                                                                                                                           Opinions of the United
1998 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-13-1998

United States v. Murray
Precedential or Non-Precedential:

Docket 97-7196




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Filed May 13, 1998

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 97-7196

UNITED STATES OF AMERICA

v.

MICHAEL MURRAY,
       Appellant

On Appeal From the United States District Court
For the Middle District of Pennsylvania
(D.C. Crim. No. 92-00200-04)

Argued: November 7, 1997

Before: BECKER, ROTH, Circuit Judges, and DIAMOND,
District Judge.*

(Filed May 13, 1998)

       DAVID A. RUHNKE, ESQUIRE
        (ARGUED)
       Ruhnke & Barrett
       47 Park Street
       Montclair, NJ 07042

Counsel for Appellant



_________________________________________________________________

* Honorable Gustave Diamond, United States District Judge for the
Western District of Pennsylvania, sitting by designation.
       DAVID M. BARASCH, ESQUIRE
       United States Attorney
       WILLIAM A. BEHE, ESQUIRE
        (ARGUED)
       Assistant United States Attorney
       Office of the United States Attorney
       Federal Building
       225 Walnut Street
       P.O. Box 11755
       Harrisburg, PA 17108

       Counsel for Appellee

OPINION OF THE COURT

BECKER,** Chief Circuit Judge.

Michael Murray appeals for the second time from a
judgment in a criminal case.1 In his first appeal, a panel of
this court vacated one count of his conviction, affirmed two
others, and remanded for resentencing on the affirmed
counts. Murray now challenges the sentences imposed on
remand. His appeal raises interesting and difficult
questions concerning the contours of the so-called
Sentencing Package Doctrine (the "doctrine") under the
regime of the Sentencing Guidelines. Rejecting Murray's
several contentions, we hold that the district court had the
authority to resentence Murray on the affirmed counts; that
there is no constitutional barrier to the district court
imposing life sentences on those counts; that the district
court did not abuse its discretion by departing from the
applicable guideline range; and that the extent of the
departure was reasonable. We therefore affirm the
judgment.
_________________________________________________________________

** Honorable Edward R. Becker, United States Circuit Judge for the
Third Circuit, assumed Chief Judge status on February 1, 1998.

1. We exercise jurisdiction pursuant to 28 U.S.C. S 1291.

                                 2
I.

Murray was convicted following a jury trial of the
intentional killing of Juan Carlos Bacallo in furtherance of
a Continuing Criminal Enterprise ("CCE"), in violation of 21
U.S.C. S 848(e)(1)(A); conspiracy to distribute in excess of
five (5) kilograms of cocaine in violation of 21 U.S.C. SS 846
and 841(a)(1); and distribution of and possession with the
intent to distribute cocaine in violation of 21 U.S.C.
S 841(a)(1). On January 19, 1996, Murray was sentenced to
a term of life imprisonment for the CCE-related murder and
to two concurrent ten-year sentences on the drug counts.2
Murray timely appealed his convictions, and, in United
States v. Murray, 103 F.2d 310 (3d Cir. 1997) (Murray I), a
panel of this court reversed Murray's conviction on the
murder charge on the ground of trial error.3 The panel was
careful to indicate at various points that the errors did not
require reversal of Murray's drug convictions. At the
conclusion of the opinion, the panel stated:

       For the foregoing reasons, we reverse the judgment of
       conviction and sentence on the murder charge and
       remand for a new trial. We affirm the judgment of
       conviction as to the drug charges and remand for
       resentencing, if appropriate, on those counts.

