                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-11-2008

USA v. Washington
Precedential or Non-Precedential: Precedential

Docket No. 07-1523




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                                      PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT


             Nos. 07-1523, 07-1884 & 07-2541


            UNITED STATES OF AMERICA,

                             v.

              RAYMOND WASHINGTON,
                  a/k/a Talib Alim,

                         Raymond Washington,
                              Appellant

            UNITED STATES OF AMERICA,

                             v.

         RAYMOND EDWARD WASHINGTON,
                 a/k/a Talib Alim,
               a/k/a Kennard Gregg,

                     Raymond Edward Washington,
                             Appellant


     IN RE: RAYMOND EDWARD WASHINGTON.
                 a/k/a Talib Alim,
               a/k/a Kennard Gregg,

                     Raymond Edward Washington,
                             Petitioner


On Appeal from the Order of the United States District Court
         for the Eastern District of Pennsylvania
                    (No. 04-cr-00103)
           District Judge: Honorable John R. Padova

On Appeal from the Judgment of the United States District Court
            for the Eastern District of Pennsylvania
                       (No. 06-cr-00460)
          District Judge: Honorable Stewart Dalzell

               On Petition for Writ of Mandamus
             (Related to E.D. Pa. No. 04-cr-00103)


                   Argued: October 27, 2008

    Before: SLOVITER, GREENBERG, Circuit Judges, and
               IRENAS,* Senior District Judge.

                  (Filed: December 11, 2008)


David L. McColgin, Esq. (Argued)
Maureen Kearney Rowley, Esq.
Federal Community Defender Office for the Eastern District of
Pennsylvania
Suite 540 West - Curtis Center
601 Walnut Street
Philadelphia, PA 19106

Counsel for Appellant

Patrick L. Meehan, Esq.
Robert A. Zauzmer, Esq.
Stephen A. Miller, Esq. (Argued)
Office of the United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106




      *
        Honorable Joseph E. Irenas, Senior United States District
Judge for the District of New Jersey, sitting by designation.

                               2
Counsel for Appellee

                        _____________
                          OPINION




IRENAS, Senior United States District Judge.

        This case arises from two consolidated appeals and a
Petition for Writ of Mandamus brought by Raymond E.
Washington, a/k/a Talib Alim, a/k/a Kennard Gregg. Number
07-1884 is an appeal on Double Jeopardy grounds of the district
court’s (Padova, J.) order vacating Washington’s sentence for
dealing counterfeit currency and scheduling a date to resentence
him. Number 07-2541 is a Petition for Writ of Mandamus
and/or Prohibition to Bar Second Sentencing, seeking to prevent
the district court (Padova, J.) from resentencing Washington.
Finally, No. 07-1523 is an appeal from Washington’s conviction
and sentence before a second district court (Dalzell, J.), for
making false statements in the course of the earlier counterfeit
currency case before Judge Padova. For the reasons set forth
below, we issue a writ of mandamus directing the district court
(Padova, J.) to vacate his order of March 20, 2007, which
vacated the original sentence in the counterfeiting case, and we
reverse the district court’s (Dalzell, J.) sentence for the false
statements conviction and remand for resentencing. We dismiss
Washington’s Double Jeopardy appeal as moot.

                                I.

                               A.

       In December 2003, the United States Secret Service
learned that an individual known as “Kennard Gregg” was
passing counterfeit currency at the Veterans Affairs Medical
Center in Philadelphia. The person in question was in fact
Appellant, Raymond E. Washington (“Washington”), who was
using Kennard Gregg’s Veterans Affairs card to receive
methadone treatment from the VA Medical Center. On January

                                3
28, 2004, Washington was arrested for knowingly selling
counterfeit federal reserve notes in violation of 18 U.S.C. § 473.
At the time of his arrest, Washington identified himself to the
United States Secret Service as “Kennard Gregg” and provided
Kennard Gregg’s date of birth and Social Security number. He
signed a Miranda waiver, statement, and Waiver of Right to
Speedy Trial using the name “Kennard Gregg,” or initials
“K.G.” Washington also told Pretiral Services that he was
“Kennard Gregg” following his arrest.1

       On March 22, 2004, Washington, still using the name
“Kennard Gregg,” pled guilty to Information No. 04-103
charging him with violating 18 U.S.C. § 473. During the plea,
Washington was sworn in under the name “Kennard Gregg,”
entered the actual plea in that name, and responded to that name
or acknowledged to the court that he was “Kennard Gregg” no
fewer than nine times.

       On June 23, 2004, Judge Padova sentenced Washington
(under the name “Kennard Gregg”) to a term of imprisonment of
six months, three years of supervised release, restitution of $350,
and a special assessment of $200. During the sentencing
hearing, Washington was again sworn in under the name
“Kennard Gregg,” and was warned that his answers “would be
subject to the penalties of perjury, or of making a false
statement, if [he did] not tell the truth.” Judge Padova relied on
the presentence investigation report prepared by United States
Probation Office. Throughout the presentencing investigation,
Washington provided a mix of his own biographical information
and what he knew about the real Kennard Gregg. Based on the
information obtained, “Gregg’s” criminal history category was
two and the total offense level was nine, yielding a Sentencing
Guidelines range of six to twelve months. Had Washington’s
criminal history been properly calculated using his true record,


       1
         While fingerprint cards generated by both the United
States Secret Service and the United States Marshals Service were
sent to the FBI, there is, as of yet, no explanation why
Washington’s true identity was not discovered at that time.

                                 4
his criminal history category would have been four and his
offense level nine, yielding a Guidelines range of twelve to
eighteen months. Again, during the sentencing hearing
Washington responded to the court under the name “Gregg” no
fewer than five times.

       Washington appealed his sentence, still using the name
“Kennard Gregg,” arguing that the restitution order violated the
holding in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738,
160 L.Ed. 2d 621 (2005). The appeal was initially argued on
June 8, 2005, and then was consolidated with two other cases
and reheard en banc on November 1, 2005. We ultimately
rejected Washington’s argument. See United States v. Leahy,
438 F.3d 328 (3d Cir. 2006) (en banc); United States v. Gregg,
169 Fed. App’x 109 (3d Cir. 2006). Washington then filed a
petition for writ of certiorari with the United States Supreme
Court which was denied. Gregg v. United States, 127 S.Ct. 660,
166 L.Ed. 2d 547 (2006). Washington used the name “Kennard
Gregg” throughout all of these proceedings.

