Petitioner was convicted in a Federal District Court on each of
15 counts of an indictment for violations of the narcotic laws, and
was sentenced to consecutive sentences of 20 months to 5 years on
each of Counts 2, 4, and 7, and to sentences of 20 months to 5
years on each of the other 12 counts, to run concurrently with each
other and "with the sentence imposed on Counts Two, Four and
Seven." On petitioner's appeal challenging the validity of his
conviction and sentence on each count, the Court of Appeals held
that
"The record supports at least 5 of the sentences that were to
run 'concurrently with' the 3 consecutive sentences. It therefore
supports the aggregate sentence. We need not decide whether it
supports the 'consecutive' sentences themselves,"
and it affirmed.
Held: the Court of Appeals should have passed upon the
validity of the consecutive sentences. Pp.
358 U. S.
327-330.
(a) The 15 sentences here involved may not be treated as one
"gross sentence" to imprisonment for a period of 5 to 15 years,
because the recorded judgment explicitly imposed a separate
sentence of from 20 months to the then permissible maximum of 5
years on each of the 15 counts. Pp.
358 U. S.
328-329.
(b) Because of the way the judgment is worded, imprisonment for
an aggregate period of 5 to 15 years can be sustained in this case
only if each of the consecutive sentences on Counts 2, 4, and 7 is
valid. Pp.
358 U. S.
329-330.
100 U.S.App.D.C. 396, 246 F.2d 677, judgment vacated and cause
remanded for further proceedings.
Page 358 U. S. 327
PER CURIAM.
Petitioner was convicted in the United States District Court for
the District of Columbia on each of 15 counts of an indictment for
violations of the narcotic laws, [
Footnote 1] and, as recited in the formal judgment, was
sentenced to imprisonment as follows:
"Twenty (20) Months to Five (5) Years . . . on Count Two; Twenty
(20) Months to Five (5) Years . . . on Count Four, said sentence on
Count Four to take effect [at] the expiration of sentence imposed
on Count Two; Twenty (20) Months to Five (5) Years . . . on Count
Seven, said sentence on Count Seven to take effect at the
expiration of sentence imposed on Count Four; Twenty (20) Months to
Five (5) Years . . . on each of Counts One, Three, Five, Six,
Eight, Nine, Ten, Eleven, Twelve, Thirteen, Fourteen, and Fifteen,
said sentences by the Counts to run concurrently and to run
concurrently with the sentences imposed on Counts Two, Four and
Seven."
On his appeal, petitioner sought reversal of the conviction and
sentence on each count upon the grounds of prejudicial procedural
errors at the trial, insufficiency of the evidence to support the
convictions and sentences, and invalid multiple punishments for
single offenses. In a per curiam opinion the Court of Appeals held
that
"The record supports at least 5 of the sentences that were to
run 'concurrently with' the 3 consecutive sentences. It therefore
supports the aggregate sentence. We need not decide whether it
supports the 'consecutive' sentences
Page 358 U. S. 328
themselves.
Hirabayashi v. United States, 320 U. S.
81,
320 U. S. 85;
Wanzer v.
United States, 93 U.S.App.D.C. 412, 208 F.2d 45."
It thereupon affirmed, one judge dissenting, 100 U.S.App.D.C.
396, 246 F.2d 677. Petitioner sought certiorari on the grounds that
the sentences invalidly multiply punishments for single offenses,
and that the Court of Appeals erred in failing to determine the
validity of the several sentences and in holding that imprisonment
for an aggregate period of 5 to 15 years is authorized by its
finding that "at least 5 of the sentences that were to run
"concurrently with" the 3 consecutive sentences [are valid]." We
granted the writ to determine those questions. 357 U.S. 934.
The Government contends here that the several sentences are, in
reality, but one "gross sentence" to imprisonment for a period of 5
to 15 years, and that the holding of the Court of Appeals that at
least 5 of the "concurrent" sentences are valid supports the
judgment, [
Footnote 2] but it
concedes that,
"If the sentence [may] not be considered as a gross sentence at
least as to the 12 counts which were to be concurrent with 2, 4,
and 7, . . . the case would have to be remanded to the Court of
Appeals to pass on the validity of counts 2, 4, and 7, [and if] it
found any one of them invalid, that court would then have to remand
to the District Court for resentencing, since, assuming that
Page 358 U. S. 329
the other counts cannot be considered in gross, it is not clear
which of them, taken individually, were to be concurrent with 2,
which with 4, and which with 7."
The question whether, in these circumstances, the law permits
the imposition of a single "gross sentence" upon several counts
exceeding the maximum sentence that may lawfully be imposed upon
any one of such counts is not presented here, for we think the
Government's contention that these 15 sentences were, or may be
treated as, one "gross sentence" to imprisonment for a period of 5
to 15 years is unsupportable, and is contradicted by the plain
words of the recorded judgment. "The only sentence known to the law
is the sentence or judgment entered upon the records of the court."