103 F.2d at 323.

On remand, the government took the position that the
district court could permissibly vacate the concurrent ten-
year terms imposed on the two drug counts and resentence
Murray to life imprisonment -- thus obviating the need (in
practical terms) for a retrial on the murder charge. Murray
objected to this procedure, but the district court proceeded
with the resentencing. A revised presentence report ordered
by the district court advised that the guideline level for
Murray's drug offenses was 34, and that the murder of
_________________________________________________________________

2. Murray was also ordered to pay restitution in the amount of $2,304.00
to the murder victim's family.

3. More specifically, the reversal was based upon the admission of
evidence that the court determined to be inappropriate under
Fed.R.Evid. 404(b) and 403, as well as evidence that contravened
Fed.R.Evid. 608(b).

                               3
Bacallo was relevant conduct which could justify an
upward departure pursuant to U.S.S.G. S 5K2.1 (Death);
and S 5K2.8 (Extreme Conduct). On April 10, 1997, the
district court departed upwards and resentenced Murray to
two concurrent terms of life imprisonment on the drug
counts and imposed a $10,000 fine.

At the resentencing, the district court gave the following
reasons for its departure:

       The Court believes that there is clear and convincing
       evidence that the defendant committed murder. The
       killing of Juan Carlos Bacallo is relevant conduct
       associated with the defendant's offense of conviction
       and is an integral, aggravating circumstance not
       covered by the offense guideline.

       The most analogous guideline to this relevant conduct
       is United States Sentencing Guidelines S 2A1.1 and
       offense level 43. Further, the dangerousness of the
       defendant's conduct, his intent prior to the killing and
       the cruel nature of the killing present the need for a
       consequence and a departure under the United States
       Sentencing Guideline 5K.1 and section 5K2.8 for the
       loss of life caused by the defendant and his extreme
       conduct.

       An upward departure of nine levels is deemed
       reasonable, and the sentence imposed is considered
       necessary after consideration of the nature and
       seriousness of the offense and the need to afford an
       adequate deterrent as required by 18 U.S.C. S 3553.

In addition, the district court entered into the record an
Addendum to Statement of Reasons for the departure
wherein it stated:

       It is noted that because the drug convictions involved
       more than five kilograms of cocaine, 21 U.S.C.
       S 841(b)(1)(A) reflects that the Court must impose a
       sentence of no less than 10 years and can impose life
       imprisonment. While it appears that the court can not
       use the intentional killing in determining the
       defendant's guideline calculations, it is relevant
       conduct and can therefore be used in support of a

                                4
       substantial upward depart at resentencing on the drug
       counts. [See also United States v. Baird, No. 96-1342,
       slip op. (3d Cir. March 19, 1997)]

This appeal followed. The government informed us at oral
argument that it does not intend to retry Murray on the
murder charge if the resentencing on the drug counts is
affirmed.

II.

Murray first contends that the district court was without
authority to resentence him on the drug counts. This
argument is foreclosed by this court's mandate in Murray I.
There the panel "affirm[ed] the judgment of conviction as to
the drug charges and remand[ed] for resentencing, if
appropriate, on those counts." 103 F.2d at 323. While the
wording of the mandate, and in particular the use of the
phrase if appropriate, may be imprecise, there is no doubt
that the prior panel vacated Murray's drug sentences and
remanded for the district court to at least consider
resentencing on the drug counts. Such a mandate does not
impose any additional restriction, other than those provided
by applicable statutes, constitutional provisions, and the
Guidelines, on a district court's ability to fashion de novo a
new sentence on remand.

Because of the mandate, Murray's claim that the district
court lacked the authority to resentence him reduces to an
attack on this court's authority, pursuant to 28 U.S.C.
S 2106 (1997), to vacate the sentences on the drug counts
and remand for resentencing. This argument is derived
from United States v. Busic, 639 F.2d 940 (3d Cir. 1981),
wherein we faced, inter alia, the question whether it was
permissible to vacate a sentence imposed on an
unchallenged count of a multicount conviction where the
conviction on another count was overturned. We
determined that "[i]n such a case, where the sentences were
interdependent, we believe an appellate court, vacating one
of those sentences, can vacate the other sentence even if its
imposition is not specifically raised on appeal." Id. at 947
(emphasis supplied); see also id. at 947 n.10.