       At the time of his arrest on the counterfeiting charge,
Washington was the subject of a state parole warrant issued on
July 18, 1995, after he had absconded while on parole from a
New Jersey conviction. He had remained a fugitive until his
federal arrest.

       The United States Bureau of Prisons discovered
Washington’s true identity while he was serving his federal
sentence. The State of New Jersey learned that Washington was
in federal custody, and on July 26, 2004, issued a fugitive
warrant. Upon completing his federal term of incarceration, he
was released to New Jersey authorities on January 3, 2005, and
remained in custody in New Jersey until his release on December
12, 2005.

       Following his release from New Jersey custody, on
January 11, 2006, Washington met with probation officer Tomas
Adamczyk. It was at this point that Washington disclosed his
true identity to Mr. Adamczyk in order to avoid spending 30



                               5
days in an in-patient mental health program.2 Washington came
clean to Mr. Adamczyk, explaining that Gregg was someone he
knew and that he used Gregg’s VA card and personal
information (with Gregg’s permission) to get free methadone
treatment because Washington was not a veteran. Washington
admitted using the false name to avoid the outstanding warrant
stemming from the 1995 New Jersey parole violation. He
further admitted that the biographical information he had
provided before was a mix of what he knew about Gregg and his
own. Finally, Washington admitted to knowing that the criminal
history in the presentence report was Gregg’s and not his.

        On July 17, 2006, after learning this information, the
government moved to vacate the original sentence and sought
resentencing on the ground that the original sentence was based
on false representations to the court. Washington argued that the
district court lacked jurisdiction to alter the sentence and that a
second sentencing would violate the Double Jeopardy Clause.
The court found that it had the “inherent power to vacate
judgments procured by fraud,” and that Washington’s double
jeopardy rights would not be violated by resentencing. United
States v. Gregg, No. 04-103, 2006 WL 2850564, at *3, *4 (E.D.
Pa. Oct. 3, 2006). Therefore, the court ordered an evidentiary
hearing to determine if Washington had actually perpetrated
fraud on the court. Id. at *5. Following the evidentiary hearing,
on March 20, 2007, the court concluded that Washington had
perpetrated fraud on the court, vacated Washington’s sentence,
and scheduled a resentencing (which has been stayed pending
this appeal). United States v. Gregg, No. 04-00103, slip op. at 1




       2
         Mr. Adamczyk had been assigned to Washington’s case
because he specialized in probation cases with mental health
concerns, and the real Kennard Gregg had a history of mental
illness. Additionally, at the March 22, 2004 plea, Washington told
the court that he was under the care of a psychiatrist and taking
“Prozac, Treadon, Tresadine and Rosadern or something like that,
for hearing and seeing things.”

                                 6
(E.D. Pa. Mar. 20, 2007).3

                                B.

      While proceedings were pending before Judge Padova,
Washington was indicted on September 5, 2006, on three counts
of making false statements in violation of 18 U.S.C. § 1001 by

       knowingly and willfully ma[king] materially false,
       fictitious, and fraudulent statements and representations
       in that defendant WASHINGTON represented that his
       name was “Kennard Gregg,” the name of another
       individual known to defendant WASHINGTON, and
       provided a sworn statement [and signed documents] using
       the name “Kennard Gregg,” when, as the defendant knew,
       his name was and is RAYMOND WASHINGTON.

This indictment covered the statements made to the United
States Secret Service (Count I), the United States Pretrial
Services Office for the Eastern District of Pennsylvania (Count
II), and the United States Probation Office for the Eastern


       3
         The district court’s memorandum opinion stated:
       We find that Defendant intentionally provided false
       information to the Court in connection with his sentencing.
       Defendant intentionally and continuously used the identity
       of Kennard Gregg following his arrest in order to avoid a
       warrant for his arrest on a New Jersey probation violation.
       Defendant intentionally provided false information
       regarding his personal and family history to the probation
       officer and to this Court during his guilty plea and
       sentencing hearings, information that we considered in
       connection with Defendant’s sentencing. We conclude that
       Defendant’s sentence was based on fraudulent information
       submitted by Defendant.
United States v. Gregg, No. 04-00103, slip op. at 5 (E.D. Pa. Mar.
20, 2007). The district court ordered the name in the caption of the
case be amended to “Raymond Edward Washington, a/k/a Talib
Alim, a/k/a Kennard Gregg.” Id. at 1.

                                 7
District of Pennsylvania (Count III). On November 16, 2006,
Washington pled guilty to all three counts before Judge Dalzell.

       The sentencing hearing took place on February 20, 2007.
Without objection, the court adopted the presentence
investigation report (PSR) as the findings of the court. The PSR
found the total offense level to be four and the criminal history
category to be five, with a resulting Guidelines range of four to
ten months.

        The court took judicial notice of all the instances in which
Washington had used the name “Kennard Gregg,” including a
signed bond and affidavit before the magistrate judge, his guilty
plea and sentencing before Judge Padova, the affidavit opposing
the Motion to Vacate Sentence, and the Motion to Stay Pending
Appeal. The court also recounted the number of federal judges
to whom Washington lied, naming all the judges of this Court
sitting en banc and the Supreme Court Justices who denied the
writ of certiorari.4 The court suggested, and later found, that
each was an uncharged violation of 18 U.S.C. § 1001. The court
stated that, “I’m hard put to think of what could be worse in this
kind of violation of this particular statute.” In noting the need
for deterrence, the court stated:

       That’s rather important here, isn’t it; that people, I mean,
       if somebody could have the wholesale protracted
       deception of the entire, literally all four, if you want to
       consider magistrates judges, a level, all four levels of the
       federal judicial system, of lying on the most material of
       fact. If you got four months for that, that would be a joke,
       in view of that, wouldn’t it? . . . It would have virtually no
       deterrent effect.

