                                    PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT
                _____________

                     No. 11-2864
                    _____________

          UNITED STATES OF AMERICA

                           v.

              GEORGE MARTORANO,
                               Appellant
                 _____________

    On Appeal from the United States District Court
         for the Eastern District of Pennsylvania
          District Court No. 2-83-cr-00314-001
    District Judge: The Honorable Gene E. K. Pratter

                 Argued May 17, 2012

     Before: SMITH and FISHER, Circuit Judges
           and STEARNS, District Judge


 The Honorable Richard G. Stearns, United States
District Judge for the United States District Court of
Massachusetts, sitting by designation.
              (Filed: September 5, 2012 )

Andrea G. Foulkes [ARGUED]
Office of United States Attorney
Suite 1250
615 Chestnut Street
Philadelphia, PA 19106
       Counsel for Appellee

Roy E. Black [ARGUED]
Black, Srebnick, Kornspan, & Stumpf
201 South Biscayne Boulevard
Suite 1300
Miami, FL 33131

Marcia J. Silvers
Penthouse One
40 Northwest Third Street
Miami, FL 33128

Theodore Simon
Room 1416
1600 Market Street
Philadelphia, PA 19103
      Counsel for Appellant




                            2
               _____________________

                     OPINION
               _____________________

STEARNS, District Judge.

       George Martorano was sentenced to life
imprisonment without parole after pleading guilty to
nineteen counts related to the wholesale distribution of
drugs. In this appeal, Martorano raises two issues:
whether the District Court imposed an illegal general
sentence; and whether his undifferentiated sentence for
conspiring to distribute drugs and supervising a
Continuing Criminal Enterprise (CCE) violates the
Double Jeopardy Clause. We will affirm the District
Court.

                    BACKGROUND

       On September 19, 1983, a federal grand jury
handed up an indictment accusing Martorano of
distributing    large       quantities     of     cocaine,
methamphetamine, methaqualone, and marijuana. On
June 4, 1984, Martorano pled guilty to all nineteen counts
of the indictment, including conspiracy to distribute
narcotics, in violation of 21 U.S.C. § 846, and
supervising a CCE, in violation of 21 U.S.C. § 848. On
April 26, 1988, after intervening proceedings, Martorano
was sentenced to a general sentence of life imprisonment
                            3
without parole.1 Since 1988, Martorano‟s sentence has
been reviewed by various district court judges and panels
of this Court in response to a succession of post-
conviction motions.2 Presently before this panel is
Martorano‟s appeal from the District Court‟s denial of a
motion filed pursuant to former Federal Rule of Criminal
Procedure 35(a). The District Court had jurisdiction over
the Rule 35(a) motion pursuant to 18 U.S.C. § 3231, and
we have jurisdiction over this appeal pursuant to 28
U.S.C. § 1291.

      1
         Martorano states that he is “believed to be the
longest serving first-time offender for a nonviolent
offense” – having now served nearly 30 years of
imprisonment. Appellant‟s Br. at 9. Martorano notes
that he had no prior criminal record, and that the
government did not seek a sentence of life imprisonment
at his sentencing hearing. He further avers that “when he
was sentenced in 1984, the U.S. Probation Officer‟s
Parole Guideline Worksheet prepared by the probation
officer responsible for [his] Pre-Sentence Investigation
Report provided that [his] parole guidelines dictated a
parole guideline of between 40-52 months.” Id. at 22.
       2
         The lengthy procedural history of this case is ably
described in United States v. Martorano, No. 83–314–1,
2007 WL 3071620 (E.D. Pa. Oct. 19, 2007) (denying an
earlier motion by Martorano to correct his sentence under
Rule 35(a)).
                             4
                      DISCUSSION
       Former Rule 35(a) provided that “the court may
correct an illegal sentence at any time and may correct a
sentence imposed in an illegal manner within the time
provided herein for the reduction of sentence.” When
applicable, Rule 35(a) places on the defendant the burden
of proving the illegality of his sentence.3 United States v.
Woods, 986 F.2d 669, 673 (3d Cir. 1993). This Court‟s
review of a district court‟s denial of a Rule 35(a) motion
is plenary “since the legality of the sentence imposed by
the district court is being challenged.” Id. at 673 (citing
United States v. Kress, 944 F.2d 155, 158 (3d Cir.
1991)).
      We have long expressed (as have other circuit

