decided: January 20, 1981; As Amended February 3, April 30, 1981.
Before Rosenn and Van Dusen, Circuit Judges, and Stern, District Judge.*fn*
When this appeal first came to this court for review, United States v. Busic, 587 F.2d 577 (3d Cir. 1978), we considered the question of whether a court could validly impose consecutive sentences upon defendant LaRocca for the crime of assault with a dangerous weapon, 18 U.S.C. § 111, and for the crime of use of a firearm to commit that felony, 18 U.S.C. § 924(c)(1), when the dangerous weapon used in the assault is a firearm. We concluded that such sentencing violated the Double Jeopardy Clause and we remanded United States v. LaRocca, No. 77-1376, to the district court for resentencing under either section 111 or section 924(c) at the Government's election. 587 F.2d at 587. Because the other joint defendant, Busic, was prosecuted under the carrying provisions of section 924(c)(1) and not under the use provision of that section, we held that no like infirmity invalidated his sentence. Thus, we concluded that the imposition of consecutive sentences on Busic under section 111 and section 924(c)(2) was permissible. Id.
In light of the subsequent decision of the Supreme Court in Simpson v. United States, 435 U.S. 6, 98 S. Ct. 909, 55 L. Ed. 2d 70 (1978), we granted the Government's petition for rehearing and vacated our double jeopardy holding with respect to LaRocca on the ground that there was no reason to reach the constitutional question. 587 F.2d 577, 587-89 (3d Cir. 1978). In Simpson the Court reviewed sentences under section 924(c) in conjunction with sentences imposed for bank robberies with the use of firearms in violation of 18 U.S.C. § 2113(a) and (d) and held that in a prosecution growing out of a single transaction of bank robbery with firearms, a defendant may not be sentenced under both section 2113(d) and section 924(c). We thereafter reached a nearly identical conclusion as a matter of statutory construction that LaRocca's sentence could not be augmented under both section 111 and section 924(c) but that he could be sentenced under either at the Government's election. We did not alter our holding as to Busic.
The defendants thereupon successfully petitioned the Supreme Court of the United States for writs of certiorari to this court. 442 U.S. 916, 99 S. Ct. 2835, 61 L. Ed. 2d 282 (1979). The Supreme Court reversed in both cases and remanded to this court for proceedings consistent with its opinion. In the proceedings before the Supreme Court, the Government urged that should the Court find section 924(c) to be inapplicable to the defendants, it should not only vacate the section 924(c) sentences but also those imposed by the district court under section 111. This, the Government asserted, would permit the district court to resentence the defendants under the enhancement provision of section 111 and thus carry out its initial intention to deal severely with the armed assaults now knowing that it had impermissibly relied on the enhancement provisions of section 924(c). Because this court had not considered this contention, the Supreme Court expressed no opinion as to whether in the particular circumstances of this case such a disposition would be permissible. Busic v. United States, 446 U.S. 398, 412 n. 19, 100 S. Ct. 1747, 1756 n. 19, 64 L. Ed. 2d 381 (1980). We believe it is permissible and we vacate each of the sentences and remand to the district court for sentencing under section 111 and for dismissal of the counts under section 924(c).
Because the facts are fully and clearly set forth in this court's initial opinion, United States v. Busic, 587 F.2d 577 (3d Cir. 1978), we merely recapitulate them in the language of the Supreme Court.
(Defendants) Anthony LaRocca, Jr. and Michael Busic were tried together on a multicount indictment charging drug, firearms and assault offenses flowing from a narcotics conspiracy and an attempt to rob an undercover agent. The evidence showed that in May 1976 the two arranged a drug buy with an agent of the Drug Enforcement Administration who was to supply $30,000 in cash. When the agent arrived with the money, LaRocca attempted to rob him at gunpoint. The agent signalled for reinforcements, and as other officers began to close in LaRocca fired several shots at them. No one was hit and the agents succeeded in disarming and arresting LaRocca. Busic was also arrested and the officers seized a gun he was carrying in his belt but had not drawn. Additional weapons were found in the pair's automobile.