       The court took a brief recess to print out the docket
entries from the appeal in United States v. Kennard Gregg, as


       4
         At the time of the rehearing en banc, now Justice Alito was
still a member of the Court of Appeals, and therefore did not
participate in the consideration of the petition for writ of certiorari.

                                   8
well as a Westlaw KeyCite showing the denial of the writ of
certiorari. It concluded that Washington, through his deception,
had benefitted “to the tune of criminal history two versus
criminal history five, to say nothing of the open matter in New
Jersey.” 5 In addition to Washington’s prior convictions, the
court also took note of his seven probation and parole violations
(with another violation pending) suggesting that Washington
would not be amenable to supervision.

      After hearing from defense counsel and Washington
himself, the court considered the Guidelines and the other §
3553(a) factors in deciding on a sentence. It found that “it is
undisputed that the advisory guidelines range is four to ten
months.” The court then reiterated all of the federal judges to
whom Washington misrepresented his identity under oath.

              As violations of 18 U.S.C. 1001 go, as I said to the
       prosecutor, so I say now, as a finding, I cannot imagine a
       more serious violation of this statute, in that a total of 22
       federal judges were actively misled into thinking this
       defendant was someone other than the person he was
       impersonating. And, therefore, 22 federal judges were
       actively misled.
              As the prosecutor rightly points out, this goes to
       the very heart of what the federal judiciary is all about,
       which is the quest for truth and to deal with reality and
       that most assuredly didn’t happen here.
              So this was as serious as it conceivably could be in
       violating this statute.

The court also found that there were not any mitigating factors,
and that there is a need to protect the public from further crimes
of the defendant. The court concluded:




       5
        Judge Dalzell was relying on the PSR from the case before
him, and not the one from the case before Judge Padova, which
correctly noted that Washington would have had a criminal history
of four had the correct information been given.

                                 9
       So, I will, under all of these circumstances, I should also
       stress the need to deter others from such egregious,
       egregiously material misleading federal judges in their
       work, that a sentence with in the advisory guideline range
       would be counterproductive, and indeed would encourage
       the kind of conduct that is just so off the chart as we have
       seen here.

Judge Dalzell sentenced Washington to five years imprisonment
(the statutory maximum), three years of supervised release, a
fine of $250, and a special assessment of $300.

                                II.

        The district court’s order vacating the sentence constitutes
a final appealable decision for the purposes of considering
questions of Double Jeopardy under the “collateral order
doctrine” and thus we have jurisdiction pursuant to 28 U.S.C. §
1291. See Abney v. United States, 431 U.S. 651, 662, 97 S.Ct.
2034, 2042, 52 L.Ed. 2d 651 (1977). We have jurisdiction to
issue a writ of mandamus pursuant to 18 U.S.C. § 1651. We
exercise plenary review over questions of law. United States v.
Hull, 456 F.3d 133, 137 (3d Cir. 2006). A writ of mandamus
requires Appellant to show a clear error of law, that will cause
irreparable injury, and that no other adequate means of relief
exists. United States v. Wexler, 31 F.3d 117, 128 (3d Cir. 1994).

       We have jurisdiction to review a sentence imposed on the
defendant by the district court pursuant to 18 U.S.C. § 3742 and
28 U.S.C. § 1291. We review a district court’s sentence under
an abuse of discretion standard. United States v. Wise, 515 F.3d
207, 217 (3d Cir. 2008).

                                III.

       The district court (Padova, J.) concluded that it possessed
the “inherent power” to vacate its own judgment when the
judgment was procured by fraud on the court, and furthermore
that such “inherent power” was not limited by 18 U.S.C. §
3582(c) or Federal Rule of Criminal Procedure 35. Gregg, 2006

                                10
WL 2850564, at *1-3. However, no such “inherent power”
exists, and to the extent that it might have at one point existed,
such power has clearly been abrogated by both statute and rule.
Because the district court’s reliance on such power was a clear
error of law, a writ of mandamus will be issued.

                                 A.

       The theory that a federal court has the inherent power to
vacate its own judgments when they have been procured by
fraud was recognized in Hazel-Atlas Glass Co. v. Hartford-
Empire Co., 322 U.S. 238, 64 S.Ct. 997, 88 L.Ed. 1250 (1944),
and again in Chambers v. NASCO, Inc., 501 U.S. 32, 111 S.Ct.
2123, 115 L.Ed. 2d 27 (1991). In Chambers, the Supreme Court
held a federal court has the inherent power “to vacate its own
judgment upon proof that a fraud has been perpetrated upon the
court.” Id. at 44, 111 S.Ct. at 2132. The Court explained:

       This “historic power of equity to set aside fraudulently
       begotten judgments” is necessary to the integrity of the
       courts, for “tampering with the administration of justice
       in [this] manner . . . involves far more than an injury to a
       single litigant. It is a wrong against the institutions set up
       to protect and safeguard the public.”

Id. (quoting Hazel-Atlas, 322 U.S. at 245-46, 64 S.Ct. at 1001)
(internal citation omitted). The Court acknowledged that lower
federal courts’ inherent powers could be limited by statute and
rule because those courts were created by an act of Congress. Id.
at 47, 111 S.Ct. at 2134. “Nevertheless, ‘we do not lightly
assume that Congress has intended to depart from established
principles’ such as the scope of a court’s inherent power.” Id.
(quoting Weinberger v. Romero-Barcelo, 456 U.S. 305, 313, 102
S.Ct. 1798, 1803, 72 L.Ed. 2d 91 (1982)).

       However, both Hazel-Atlas and Chambers are civil




                                 11
cases.6 In the criminal context, the Supreme Court has held that
district courts lack “inherent supervisory power” to enter an
untimely judgment of acquittal sua sponte when doing so is in
clear contradiction of Federal Rule of Criminal Procedure 29(c).
Carlisle v. United States, 517 U.S. 416, 425-28, 116 S.Ct. 1460,
1466-67, 134 L.Ed. 2d 613 (1996). The Court explained,
“[w]hatever the scope of this ‘inherent power,’ however, it does
not include the power to develop rules that circumvent or
conflict with the Federal Rules of Criminal Procedure.” Id. at
426, 116 S.Ct. at 1466. The Court recognized its holding in
Chambers, but distinguished it “not only because of the clarity of
the text [of Rule 29(c)], but also because we are unaware of any
‘long unquestioned’ power of federal district courts to acquit for
insufficient evidence sua sponte, after return of a guilty verdict.”
Id. Likewise, this Court is unaware of “any ‘long unquestioned’
power of federal district courts” to vacate a judgment procured
by fraud in the criminal context. Id.