      3
        As the District Court noted, “former Fed. R.
Crim. P. 35(a) . . . is available to individuals whose
offenses were committed prior to November 1, 1987. In
June of 1984, Mr. Martorano pleaded guilty to a number
of offenses he had theretofore committed. Thus, the
former Rule 35(a) is available to him. That Rule allowed
an individual to bring a motion to correct an illegal
sentence at any time. Because Mr. Martorano‟s motion
addresses only the former Rule 35(a), references to Rule
35(a) in this Memorandum are to the former Rule.”
United States v. Martorano, No. 83–314–1, 2011 WL
2631817, at *1 n.1 (E.D. Pa. June 21, 2011). Such is also
the case here.
                             5
courts) a strong preference for multiple, as opposed to
general, sentences, but without ever holding general
sentences to be illegal per se.4 See United States v. Rose,
215 F.2d 617, 630 (3d Cir. 1954) (“In sentencing the
defendant the trial judge imposed a „lump‟ sentence on
the 5-count indictment instead of dealing with each count
separately. While there exist divergent views on the
subject of such form of sentencing we are strongly of the
opinion that it is highly desirable that the trial judge in
imposing sentence on an indictment containing more than
one count deal separately with each count.”); United
States v. Corson, 449 F.2d 544, 551 (3d Cir. 1971) (en
banc) (“We are aware that this Court has, for good
reason, expressed a dissatisfaction with general sentences
and has declared it „highly desirable that the trial judge in
imposing sentence on an indictment containing more than
      4
          Some of the potential pitfalls of a general
sentence were explained in United States v. Peeke, 153 F.
166 (3d Cir. 1907). In Peeke, the Court held that a five-
year general sentence for a term longer than the
maximum sentence authorized for one of several offenses
of conviction was void to the extent of the excess, noting
that “[s]hould some newly discovered evidence induce
the executive to pardon the prisoner on one or more
counts, how would it be possible to ascertain to what part
of the sentence the pardon applied? To what reduction
from the five-year term would be entitled? To state these
questions is to answer them.” Id. at 168.
                             6
one count deal separately with each count.‟” (quoting
Rose)).

       Martorano, however, argues that his sentence is
now made illegal by this Court‟s more recent decision in
United States v. Ward, 626 F.3d 179 (3d Cir. 2010). In
Ward, the defendant had been given a general sentence of
twenty-five years, a sentence that exceeded the statutory
maximum sentence for three of the five counts to which
he had pled guilty. On appeal, the Ward Court vacated
the sentence and remanded the case, stating:

       [w]e do not know whether the [District]
      Court intended to impose a 25 year sentence
      on each count to run concurrently – which
      would clearly be illegal considering the
      statutory maximums on certain counts – or
      whether the [District] Court had some other
      sentence in mind, and, accordingly, we
      cannot adequately review the sentence. We
      will therefore remand for resentencing.
Ward, 626 F.3d at 184-85.
      Martorano‟s general sentence of life imprisonment
without parole exceeds the statutory maximum for
eighteen of the nineteen counts to which he pled guilty




                            7
(the CCE count being the exception).5 Thus, as the
District Court reasoned, Martorano‟s case is “partially
analogous to Ward, in which the general sentence
imposed by the district court exceeded the maximum
permitted sentence for three of the five counts to which
the defendant had pled guilty, but did not exceed the
maximum for two others.” Martorano, 2011 WL
2631817, at *2. The District Court, however, concluded
that Ward did not apply to Martorano‟s case because
“Ward does not clearly establish the illegality of a
general sentence outside of the context of the Sentencing
Guidelines . . . .”6 Id., at *3.

      We agree with the District Court‟s distillation of
the holding in Ward. The decision in Ward turned on the
unmistakable proscription of general sentences by the
Sentencing Guidelines.       “Section 5G1.2 of the
Sentencing Guidelines indicate that sentencing courts

      5
       At the time of Martorano‟s sentencing, conviction
under the CCE statute was punishable by a maximum
sentence of life imprisonment without parole.
      6
        The Sentencing Guidelines do not apply to
offenses committed prior to November 1, 1987. See
United States v. Rosa, 891 F.2d 1063, 1068-69 (3d Cir.
1989).    Therefore, they have no application to
Martorano‟s case.

                           8
must impose a sentence on each count.” Ward, 626 F.3d
at 184 (emphasis added). Given the clarity of Section
5G1.2‟s prohibitory language, the Ward Court gave little
shrift to the government‟s argument that earlier cases
gave to sanction general sentences in instances in which a
claim of Double Jeopardy might come into play. In a
footnote to Ward, the Court dismissed the argument,
observing that
      [t]he cases upon which the government
      relies, United States v. Xavier, 2 F.3d 1281,
      1292 (3d Cir. 1993), United States v.
      Corson, 449 F.2d 544, 551 (3d Cir. 1971)
      (en banc), and Jones v. Hill, 71 F.2d 932 (3d
      Cir. 1934)[,] did not concern the Sentencing
      Guidelines and are inapposite here. To the
      extent those cases can be read as permitting
      a general sentence on multiple convictions
      to cure a Double Jeopardy problem, the
      Supreme Court has since rejected such an
      approach. See Rutledge v. United States,
      517 U.S. 292, 307 (1996) (requiring vacatur
      of conviction on one of two counts held to
      constitute “same” offense).