                               5
Based on this language, which gave rise to what has
since been termed the sentencing package doctrine, Murray
argues that resentencing is inappropriate in this case since
his drug sentences were ordered to be served concurrently
to his murder sentence, and hence the sentences were not
interdependent. This argument raises interesting and
difficult questions regarding the breadth of the doctrine and
its continued relevance in the era of Guideline sentencing.
However, we need not reach these issues here.4 Unlike the
_________________________________________________________________

4. The sentencing package doctrine originated as a means of justifying
the resentencing of a defendant on all counts of a multicount conviction
where one or more counts were reversed on direct appeal. The rationale
underlying the doctrine was that

        [w]hen a defendant is found guilty on a multicount indictment,
there
       is a strong likelihood that the district court will craft a
disposition
       in which the sentences on the various counts form part of an
overall
       plan. When the conviction on one or more of the component counts
       is vacated, common sense dictates that the judge should be free to
       review the efficacy of what remains in light of the original plan,
and
       to reconstruct the sentencing architecture upon remand, within
       applicable constitutional and statutory limits, if that appears
       necessary in order to ensure that the punishment still fits both
       crime and criminal.

United States v. Pimienta-Redondo, 874 F.2d 9, 14 (1st Cir. 1989). The
sentencing package doctrine was deemed applicable when the sentences
on the underlying counts were interdependent. See e.g., United States v.
Shue, 825 F.2d 1111, 1114 (7th Cir. 1987). However, at the time the
doctrine was announced, and throughout its early years of application,
the Sentencing Guidelines were not yet in place. In the pre-Guidelines
era, the determination whether particular sentences arising from a
multicount indictment were truly "interdependent" did not cause some
courts much concern, as they apparently assumed that interdependence
was a necessary by-product of the virtually unfettered sentencing
discretion of the district court. Other courts, however, still expressed
concern about the application of the doctrine in the context of
concurrent sentences, as we discuss infra.

The question of interdependence is more complex under the
Guidelines. As several of our sister circuits have noted, the Guidelines
have eliminated much of the district court's discretion at sentencing,
thereby altering, though not necessarily eliminating, the concept of a
sentencing package. See United States v. Rodriguez, 112 F.3d 26, 30 (1st
Cir. 1997); United States v. Smith, 103 F.3d 531, 534 (7th Cir. 1996). In
6
defendant in Busic, Murray did challenge his conviction on
the drug counts. The Murray I panel's authority to remand
for resentencing on those counts thus stems directly from

(Text continued on page 9)
_________________________________________________________________

some instances the change has not been that dramatic-- the Guidelines
have simply shifted the power to create an appropriate sentencing
package from the district court to the Guidelines themselves. An example
of this phenomenon is provided by the facts of United States v. Davis,
112 F.3d 118 (3d Cir. 1997), which is representative of the cases
applying the doctrine post-Guidelines.

In Davis, the defendant had been convicted of several drug counts and
one count of using a firearm during and in relation to a drug trafficking
crime in violation of 18 U.S.C. S 924(c). A conviction under S 924(c)
requires, as a matter of law, the imposition of afive year sentence to be
served consecutively to any other term of imprisonment associated with
an underlying drug count. See 18 U.S.C. S 924(c)(1). Moreover, under
U.S.S.G. S 2D1.1(b)(1), the base offense level for crimes involving drugs
must be increased by two levels if "a dangerous weapon (including a
firearm) was possessed." U.S.S.G. S 2D1.1(b)(1). The Guidelines further
direct that this enhancement should not be applied when a sentence
under S 924(c) is also imposed. See U.S.S.G. S 2K2.4, Commentary
Background. Following the Supreme Court's decision in Bailey v. United
States, 516 U.S. 137 (1995), which narrowed the definition of the word
"use" in S 924(c), Davis moved under 28 U.S.C. S 2255 seeking to vacate,
set aside, or correct his sentence. The district court vacated the S
924(c)
sentence and ordered resentencing on the remaining counts. See Davis,
112 F.3d at 120. Davis appealed the district court'sfinding of
jurisdiction to recalculate his aggregate sentence, claiming that the
court's authority under S 2255 to "correct the sentence" only extended to
the specific sentence underlying his conviction under S 924(c).