        In vacating Washington’s sentence, the district court
relied extensively on the Seventh Circuit’s holding in United
States v. Bishop, 774 F.2d 771 (7th Cir. 1985), and our holding
in United States v. Kendis, 883 F.2d 209 (3d Cir. 1989).
However, such reliance was misplaced. In Bishop, the
government moved to vacate an order which modified Bishop’s
federal sentence to run concurrently with his state sentence, after
it discovered that the modification had been procured by the
defendant’s fraud. Bishop, 774 F.2d at 772-73. The district
court held a hearing, found that Bishop had intentionally misled
the court, vacated its earlier order reducing his sentence, and
reimposed the original sentence of three years. Id. at 773.
Bishop appealed, arguing both that the court was without
jurisdiction because the modification was sought outside of the
120 day period then provided by Rule 35(b) 7 and that it violated

       6
        While Federal Rule of Civil Procedure 60(b)(3) effectively
codifies the rule of Hazel-Atlas, there is no corresponding Federal
Rule of Criminal Procedure.
       7
       Bishop was decided under the old Federal Rule of Criminal
Procedure 35, and prior to 18 U.S.C. § 3582 coming into effect. As

                                12
the Double Jeopardy Clause. Id.

       The Seventh Circuit rejected Bishop’s Rule 35(b)
argument, concluding that the fact that Hazel-Atlas was a civil
case “does not change the result.” Id. at 774 n.5. “It is the
power of the court to correct the judgment gained through fraud
which is determinative and not the nature of the proceeding in
which the fraud was committed.” Id. But the court did not
elaborate on its reasoning, and only cited Trueblood Longknife v.
United States, 381 F.2d 17 (9th Cir. 1967), where the court had
revoked probation as a result of discovering fraud.

        Prior to the 1985 holding in Bishop, federal courts had
been sentencing criminal defendants for nearly 200 years, and
we can find no body of law recognizing a federal court’s
inherent power to vacate a sentence at some indeterminate time
after the sentence is rendered on the basis of a fraud occurring at
the time of sentencing.8 We are unpersuaded that a case from
another circuit, based on unsupported assertions of past


discussed below, Part III.B infra, the structure of Rule 35 has been
fundamentally changed since Bishop was decided.
       8
         One district court has also held that “[t]he authority of the
Court to correct judgments obtained by fraud applies to criminal,
as well as to civil cases, and is not limited by Rule 35(b) of the
Federal Rules of Criminal Procedure.” United States v. Gray, 708
F. Supp. 458, 460 (D. Mass. 1989). However, Gray only cites
Bishop.
        Recently, another district court asked the Eighth Circuit to
remand a case so that it could vacate the sentence it imposed based
on the defendant’s misrepresentations and resentence the defendant
during the pendency of his appeal, citing Bishop for the “inherent
power to correct judgments obtained through . . . intentional
misrepresentation.” United States v. Fincher, No. 06-50064, 2007
WL 2177062, at *9-10 (W.D. Ark. Jul. 27, 2007). In denying that
request, the Eighth Circuit questioned “whether the district court
has jurisdiction to resentence a defendant in the absence of
statutory authority to do so.” United States v. Fincher, 538 F.3d
868, 878 (8th Cir. 2008).

                                 13
precedent, should form the basis of such a fundamental
expansion of judicial powers.9

        The district court also relied on our decision in United
States v. Kendis, where the defendant was facing five years in
prison for bank fraud. 883 F.2d 209 (3d Cir. 1989). However,
the trial judge sentenced him to six months in prison followed by
five years probation. Id. at 210. Unknown to the court, Kendis
continued to perpetrate other bank frauds after his plea, both
before and after his sentencing, and Kendis was subsequently
charged with five additional counts of bank fraud. Id. As a


       9
          The government attempts to demonstrate the historical
existence of such a power by relying on two state court decisions:
Goene v. State, 577 So. 2d 1306 (Fla. 1991) and State v. Foster,
484 N.W.2d 113 (N.D. 1992). However, these cases are inapposite
because unlike state courts, federal courts are courts of limited
jurisdiction and only have the powers that Congress and the
Constitution have provided them. See generally Northwest
Airlines, Inc. v. Transp. Workers Union of Am., 451 U.S. 77, 95,
101 S.Ct. 1571, 1582, 67 L.Ed. 2d 750 (1981) (“[F]ederal courts,
unlike their state counterparts, are courts of limited jurisdiction that
have not been vested with open-ended lawmaking powers.”)
Furthermore, both cases are distinguishable. Each defendant, like
Washington, lied about his name during sentencing in order to hide
an extensive criminal history. However, in Goene, the trial court
specifically couched its ruling in the alternative, relying on two
specific Florida Rules of Criminal Procedure in addition to its
inherent authority to correct a sentence. Goene, 577 So. 2d at 1307
n.1. The Florida Supreme Court did not address those issues, but
merely looked at the question of whether there was a violation of
Double Jeopardy. Id. at 1307-09. In Foster, the North Dakota
Supreme Court recognized, “as a general proposition, a court of
law has the inherent authority to correct judgments obtained
through fraud,” relying on North Dakota Rule of Criminal
Procedure 35 (which resembled the pre-1987 Federal Rule 35) and
Bishop. Foster, 484 N.W.2d at 117. However, as discussed,
reliance on Bishop and the pre-1987 Rule 35 for the present or past
existence of this inherent power in federal courts is not persuasive.

                                  14
result, the court held a hearing to revoke Kendis’s probation,
vacated its original sentence, and resentenced Kendis to four
years incarceration. Id.