A jury in the United States District Court for the Western District of Pennsylvania convicted (defendants) of narcotics and possession of firearms counts, and of two counts of armed assault on federal officers in violation of 18 U.S.C. § 111 LaRocca as the actual triggerman and Busic as an aider and abettor, and thus derivatively a principal under 18 U.S.C. § 2. In addition, LaRocca was convicted of using a firearm in the commission of a federal felony in violation of 18 U.S.C. § 924(c)(1), and Busic was convicted of carrying a firearm in the commission of a federal felony in violation of 18 U.S.C. § 924(c)(2). Each (defendant) was sentenced to a total of 30 years, of which five resulted from concurrent sentences on the narcotics charges, five were a product of concurrent terms on the firearms and assault charges, and 20 were imposed for the § 924(c) violations.
Busic v. United States, 446 U.S. 398, 399, 100 S. Ct. 1747, 1749, 64 L. Ed. 2d 381 (1980) (footnotes omitted).
The issue before us now, as briefed by the parties, is whether in light of Simpson v. United States, 435 U.S. 6, 98 S. Ct. 909, 55 L. Ed. 2d 70 (1978), and the standards for sentencing enunciated by the Court in Busic v. United States, 446 U.S. 398, 412 n. 19, 100 S. Ct. 1747, 1756 n. 19, 64 L. Ed. 2d 381 (1980), we may not only vacate the sentences imposed in this proceeding under section 924(c), but also those imposed by the district court under section 111 and remand the section 111 convictions to the district court for sentencing de novo.
The defendants*fn1 argue that at no time have they challenged the validity of the section 111 convictions or have they or the Government challenged the sentences imposed under section 111. Further, they maintain that the sentencing court cannot correct the section 111 sentences under Rule 35 because the sentences were not illegal and it cannot modify them because more days than the 120 allowed by Rule 35 have passed. They also contend that because the maximum permissible sentence under section 111 for an assault on a federal officer without a weapon is three years, the additional two years of their five year sentences must be enhancements for the use of weapons, precluding further enhancement.*fn2 Defendants argue that every federal court of appeals, including this one, has rejected on grounds of double jeopardy the position advanced by the Government that defendants be resentenced for a term in excess of the initial sentence.*fn3 Moreover, Busic contends that the Government's failure to cross-appeal or cross-petition for a writ of certiorari in this case procedurally bars it from even raising the question of resentencing.
On the other hand, the Government argues that the district court could have sentenced each defendant to 10 years imprisonment on each of the assault counts (counts six and seven) because of their use of a deadly weapon. Instead, the court sentenced them to five years imprisonment concurrent on each count under section 111 and 20 years imprisonment under section 924(c) (counts eighteen and nineteen respectively) because of the use of firearms. If the sentences under section 924(c) are vacated, the Government's argument continues, the defendants will have had their sentences for the armed assaults on federal officers reduced from 25 years imprisonment to five years because of the intervening decision of the Court in Simpson v. United States, supra. In support of this contention the Government presents a twofold argument. First, it urges that contrary to existing case law, this court should hold that when a defendant's punishment on one or more counts arising out of the same criminal conduct is vacated, the defendant may be resentenced on the other related counts. Second, the Government maintains that the sentences imposed under counts 6 and 7 may be increased because defendants had in fact not yet begun to serve them.
Although the principle underlying the Double Jeopardy Clause*fn4 has ancient roots, its constitutional basis appears to be predicated upon the three common law pleas of autrefois acquit, autrefois convict, and pardon. United States v. Scott, 437 U.S. 82, 87, 98 S. Ct. 2187, 2191, 57 L. Ed. 2d 65 (1977). The reason underlying the prohibition against double jeopardy in the Anglo-American system of jurisprudence is set forth by the Supreme Court to be that
the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal compelling him to live in a continuing state of anxiety and insecurity, as well as ...