We disagreed, finding "jurisdiction based on the interdependence of the
counts for Guideline sentencing purposes." Id. at 121. We explained our
holding as follows:

         Clearly, the S 924(c) offense and the underlying offense are
         interdependent and result in an aggregate sentence, not sentences
         which may be treated discretely. If the district court were to
vacate
         the term associated with the S 924(c) count and not resentence on
         the remaining counts, Davis would not receive the two level
         enhancement required for the remaining counts under the
         Sentencing Guidelines and his sentence would not be in conformity
         with the law.

Id. at 121 (citations omitted).
7
The scenario in Davis provides a clear example of interdependence
under the Guidelines since it is evident that the particular guidelines
themselves "contemplate[d] an interdependent relationship between the
sentence for the vacated conviction and the sentence for the remaining
convictions -- a sentence package . . . ." Rodriguez, 112 F.3d at 30. The
relationship between Murray's original sentences on the murder count
and the drug counts is not analogous to that at issue in Davis since the
guidelines applicable to these counts do not expressly contemplate
interdependent sentences. Indeed, there was no barrier to the district
court imposing, at the original sentencing, concurrent life terms on all
counts. Nonetheless, the government makes a plausible argument that
Murray's original sentences were interdependent because the district
court structured those sentences in order to punish Murray for the
intentional killing of Bacallo as part of his drug trafficking crimes.
Thus,
the government submits that the removal of the murder conviction and
the attendant life sentence affected the court's sentencing package. This
approach is supported by the district court's Addendum to Statement of
Reasons wherein the court explains how its sentencing intention had
been affected by the vacatur of the murder conviction and the life
sentence.

The government's argument is rooted in the notion of the sentencing
package doctrine as it existed pre-Guidelines. The government contends
that interdependence arises from the district court's discretion in
crafting an overall sentence designed to punish the criminal and his
conduct rather than from the workings of the Guidelines. Aside from the
possibility that this argument, predicated on a sentencing court's
discretion, may be foreclosed by the Guidelines, it is not apparent that
the elastic notion of interdependence that the government advocates has
ever been supportable under the sentencing package doctrine. Even pre-
Guidelines, courts expressed concern with the application of the doctrine
to concurrent sentences. See McClain v. United States, 676 F.2d 915,
918 (2d Cir. 1982)(McClain II) (applying the doctrine but emphasizing
that "[c]onsecutive sentences were mandatory in this case under section
924(c) and the sentences were truly interdependent" and cautioning that
the opinion was not "addressed to a situation involving concurrent or
non-interlocking sentences. Where the sentencing judge could have
insured against invalidation of a longer term by imposing a higher
sentence for the other offense, vacatur of the shorter term might well be
inappropriate . . . ."). This concern continues post-Guidelines. See
United
States v. Gordils, 117 F.3d 99, 104 (2d Cir. 1997) (holding that McClain
II is still good law post-Guidelines); United States v. McKnight, 17 F.3d
1139, 1145 (8th Cir. 1994) (vacating each of three defendants'

                               8
28 U.S.C. S 2106, which we set forth in the margin.5 The
authority granted by S 2106 is discretionary, and while the
jurisprudence of sentencing, including the concepts
underlying the sentencing package doctrine, serves as a
guide to courts in making the determination whether
remand is appropriate, the courts of appeals are not bound
to apply these concepts in determining whether to remand
for resentencing on counts "lawfully brought before [them]
for review." Here, the panel did not state the reasons
supporting its decision to remand the drug counts for
resentencing. However, even if it had, and we disagreed
with those reasons, the fact is that it has done so, and we
are without authority on this appeal to substitute our views
for those of the Murray I panel.