       The issue in Kendis was whether the court was permitted
to revoke probation based on a defendant’s actions prior to
sentencing. We held that “revocation of probation is permissible
when defendant’s acts prior to sentencing constitute a fraud on
the court.” Id.

        In 1987, when the district court took the action being
considered in Kendis, revocation of probation and the
accompanying procedure were governed by 18 U.S.C. §§ 3651
and 3653. Those sections provided that the court “may revoke
or modify any condition of probation, or may change the period
of probation,” 18 U.S.C. § 3651, and that following revocation,
if the original sentence was suspended, the court may “impose
any sentence which might have originally been imposed.” 18
U.S.C. § 3653. Furthermore, § 3653 allowed for the probation
officer to arrest the probationer for cause “[a]t any time within
the probation period.” Id. We made no holding in that case
regarding the “inherent power” of a district court to vacate
Kendis’s probation and resentence him. The revocation of
probation and subsequent resentencing were specifically
permitted by statute, and nothing in the statute dealt with the
effect of the timing of the fraud. We merely interpreted §§ 3651
and 3653 to permit revocation based on a fraud on the court that
occurred prior to the imposition of the probationary sentence or
the commencement of the period of probation, a result not
inconsistent with the language of the applicable statutes.
Probation is still governed by different rules and statutes than
those which govern sentences of imprisonment.10


       10
         Sentences of probation are currently governed by 18
U.S.C. §§ 3561-66 and Federal Rule of Criminal Procedure 32.1.
However, even under the current framework, the court may still
revoke probation for a violation that takes place “at any time prior
to the expiration or termination of the term of probation,” and
“resentence the defendant.” 18 U.S.C. § 3565(a).

                                15
        Given the absence of authority suggesting a longstanding
inherent power of a district court to vacate a criminal sentence
based on fraud, other than Bishop and its limited progeny, we
find that there is no “‘long unquestioned’ power of federal
district courts” to vacate a judgment procured by fraud in the
criminal context. Carlisle, 517 U.S. at 426, 116 S.Ct. at 1466.

                                   B.

        To the extent district courts may have ever had the
inherent power to vacate a sentence procured by fraud, such
power was abrogated by the enactment of 18 U.S.C. § 3582(c)
and the amendments to Federal Rule of Criminal Procedure 35.
As discussed above, the Supreme Court has distinguished its
holding in Chambers in the criminal context when the text of the
governing Federal Rule of Criminal Procedure clearly limits the
power of the court. Carlisle, 517 U.S. at 426, 116 S.Ct. at 1466.
Washington argues that the text of 18 U.S.C. § 3582(c) and
Federal Rule of Criminal Procedure 35(a) are just as clear in
their intent to limit the district court’s power as Rule 29(c) was
in Carlisle. Section 3582(c) provides for very specific and
limited circumstances under which a court may modify a
sentence after it has been imposed.11 The court below looked to


       11
            The court may not modify a term of imprisonment once
            it has been imposed except that--
               (1) in any case--
                 (A) the court, upon motion of the Director of the
               Bureau of Prisons, may reduce the term of
               imprisonment (and may impose a term of probation or
               supervised release with or without conditions that does
               not exceed the unserved portion of the original term of
               imprisonment), after considering the factors set forth
               in section 3553(a) to the extent that they are applicable,
               if it finds that--
                    (i) extraordinary and compelling reasons warrant
                 such a reduction; or
                    (ii) the defendant is at least 70 years of age, has
                 served at least 30 years in prison, pursuant to a

                                   16
the text and legislative history of the statute and concluded that
its proscriptions were inapplicable in the present case. The
Senate Report explains that one of the general purposes of the
section is to “describe[] the circumstances under which the term
of imprisonment may be modified.” S. Rep. No. 98-225, at 116
(1983) as reprinted in 1984 U.S.C.C.A.N. 3182, 3299.
Specifically, “[s]ubsection (c) provides that a court may not
modify a sentence except as described in the subsection. The
subsection provides ‘safety valves’ for modification of sentences
in three situations.” Id. at 121, as reprinted in 1984
U.S.C.C.A.N. 3182, 3304. The district court concluded that
these “safety valves” merely apply to reduction to a term of
imprisonment, and do not address the powers of the court when



             sentence imposed under section 3559(c), for the
             offense or offenses for which the defendant is
             currently imprisoned, and a determination has been
             made by the Director of the Bureau of Prisons that
             the defendant is not a danger to the safety of any
             other person or the community, as provided under
             section 3142(g);
           and that such a reduction is consistent with applicable
           policy statements issued by the Sentencing
           Commission; and
             (B) the court may modify an imposed term of
           imprisonment to the extent otherwise expressly
           permitted by statute or by Rule 35 of the Federal Rules
           of Criminal Procedure; and
           (2) in the case of a defendant who has been sentenced
         to a term of imprisonment based on a sentencing range
         that has subsequently been lowered by the Sentencing
         Commission pursuant to 28 U.S.C. 994(o), upon motion
         of the defendant or the Director of the Bureau of Prisons,
         or on its own motion, the court may reduce the term of
         imprisonment, after considering the factors set forth in
         section 3553(a) to the extent that they are applicable, if
         such a reduction is consistent with applicable policy
         statements issued by the Sentencing Commission.
18 U.S.C. § 3582(c).

                                17
vacating a sentence for fraudulent conduct during the sentencing.
Gregg, 2006 WL 2850564, at *3 n.2. However, the district
court’s reading is contrary to both the clear language of the
statute and its legislative history.12 Section 3582(c) states in no
uncertain terms that “[t]he court may not modify a term of
imprisonment once it has been imposed except” in the specific
situations provided by that section. 18 U.S.C. § 3582(c).

