 3622 and 3572, rather than limiting itself to the presentence report.

The order of the district court imposing a fine is reversed and the matter is remanded for further proceedings consistent with this opinion. The order as to the sentence of imprisonment is affirmed.

* The court designated this opinion as "NOT FOR PUBLICATION."

1. An amendment to Rule 35 to become effective December 1, 1991 authorizes the district court, within seven days after imposition of a sentence, to correct it if imposed "as a result of arithmetical, technical or other clear error."

2. The new rule also eliminates the provision that authorized a district court to "correct an illegal sentence at any time." It might be questioned whether in the absence of habeas corpus review, Congress could withdraw the power of a court to correct or vacate a sentence that is illegal in the sense that the court had no jurisdiction to impose punishment for conduct that was not criminal when performed, e.g., McNally v. United States, 483 U.S. 350 (1987). That issue is not present here, however, and we need not discuss it.

3. This decision is not contrary to the system of review of sentences mandated under the Sentencing Reform Act. See United States v. Jordan, 915 F.2d 622 (11th Cir. 1990) (Congress' repeal of former Rule 35 and enactment of § 3742 did not modify section 2255).