United States v. Gregory G. Lewis, 862 F.2d 748 (9th Cir. 1988). · Go Syfert
United States v. Gregory G. Lewis, 862 F.2d 748 (9th Cir. 1988). Cases Citing This Book View Copy Cite
50 citation events (12 in the last 25 years) across 10 distinct courts.
Strongest positive: United States v. Evans Santos Diaz (ca3, 2023-04-26)
Treatment trajectory · 1989 → 2026 · click a year to view as-of
1989 2007 2026
Top citers, strongest first. 24 distinct citers. How cited ↗
discussed Cited as authority (rule) United States v. Evans Santos Diaz
3rd Cir. · 2023 · confidence medium
See, e.g., United States v. Zangari, 677 F. 3d 86, 92 (2d Cir. 2012) (rejecting inherent power to order restitution); United States v. Blackwell, 81 F.3d 945, 949 (10th Cir. 1996) (rejecting inherent power to resentence defendants); United States v. Fahm, 13 F.3d 447 , 453–54 (1st Cir. 1994) (same); United States v. Lewis, 862 F.2d 748, 750 (9th 1988) (same). 20 pandemic nor did it implicate a defendant being tardy in returning to trial, as was the case in Bitter, 389 U.S. at 16 .
discussed Cited as authority (rule) United States v. Meindl
10th Cir. · 2008 · confidence medium
However, this Court has overturned a nunc pro tunc order, similar to the one sought by appellant here, on the ground that “[a] district court does not have inherent power to resentence defendants at any *851 time.” United States v. Blackwell, 81 F.3d 945, 949 (10th Cir.1996) (quoting United States v. Lewis, 862 F.2d 748, 750 (9th Cir.1988)).
cited Cited as authority (rule) United States v. Crowder
E.D. Tenn. · 1996 · confidence medium
Blackwell, 81 F.3d at 949 ; United States v. Lewis, 862 F.2d 748, 750 (9th Cir.1988), cert. denied, 489 U.S. 1032 , 109 S.Ct. 1169 , 103 L.Ed.2d 227 (1989).
examined Cited as authority (rule) United States v. Ursus Demetrious Stroud (6×) also: Cited "see"
9th Cir. · 1996 · confidence medium
Its authority to do so must flow from either the court of appeals mandate under 28 U.S.C. § 2106 (1982) or from Federal Rule of Criminal Procedure 35." United States v. Lewis, 862 F.2d 748, 750 (9th Cir.1988), cert. denied, 489 U.S. 1032 (1989) (citing United States v. Minor, 846 F.2d 1184, 1187 (9th Cir.1988)).
discussed Cited as authority (rule) United States v. Blackwell
10th Cir. · 1996 · confidence medium
“A district court does not have inherent power to resentence defendants at any time.” United States v. Lewis, 862 F.2d 748, 750 (9th Cir.1988), cert. denied, 489 U.S. 1032 , 109 S.Ct. 1169 , 103 L.Ed.2d 227 (1989); accord United States v. Corey, 999 F.2d 493, 496 (10th Cir.1993); United States v. Fahm, 13 F.3d 447, 453-54 (1st Cir.1994).
discussed Cited as authority (rule) United States v. Martin J. Cote Patricia S. Caldwell
9th Cir. · 1995 · confidence medium
Thus, a district court could not refuse to dismiss a case when the mandate required it, Stamper, 724 F.2d at 1107-08 , and a district court could not revisit its already final determinations unless the mandate allowed it, see United States v. Lewis, 862 F.2d 748, 750 (9th Cir.1988), cert. denied, 489 U.S. 1032 , 109 S.Ct. 1169 , 103 L.Ed.2d 227 (1989).
discussed Cited as authority (rule) United States v. Vincent Caterino (2×) also: Cited "see, e.g."
9th Cir. · 1994 · confidence medium
“A district court does not have inherent power to resentence defendants at any time.” United States v. Lewis, 862 F.2d 748, 750 (9th Cir.1988) (quotation omitted), cert. denied, 489 U.S. 1032 , 109 S.Ct. 1169 , 103 L.Ed.2d 227 (1989).
discussed Cited as authority (rule) United States v. Warren Kahakua
9th Cir. · 1994 · confidence medium
The difference is that in Rorex's case, the event occurring during the illegal period of probation could not be used to revoke probation because Rorex was not lawfully on probation, whereas in Kahakua's case, the event occurring during the illegal term of probation was only evidence which the district judge took into consideration along with other information in resentencing Kahakua on the suspended sentence. 6 Kahakua also relies on a series of cases where we have held that the court may not increase the valid portion of a sentence originally imposed in resentencing after a Rule 35 motion. 1 …
discussed Cited as authority (rule) United States v. Anthony Del Guzzi
9th Cir. · 1993 · confidence medium
Under Rule 35, as applied to offenses prior to November 1, 1987, a district court may correct an illegal sentence at any time; however, such authority "extends only to the illegal portion of the sentence, and does not empower the district court to reach legal sentences previously imposed." United States v. Lewis, 862 F.2d 748, 750 (9th Cir.1988), cert. denied, 489 U.S. 1032 (1989).
discussed Cited as authority (rule) United States v. Peter Chui Lin Wong (2×)
9th Cir. · 1993 · confidence medium
Although Fine does not directly address the question of whether the relevant conduct provisions are authorized by the statute, it does explicitly recognize that prior to the Sentencing Guidelines, judges had “ ‘broad latitude ... [to] consider evidence of counts for which an indictment has been dismissed.’” Fine, 975 F.2d at 600 (quoting United States v. Lewis, 862 F.2d 748, 750 (9th Cir.1988), cert. denied, 489 U.S. 1032 , 109 S.Ct. 1169 , 103 L.Ed.2d 227 (1989)).
discussed Cited as authority (rule) United States v. Robert Fine, Jr.
9th Cir. · 1992 · confidence medium
Before the guidelines, the sentencing judge had “broad latitude” to consider evidence, and could “consider evidence of counts for which an indictment has been dismissed.” United States v. Lewis, 862 F.2d 748, 750 (9th Cir.1988), cert. denied, 489 U.S. 1032 , 109 S.Ct. 1169 , 103 L.Ed.2d 227 (1989).