       The plain language of Federal Rule of Criminal
Procedure 35(a) is equally clear in its limitation of a court’s
jurisdiction to modify its own sentences.13 In Bowles v. Russell,
___ U.S. ___, 127 S.Ct. 2360, 2366, 168 L.Ed. 2d 96 (2007), the
Supreme Court held that statutory time limits are jurisdictional,
and courts may not make equitable exceptions to them.
Following Bowles, we held in United States v. Higgs, 504 F.3d
456 (3d Cir. 2007), that the 7-day time limit of Rule 35(a) is
jurisdictional. We looked at the history of Rule 35, including the
language of the Rule before the significant 1987 and 1991
amendments. Id. at 459-64. We noted that prior to 1987, the
Rule allowed a district court to correct an “illegal” sentence at
any time. Id. at 460. However, after the 1991 amendments, “the
authority to correct a sentence under [current subdivision (a)]
was intended to be very narrow and extend only to those cases in
which an obvious error or mistake has occurred in the
sentence.” 14 Id. at 462 (quoting Fed. R. Crim. P. 35 advisory




       12
         The district court seemingly overlooked the sentence
preceding the “safety valve” language: “a court may not modify a
sentence except as described in the subsection.” S. Rep. No. 98-
225, at 121, as reprinted in 1984 U.S.C.C.A.N. 3182, 3304
(emphasis added).
       13
         “Correcting Clear Error: Within 7 days after sentencing,
the court may correct a sentence that resulted from arithmetical,
technical, or other clear error.” Fed. R. Crim. P. 35(a).
       14
        Prior to the 2002 amendments, current subdivision 35(a)
was subdivision 35(c).

                                18
committee’s note) (internal brackets omitted).15 We concurred
with our sister circuit in holding that § 3582(c) sets forth “a
statutory basis for limiting the district courts’ jurisdiction” and
therefore that Rule 35(a) 7-day limit is jurisdictional. Id. at 464.

       Because the government moved to vacate the sentence
well beyond the 7-day period provided for in Rule 35, the district
court lacked jurisdiction to hear the motion or vacate the
sentence. The district court concluded that Washington’s fraud
was not “error” as covered by Rule 35, and therefore the Rule’s
time restriction was inapplicable and did not abridge any
inherent power to remedy fraud on the court. Gregg, 2006 WL
2850564, at *3. However, this conclusion is contrary to the
weight of authority from other circuits and the Advisory
Committee’s notes stating that § 3582(c) and Rule 35 are
intended to define the full scope of the district court’s power to




       15
         The Advisory Committee’s Notes explain that:
      The Committee considered, but rejected, a proposal from
      the Federal Courts Study Committee to permit modification
      of a sentence, within 120 days of sentencing, based upon
      new factual information not known to the defendant at the
      time of sentencing. Unlike the proposed subdivision (c)
      which addresses obvious technical mistakes, the ability of
      the defendant (and perhaps the government) to come
      forward with new evidence would be a significant step
      toward returning Rule 35 to its former state. The Committee
      believed that such a change would inject into Rule 35 a
      degree of post-sentencing discretion which would raise
      doubts about the finality of determinate sentencing that
      Congress attempted to resolve by eliminating former Rule
      35(a). It would also tend to confuse the jurisdiction of the
      courts of appeals in those cases in which a timely appeal is
      taken with respect to the sentence. Finally, the Committee
      was not persuaded by the available evidence that a problem
      of sufficient magnitude existed at this time which would
      warrant such an amendment.
Fed. R. Crim. P. 35 advisory committee’s note (emphasis added).

                                 19
correct a sentence.16 We also reject the argument that were we
to hold that district courts lack the inherent power or jurisdiction
to vacate sentences in a situation like this one, then the court
would be without a remedy. One who makes false statements to
the court is still subject to the independent penalties for those
false statements, as this case demonstrates by Washington’s
subsequent indictment.

       While we are dubious that federal courts ever had the
inherent power to vacate criminal sentences that were procured
by fraud, “[w]hatever the scope of this ‘inherent power,’ . . . it
does not include the power to develop rules that circumvent or
conflict with the Federal Rules of Criminal Procedure.”
Carlisle, 517 U.S. at 426, 116 S.Ct. at 1466. Accordingly, we
hold that to the extent there might have at one point been
inherent power in the court, such power was abrogated by
Congress pursuant to § 3582(c) and Federal Rule of Criminal
Procedure 35(a).




       16
          See United States v. Lopez, 26 F.3d 512, 515, 520 (5th
Cir. 1994) (holding that a district court only has authority to modify
a sentence as provided by § 3582(c) and when a resentencing takes
place outside the 7-day window “the district court lacked
jurisdiction to act pursuant to Rule 35(c)”); United States v. Fahm,
13 F.3d 447, 453 (1st Cir. 1994) (“Upon careful consideration of
[Rule 35], the advisory committee’s note, and relevant case law, we
conclude that the court had no inherent power to increase its
original sentence.”); United States v. Ross, 9 F.3d 1182, 1188 (7th
Cir. 1993) (“This new version of [Rule 35] adapts the earlier
scheme to the demands of the sentencing guidelines structure while
preserving, albeit on a very constricted scale, the former authority
of the district court, grounded in rule and, at least prior to the rules,
inherent power, to correct errors in sentences.”) (citing Fed. R.
Crim. P. 35(c) advisory committee’s note); United States v. Fraley,
988 F.2d 4, 7 (4th Cir. 1993) (“Thus, the addition of subsection (c)
to Rule 35 demonstrates that district courts are to have only limited
authority to correct sentences . . . and Rule 35(c) fully defines the
scope of that authority.”).

                                   20
                                 C.

        Because the district court’s order vacating Washington’s
sentence and directing resentencing was issued without authority
or jurisdiction we must consider whether the issuance of a writ
of mandamus is appropriate. “Traditionally, federal courts have
used their power to issue writs only ‘to confine an inferior court
to a lawful exercise of its prescribed jurisdiction or to compel it
to exercise its authority when it is its duty to do so.’” United
States v. Santtini, 963 F.2d 585, 594 (3d Cir. 1992) (quoting
Roche v. Evaporated Milk Ass’n, 319 U.S. 21, 26, 63 S.Ct. 938,
941, 87 L.Ed. 1185 (1943)). “[I]f there has been a judicial
‘usurpation of power’ the invocation of this extraordinary
remedy will be warranted.” Id. (citing Will v. United States, 389
U.S. 90, 95, 88 S.Ct. 269, 273, 19 L.Ed. 2d 305 (1967)). It is
precisely in cases such as this, where a district court clearly acts
in excess of its statutory authority that the issuance of a writ of
mandamus is appropriate.