Hill v. United States, 298 U. S. 460,
298 U. S. 464.
The judgment entered on the records of the court in this case
explicitly imposed a separate sentence of from 20 months to the
then permissible maximum of 5 years [
Footnote 3] on each of the 15 counts. It is therefore
plain that the court did not impose one "gross sentence" to
imprisonment for a period of 5 to 15 years.
The judgment makes the separate sentences on Counts Two, Four,
and Seven to run consecutively. Thus, if each is valid, they in
sequence authorize imprisonment for an aggregate period of 5 to 15
years. But the judgment makes the separate sentences on the other
12 counts to run concurrently with each other (hence, for a total
period of 20 months to 5 years) and "with the sentences imposed on
Counts Two, Four and Seven," without saying whether
Page 358 U. S. 330
those "concurrent" sentences are to run with the sentence on
Count Two, with the consecutive sentence on Count Four, or with the
consecutive sentence on Count Seven. It is therefore evident that
the Court of Appeals was in error in concluding that the 5
"concurrent" sentences which it thought were valid alone support an
aggregate period of imprisonment of 5 to 15 years.
The rule that reversal is not required if any one of several
concurrent sentences is valid and alone supports the sentence and
judgment,
Hirabayashi v. United States, 320 U. S.
81,
320 U. S. 85;
and cases cited;
Pinkerton v. United States, 328 U.
S. 640,
320 U. S. 642,
note 1;
United States v. Sheridan, 329 U.
S. 379,
329 U. S. 381;
Roviaro v. United States, 353 U. S.
53,
353 U. S. 59,
note 6;
Lawn v. United States, 355 U.
S. 339,
355 U. S. 359,
does not aid the Government, for no one of the "concurrent"
sentences, or even all of them together, could, even if geared to a
particular (though invalid) consecutive sentence, support
imprisonment for more than 20 months to 5 years. If any one of the
consecutive sentences on Counts Two, Four, or Seven be invalid, it
cannot be said that such of the "concurrent" sentences as are valid
will run with such invalid consecutive sentence, and thus support
that much of the aggregate term of imprisonment, because the trial
judge did not make the concurrent sentences to run with any
particular one of the consecutive sentences. It is therefore clear,
under the present sentences, that imprisonment for an aggregate
period of 5 to 15 years can be sustained only if each of the
consecutive sentences on Counts Two, Four, and Seven is valid.
Hence, it is necessary for the Court of Appeals to pass upon the
validity of the consecutive sentences. The judgment of the Court of
Appeals is vacated, and the cause is remanded to that court for
further proceedings not inconsistent with this opinion.
It is so ordered.
[
Footnote 1]
The Narcotic Drugs Import and Export Act, § 2(c), 65 Stat. 767,
21 U.S.C. § 174; the Internal Revenue Code of 1954, §§ 4704(a),
4705(a), and 7237(a), 68A Stat. 550-551, 860, as amended, 69 Stat.
3, 26 U.S.C. (Supp. III) §§ 4704(a), 4705(a), 7237(a).
[
Footnote 2]
In support of its stated position, the Government relies on its
understanding of this Court's opinions in
Ex parte De
Bara, 179 U. S. 316, and
Ex parte Henry, 123 U. S. 372. It
also relies upon
Phillips v. United States, 212 F.2d 327,
335 (C.A. 8th Cir.);
Barnes v. United States, 197 F.2d
271, 273 (C.A. 8th Cir.);
Levine v. Hudspeth, 127 F.2d
982, 984 (C.A. 10th Cir.);
McKee v. Johnston, 109 F.2d
273, 275 (C.A. 9th Cir.);
Jackson v. Hudspeth, 111 F.2d
128, 129 (C.A. 10th Cir.);
Ross v. Hudspeth, 108 F.2d 628,
629 (C.A. 10th Cir.);
Hawkins v. United States, 14 F.2d
596, 597-598 (C.A. 7th Cir.);
Klein v. United States, 14
F.2d 35, 37 (C.A. 1st Cir.);
Neely v. United States, 2
F.2d 849, 852 (C.A. 4th Cir.).
[
Footnote 3]
At the time of these alleged offenses, and prior to the
enactment of the Narcotic Control Act of 1956, 70 Stat. 567, 570, §
2(c) of the Narcotic Drugs Import and Export Act (65 Stat. 767, 21
U.S.C. § 174) provided for imprisonment for its violation of "not
less than two or more than five years," and § 7237(a) of the
Internal Revenue Code of 1954 (68A Stat. 860) provided for
imprisonment for the violation or conspiracy to violate §§ 4704(a)
or 4705(a) of that Code of "not less than 2 or more than 5
years."