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United States of America v. George Martorano

September 5, 2012

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

The opinion of the court was delivered by: Stearns, District Judge.

PRECEDENTIAL

Argued May 17, 2012

Before: SMITH and FISHER, Circuit Judges and STEARNS, District Judge*fn1

OPINION

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 without parole.*fn2 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.*fn3 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.

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.*fn4 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 courts) a strong preference for multiple, as opposed to general, sentences, but without ever holding general sentences to be illegal per se.*fn5 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 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 (the CCE count being the exception).*fn6 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 toMartorano‟s ...


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