       “The standard for issuing a writ of mandamus is
stringent.” Wexler, 31 F.3d at 128. As a preliminary matter,
Washington must show that the district court committed a “clear
error of law.” Id. (citing In re Bankers Trust Co., 775 F.2d 545,
547 (3d Cir. 1985)). As discussed above, the district court
committed a clear error of law vacating an already imposed
sentence in clear contradiction of its statutorily limited authority.

        Washington must also show that the error will “cause
irreparable injury” and that there is “no means of adequate
relief” other than a writ of mandamus. Id. (citing Cippolone v.
Liggett Group, Inc., 785 F.2d 1108, 1118 (3rd Cir. 1986) and
Bankers Trust, 775 F.2d at 547). The error in this case, namely
vacating a sentence absent authority to do so, will cause
irreparable injury because it would result in Washington being
subjected to a new sentencing hearing, and potentially more time
in prison, after his term of incarceration has been served.17


       17
          His right to appeal the resentencing would not cure the
potential for excess prison time, since there in no certainty that his

                                 21
Washington has no “adequate means of relief” other than
mandamus to remedy the error of law prior to being resentenced.

        Because Washington’s appeal of the order on Double
Jeopardy grounds (No. 07-1884) is brought under the Collateral
Order Doctrine, that appeal is limited only to the Double
Jeopardy issue. See Abney, 431 U.S. at 662-63, 97 S.Ct. at 2041-
42 (discussing the narrow scope of issues available for review
under the Collateral Order Doctrine). As such, considering the
resentencing issue under a writ of mandamus allows for the
consolidation of all of Washington’s claims into one case before
us, as opposed to forcing a piecemeal resolution, as a writ of
mandamus might do in other circumstances. Cf. Wexler, 31 F.3d
at 128 (noting that “‘[m]andamus is disfavored because its broad
use would threaten the policy against piecemeal appeals”)
(quoting In Re School Asbestos Litigation, 977 F.2d 764, 772
(3rd Cir. 1992)). Allowing this Court to decide all the issues
contained in these appeals altogether, rather than in a piecemeal
fashion, is clearly in the interests of judicial economy, and
therefore the use of mandamus is favored.18

                               IV.

        Washington alleges that the sentence imposed by the
district court (Dalzell, J.) in his false claims case was both
procedurally and substantively unreasonable since he received
the statutory maximum of five years imprisonment, while the
applicable Guidelines range was only four to ten months.

                               A.



new sentence would be stayed pending appeal. See 18 U.S.C. §
3143(b).
       18
          Because we are issuing a writ of mandamus vacating the
district court’s March 20, 2007 Order, we need not address whether
Washington’s Double Jeopardy rights would be violated by
subjecting him to resentencing, as no such resentencing will take
place. Accordingly, appeal No. 07-1884 is dismissed as moot.

                               22
       Our review of criminal sentences involves a two step
analysis.

       We must first ensure that the district court committed no
       significant procedural error in arriving at its decision,
       “such as failing to calculate (or improperly calculating)
       the Guidelines range, treating the Guidelines as
       mandatory, failing to consider the § 3553(a) factors,
       selecting a sentence based on clearly erroneous facts, or
       failing to adequately explain the chosen sentence--
       including an explanation for any deviation from the
       Guidelines range.”

Wise, 515 F.3d at 217 (quoting Gall v. United States, ___ U.S.
___, 128 S.Ct. 586, 597, 169 L.Ed. 2d 445 (2007)). While the
district court’s sentence is reviewed under an abuse of discretion
standard, the level of deference given will depend on the type of
procedural error asserted. Id. “Thus, if the asserted procedural
error is purely factual, our review is highly deferential, and we
will conclude there has been an abuse of discretion only if the
district court’s findings are clearly erroneous.” Id.
However,“we do not defer to a district court when the asserted
procedural error is purely legal, as, for example, when a party
claims that the district court misinterpreted the Guidelines.” Id.

       If there is no procedural error, then we review the
sentence merely for “substantive reasonableness,” determined
under the abuse of discretion standard. Id. “We may consider
the extent of a court’s deviation from the Guidelines range, but
we ‘must give due deference to the district court’s decision that
the § 3553(a) factors, on a whole, justify the extent of the
variance.’” Id. (quoting Gall, 128 S.Ct. at 597). However, “we
may not reverse the district court simply because we would have
imposed a different sentence.” Id.

                                B.

                                1.
     In determining Washington’s sentence, the district court
committed legal error in finding that the filings with the Court of

                                23
Appeals and the Supreme Court using the name “Kennard
Gregg” were violations of 18 U.S.C. § 1001. Section 1001
specifically excepts “a party to a judicial proceeding, or that
party’s counsel, for statements, representations, writings or
documents submitted by such party or counsel to a judge or
magistrate in that proceeding.” 18 U.S.C. § 1001(b).

       The district court spent a considerable portion of the
sentencing hearing focusing on the number of federal judges
who had been deceived. It also stated its belief that each
misrepresentation to each individual judge could, in and of itself,
be a violation of § 1001. Judge Dalzell read into the record the
names of all the members of the Third Circuit Court of Appeals
who heard the appeal en banc, and the names of the justices of
the Supreme Court, totaling 22 federal judges.19 The
government contends that the district court’s recitation of the
number of judges was merely a matter of rhetoric to emphasize
the severity of the nature and circumstances of Washington’s
deception. We disagree.

       The court properly focused on the need for deterrence and
expressed the view that a four month sentence was inadequate to
accomplish that objective. In fact, the court remarked that, given
the severity of the offense and the surrounding circumstances, a
sentence in the Guidelines range would be “a joke.” It also
noted Washington’s extensive criminal history, and his
propensity to violate parole and/or probation. However, the
court stated that “as a finding, I cannot imagine a more serious
violation of the statute, in that a total of 22 federal judges were
actively misled into thinking this defendant was someone other
than the person he was impersonating.” Given its finding that
each of the filings with the Court of Appeals and the Supreme
Court were violations of § 1001 notwithstanding the clear
language of the statute excepting “statements, representations,


       19
          We note that Judge Dalzell also referred to the
misstatements before the Magistrate Judge and Judge Padova but
apparently did not include them in his list of 22 federal judges who
had been misled by Washington.