       Martorano nonetheless seizes on the word “and” in
the first sentence of footnote 8. “The cases upon which
the government relies . . . did not concern the Sentencing
Guidelines and are inapposite here.” (Emphasis added).
He argues that the word “and” should be read in the
                            9
conjunctive as indicating that the Ward Court found the
three cited cases to be inapposite for reasons other than
the fact that they are not Guidelines cases. However, we
agree with the District Court that “[t]his
hypercompartmentalized reading . . . belies the more
obvious interpretation of the passage,” that as far as the
Ward Court was concerned, non-Guidelines cases had no
bearing on the issue that was before it – the validity of
general sentences under the Sentencing Guidelines.7
       Martorano next argues that his general sentence for
conspiring to distribute drugs and supervising a CCE can
be interpreted as imposing concurrent sentences for both
of those crimes, in violation of the Double Jeopardy
Clause. In support of this argument, Martorano cites
Rutledge v. United States, 517 U.S. 292 (1996), which
held that the crime of conspiracy to distribute drugs in
violation of 21 U.S.C. § 846 is a lesser included offense
of supervising a CCE in violation of 21 U.S.C. § 848 and,
therefore, a district court may not sustain two convictions
and impose separate sentences, even concurrent separate
sentences, on both offenses. See Rutledge, 517 U.S. at
307 (concluding that „“[o]ne of [petitioner‟s] convictions,
as well as its concurrent sentence, is unauthorized
      7
         The most that might be wrung from these cases is
that prior to the adoption of the Guidelines, general
sentences had come into great disfavor, but were not
illegal.
                            10
punishment for a separate offense‟ and must be
vacated.”). However, as the District Court stated
(echoing footnote 8 in Ward),

      [i]f this Court were to apply Rutledge to this
      case, as Mr. Martorano has requested, it is
      hardly certain that it would have any impact
      on Mr. Martorano‟s sentence. As noted
      above, Mr. Martorano‟s CCE offense carried
      a maximum sentence of life imprisonment
      without parole. This is the sentence that he
      received. There is nothing in Rutledge or
      any other case cited by Mr. Martorano that
      would indicate that the appropriate means of
      correcting his sentence under Rutledge
      would be to vacate his CCE sentence as
      opposed to vacating his sentence for the
      lesser included offense of conspiracy.
      Indeed, logically, such a result would be
      inconsistent with the very concept of a
      “lesser included offense.”
Martorano, 2011 WL 2631817, at *3 n.14. We agree
with the District Court that Martorano‟s Rutledge
argument is futile.

        In a final salvage effort, Martorano argues for a
retroactive application of the Ward decision to his case:
“Ward does not announce a new rule of law . . . . Rather,
in this circuit and other circuits, there is a long line of
                            11
cases recognizing that general sentences like that
imposed upon Mr. Martorano are improper and illegal.”8
Appellant‟s Reply at 10. We agree with Martorano to the
extent that Ward did not create a new rule of law; it
simply pointed to a binding procedural rule established
by the Sentencing Guidelines. The fact remains that

      8
        Martorano argues that even if this Court were to
find that Ward announced a new rule categorically
banning general sentences, we need not independently
consider the issue of its retroactivity because the instant
Rule 35(a) motion is a motion in the original case
undertaken as a direct appeal, and is therefore not a
collateral attack. See Appellant‟s Br. at 19 (“[W]here a
defendant relies upon a new case in support of his former
Rule 35(a) motion to correct his illegal sentence, the new
case must be considered by the court without the need for
any analysis of whether that new case should be
retroactive.”) (citing United States v. Shillingford, 586
F.2d 372, 375 (5th Cir. 1978)). The District Court
rejected this argument, stating: “[w]hether or not this is
an accurate summary of Shillingford, this is not the law
in the Third Circuit.” Martorano, 2011 WL 2631817, at
*2 n.12 (citing Woods, 986 F.2d at 681 (holding that a
new Supreme Court opinion did not apply retroactively
to the defendant‟s sentence because he had not shown
that he suffered “a complete miscarriage of justice”)).
We agree with the District Court‟s analysis.

                            12
Martorano was sentenced prior to the adoption of the
Guidelines; thus neither Section 5G1.2 nor Ward have
any application to his case.

       While we remain of the opinion that general
sentences have out-lived their usefulness, Martorano has
failed to meet his burden of demonstrating an entitlement
to relief. We have never held that, in the pre-Guidelines
context, general sentences are per se illegal. And we
agree with the District Court that Ward did not change
the result in Martorano‟s case.9

       Consequently, we will affirm the order of the
District Court.




      9
         United States v. Peeke, the century-old case cited
by Martorano, could be read to the contrary. However,
subsequently in Jones v. Hill, decided in 1934, we
specifically rejected the quoted dicta in Peeke and noted
that “[t]he great weight of authority in the federal courts
holds that . . . a general or gross sentence may be
imposed . . . so long as it does not exceed the aggregate
of the punishments that could have been imposed on the
several counts.” 71 F.2d at 932.
                            13