III.

Turning to the legality of the life sentences imposed on
remand, we find Murray's arguments that his resentencing
violates his due process rights and the prohibition against
double jeopardy to be without merit.6 Murray's due process
_________________________________________________________________

convictions on a false misrepresentation count, but determining that
remand for resentencing on that count was unnecessary since the
sentences "were ordered to be served concurrently to the sentences on
the other counts, now affirmed").

As the foregoing makes clear, the application of the sentencing
package doctrine to the concurrent sentences involved in this case is by
no means a foregone conclusion. However, as we explain, this case does
not turn on an application of the sentencing package doctrine, and thus
we intimate no view on whether the government's broad conception of
interdependence is ultimately supportable -- leaving that decision to
another day.

5. "The Supreme Court or any other court of appellate jurisdiction may
affirm, modify, vacate, set aside or reverse any judgment, decree, or
order of a court lawfully brought before it for review, and may remand
the cause and direct the entry of such appropriate judgment, decree, or
order, or require such further proceedings to be had as may be just
under the circumstances." 28 U.S.C. S 2106 (emphasis supplied).

6. We exercise plenary review over challenges to the legality of a
sentence
imposed by a district court. See United States v. Woods, 986 F.2d 669,
673 (3d Cir. 1993).

                               9
claim is predicated on North Carolina v. Pearce, 395 U.S.
711 (1969). However, since his new sentences on the drug
counts do not exceed the total length of his original
sentence, and we find no evidence of vindictiveness on the
part of the sentencing court, we reject this claim. See Kelly
v. Neubert, 898 F.2d 15, 16 (3d Cir. 1990). Murray's double
jeopardy claim is foreclosed by the fact that there can be no
legitimate expectation of finality in a sentence and
conviction which the defendant appeals. See United States
v. Shue, 825 F.2d 1111, 1115 (7th Cir. 1987) (citation
omitted); see also Pennsylvania v. Goldhammer, 474 U.S.
28, 30 (1985) (double jeopardy clause does not bar
resentencing on counts affirmed on appeal when a sentence
of imprisonment on another count is vacated).

IV.

Finally, Murray argues that the nine-level upward
departure to a base offense level of 43 was not reasonable
and should be reduced by this court.7 We disagree. The
district court properly followed the course charted in United
States v. Kikumura, 918 F.2d 1084 (3d Cir. 1990), for
determining the appropriateness and extent of an upward
departure. The district court found that the United States
established by clear and convincing evidence that Murray
had intentionally killed Bacallo, and that this relevant
conduct associated with Murray's offenses of conviction was
not adequately taken into consideration by the Sentencing
Commission in formulating the Guidelines. See 18 U.S.C.
S 3553(b) (1997); Kikumura, 918 F.2d at 1101 (fact finding
underlying departure of such magnitude that the
sentencing hearing can fairly be characterized as a`tail
which wags the dog of the substantive offense' must be
established at least by clear and convincing evidence).
Having determined that a departure was appropriate, the
_________________________________________________________________

7. We also exercise plenary review over the district court's construction
of the Sentencing Guidelines. See United States v. Bethancourt, 65 F.3d
1074, 1080 (3d Cir. 1995), cert. denied, 116 S. Ct. 1032 (1996). However,
the decision to depart under the Guidelines is reviewed for abuse of
discretion, and deferential review is accorded to the extent of the
departure. See United States v. Baird, 109 F.3d 856, 870, 872 (3d Cir.
1997) (upward departure).

                               10
district court then properly turned to the Guidelines
themselves to determine the extent of that departure. See
id. at 1110-14 (setting out an "analogy to the Guideline
approach" for determining the reasonableness of upward
departures). Finding nothing infirm in the analogy applied,
we determine that the nine level departure was reasonable.

The judgment of the district court will be affirmed.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               11