                                24
writings or documents” submitted to the judge, the district court
relied on a clearly erroneous legal conclusion in forming the
basis for its sentence.20 18 U.S.C. § 1001(b).

                                2.

        Additionally, the court overstated exactly how much
benefit Washington received from his misrepresentations.
Relying on the PSR in the case before him, Judge Dalzell
concluded that Washington had been sentenced before Judge
Padova under criminal history two as opposed to five. However,
Washington would have only been a category four prior to
actually being sentenced for the counterfeiting. An offense level
of nine and a criminal history of two would result in a Guidelines
range of six to twelve months, as reflected by the six month
sentence Washington received in the counterfeit currency case.
An offense level of nine and a criminal history of four would
result in a Guidelines range of twelve to eighteen months, which
would have been his range had his true criminal history been
used. An offense level of nine and a criminal history of five
would result in a Guidelines range of eighteen to twenty-four
months. In actuality, Washington received a benefit of six
months on either end of the Guidelines range as a result of his
misrepresentations. However, by Judge Dalzell’s assessment,


       20
          Washington’s affidavit opposing the government’s motion
to vacate his sentence stated: “While the defendant does not
concede any of the allegations of the government, none of the facts
they allege are relevant to the disposition of this motion.” During
sentencing, Judge Dalzell erroneously concluded that this affidavit
also violated § 1001. Washington argues that Judge Dalzell drew
a negative inference from his refusal to admit the allegations
against him, violating his Fifth Amendment right against self-
incrimination. See Mitchell v. United States, 526 U.S. 314, 330,
119 S.Ct. 1307, 1315-16, 143 L.Ed. 2d 424 (1999) (court holding
a defendant’s silence against him during sentencing proceedings
impermissibly burdens his constitutional right against compelled
self-incrimination). In light of our disposition we need not reach
the merits of this argument.

                                25
Washington received a benefit of one year on either end of the
Guidelines range. The court noted that “the defendant hugely
benefitted at his sentencing.” It is certainly reasonable to assume
that Judge Dalzell’s mistaken calculation of the benefit
Washington received from his deceit before Judge Padova may
have influenced the sentence he imposed.

                                 3.

       Washington also contends that the district court
incorrectly calculated the applicable Guidelines range by
including the counterfeiting conviction as a “prior sentence.” In
the PSR, and therefore Judge Dalzell’s findings, the counterfeit
currency case before Judge Padova was included as a “prior
sentence” corresponding to an additional two points, and thus a
criminal history category of five, as opposed to four if that
sentence were not included. See United States v. Irvin, 369 F.3d
284, 292 (3d Cir. 2004) (“[W]e will generally exercise our
discretion to recognize a plain error in the (mis)application of the
Sentencing Guidelines.”).

        Section 4A1.2(a)(1) of the Sentencing Guidelines
provides that “[t]he term ‘prior sentence’ means any sentence
previously imposed . . . for conduct not part of the instant
offense.” U.S. Sentencing Guidelines Manual § 4A1.2(a)(1).
Application Note 1 states in pertinent part: “Conduct that is part
of the instant offense means conduct that is relevant conduct to
the instant offense under the provisions of § 1B1.3 (Relevant
Conduct).” Id. at Application Note 1. Section 1B1.3 defines
relevant conduct as “all acts and omissions committed . . . by the
defendant; and that occurred during the commission of the
offense of conviction, . . . or in the course of attempting to avoid
detection or responsibility for that offense.” Id. at
§ 1B1.3(a)(1)(A).

        The offense of conviction before Judge Dalzell was the
violation of § 1001. Counterfeiting was not “relevant conduct”
for that offense. The actions taken in the commission of the
counterfeiting did not occur “during the commission” of the
false statements, or in an “attempt[] to avoid detection or

                                 26
responsibility” for the false statements. Id. A defendant’s
subsequent acts may result in additional criminal charges, as
Washington’s did, but that does not render the original offense
relevant conduct for the later charges. Simply because a
defendant tries to frustrate the judicial process does not make the
crime for which he was originally indicted relevant conduct for
future prosecutions. The fact that Washington would not have
needed to lie if he had not been arrested for counterfeiting does
not make the counterfeiting relevant conduct for the lying.

        Washington attempts to analogize to Irvin, where we held
that the district court had committed plain error by considering
the defendant’s state court manslaughter conviction in
sentencing him for possession of a firearm by a convicted felon.
369 F.3d at 292. In determining that the manslaughter was
“relevant conduct” to the possession charge, we noted that “Irvin
could not have exercised criminally negligent control over his
Smith & Wesson pistol on June 9, 1998 unless he was in
possession of it on the same date.” Id. at 290. In Irvin, the act
of possession and manslaughter were inextricably linked as the
possession facilitated the manslaughter. “[T]he offense
committed by Irvin, as charged in both the state and federal
indictments, centered on the passive act of possessing a firearm
on June 9, 1998.” Id. at 292. The two were temporally and
operationally connected. However, no similar connection exists
where Washington made false statements to the government
after the commission of the counterfeiting had been completed.
As such, including the counterfeit currency sentence in the PSR
and Guidelines calculation was not erroneous.21

                               IV.

       Accordingly, for the reasons set forth above, we will issue
a writ of mandamus instructing the district court (Padova, J.) to
vacate its order of March 20, 2007, which vacated the original


       21
           Because we have found procedural error in Judge
Dalzell’s sentence and are remanding for resentencing, we need not
evaluate the substantive reasonableness of the sentence.

                                27
sentence in the counterfeiting case. Additionally, we reverse the
district court’s (Dalzell, J.) sentence in the false statements case
and remand for resentencing consistent with this opinion. The
appeal on Double Jeopardy grounds, No. 07-1884, is dismissed
as moot.




                                 28