discussed Cited as authority (rule) United States v. Parker
9th Cir. · 1991 · confidence medium
See United States v. Tucker, 404 U.S. 443, 446 (1972) ("[A] judge may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may consider, or the source from which it may come."); United States v. Lewis, 862 F.2d 748, 750 (9th Cir.1988), cert. denied, 489 U.S. 1032 (1989).
cited Cited as authority (rule) Saulo Cortez Rendon v. United States
9th Cir. · 1989 · confidence medium
United States v. Lewis, 862 F.2d 748, 750 (9th Cir.1988), cert. denied, --- U.S. ----, 109 S.Ct. 1169 (1989).
discussed Cited as authority (rule) United States v. Jordan
9th Cir. · 1989 · confidence medium
See Kennedy v. United States, 330 F.2d 26, 27 (9th Cir.1964); United States v. Lewis, 862 F.2d 748, 750 (9th Cir.1988); United States v. Minor, 846 F.2d 1184, 1188 (9th Cir.1988) (Rule 35’s “authority to vacate and amend a sentence ‘at any time’ extends only to the illegal portion of the sentence”); United States v. Clutterbuck, 445 F.2d 839, 840 (9th Cir.), cert. denied, 404 U.S. 858 , 92 S.Ct. 108 , 30 L.Ed.2d 100 (1971).
discussed Cited as authority (rule) United States v. Marcel Fernando Jordan, United States of America v. Mark Christopher Meng
9th Cir. · 1989 · confidence medium
See Kennedy v. United States, 330 F.2d 26, 27 (9th Cir.1964); United States v. Lewis, 862 F.2d 748, 750 (9th Cir.1988); United States v. Minor, 846 F.2d 1184, 1188 (9th Cir.1988) (Rule 35’s “authority to vacate and amend a sentence ‘at any time’ extends only to the illegal portion of the sentence”); United States v. Clutterbuck, 445 F.2d 839, 840 (9th Cir.), cert. denied, 404 U.S. 858 , 92 S.Ct. 108 , 30 L.Ed.2d 100 (1971).
discussed Cited "see" Baker v. State (2×)
Wyo. · 2011 · signal: see · confidence high
See United States v. Lewis, 862 F.2d 748, 750 (9th Cir.1988) (authority to alter sentence on remand extended only to illegal portions, and did not empower district court to alier legal punishments previously imposed), cert. denied, 489 U.S. 1032 , 109 S.Ct. 1169 , 103 L.Ed.2d 227 (1989); United States v. Henry, 709 F.2d 298, 303, 306 (5th Cir.1983) (en banc) (similar).
cited Cited "see" United States v. Howard Handa
9th Cir. · 1997 · signal: accord · confidence high
Accord, United States v. Lewis, 862 F.2d 748, 750-51 (9th Cir.1988).
cited Cited "see" UNITED STATES of America, Plaintiff-Appellant, v. Howard HANDA, Defendant-Appellee
9th Cir. · 1997 · signal: accord · confidence high
Accord, United States v. Lewis, 862 F.2d 748, 750-51 (9th Cir.1988).
cited Cited "see" United States v. Blue
D.D.C. · 1995 · signal: see · confidence high
See United States v. Lewis, 862 F.2d 748, 750 (9th Cir.1988), cert. denied, 489 U.S. 1032 , 109 S.Ct. 1169 , 103 L.Ed.2d 227 (1989).
discussed Cited "see" United States v. Ronald Stump
9th Cir. · 1990 · signal: accord · confidence high
District courts do not have inherent power to resentence defendants at any time; their “authority to do so must flow either from the court of appeals mandate under 28 U.S.C. § 2106 (1982) or from Federal Rule of Criminal Procedure 35.” United States v. Minor, 846 F.2d 1184, 1187 (9th Cir.1988); accord United States v. Lewis, 862 F.2d 748, 750 (9th Cir.1988), cert. denied, 489 U.S. 1032 , 109 S.Ct. 1169 , 103 L.Ed.2d 227 (1989).
cited Cited "see" Ronald Kelly v. E. Calvin Neubert, Administrator, and W. Carey Edwards, the Attorney General of the State of New Jersey
3rd Cir. · 1990 · signal: see · confidence high
See United States v. Lewis, 862 F.2d 748, 751 (9th Cir.1988), cert. denied, — U.S. -, 109 S.Ct. 1169 , 103 L.Ed.2d 227 (1989).
discussed Cited "see" United States v. Juan Pimienta-Redondo, United States of America v. Alfredo Pupo (2×)
1st Cir. · 1989 · signal: see · confidence high
See United States v. Lewis, 862 F.2d 748, 750 (9th Cir.1988) (authority to alter sentence on remand extended only to illegal portions, and did not empower district court to alter legal punishments previously imposed), cert. denied, — U.S. -, 109 S.Ct. 1169 , 103 L.Ed.2d 227 (1989); United States v. Henry, 709 F.2d 298, 303, 306 (5th Cir.1983) (en banc) (similar).
discussed Cited "see, e.g." United States v. Jieme N. Portin, United States of America v. Ruben Y. Navarro
9th Cir. · 1994 · signal: see also · confidence medium
Under the pre-sentencing guidelines versions of Rule 35, the district court’s authority to correct sentencing errors extended only to the illegal portion of a sentence. 1 See United States v. Jordan, 895 F.2d 512, 514-515 (9th Cir.1989); Kennedy v. United States, 330 F.2d 26, 27 (9th Cir.1964); see also United States v. Lewis, 862 F.2d 748, 750 (9th Cir.1988), ce rt. denied, 489 U.S. 1032 , 109 S.Ct. 1169 , 103 L.Ed.2d 227 (1989); Contreras-Subias, 13 F.3d at 1344 (“The Kennedy-Jordan line of cases ... contemplate^] situations in which a sentence was composed of legal and illegal ‘portio…
cited Cited "see, e.g." State v. Raucci
Conn. App. Ct. · 1990 · signal: compare · confidence low
Compare United States v. Lewis, 862 F.2d 748 (9th Cir. 1988).
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
Gregory G. LEWIS, Defendant-Appellant
87-5012.
Court of Appeals for the Ninth Circuit.
Dec 1, 1988.
862 F.2d 748
Donald W. Beacham, Palmdale, Cal., for defendant-appellant., Nora M. Manella, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.
Nelson, Reinhardt, O'Scannlain.
Cited by 32 opinions  |  Published
O’SCANNLAIN, Circuit Judge:

On remand from this court for resentenc-ing, see United States v. Lewis, 787 F.2d 1318 (9th Cir.), amended, 798 F.2d 1250 (9th Cir.1986) (“Lewis /”), the district court sentenced Lewis to twenty-five years imprisonment for armed bank larceny and ordered such sentence to run consecutively with three concurrent sentences previously imposed for other convictions. Lewis contends the district judge lacked authority to impose such sentence and we agree in part.

FACTS AND PROCEEDINGS

In October 1983, Lewis and three others robbed the Family Savings and Loan in Los Angeles. The robbers left the bank in a van the owner of which was later discovered shot to death.

After investigation, the police uncovered an inside accomplice who named Lewis as one of the bank robbers. The government charged Lewis with four counts: (1) conspiracy; (2) three charges under 18 U.S.C. § 2113 — armed bank larceny, 18 U.S.C. § 2113(b) (taking with intent to steal money exceeding $100) and (d) (committing theft by assault or putting the life of any person in jeopardy by use of a dangerous weapon) and killing in an attempt to avoid apprehension for the bank larceny, 18 U.S. C. § 2113(e); and (3)-(4) two counts of being an ex-felon in possession of a gun. A jury convicted Lewis on all counts. The district court sentenced Lewis to life imprisonment on count two, and to five year terms on each of the other counts. All terms were to run concurrently.

In Lewis I, we affirmed the convictions on counts one, three, four, and the bank larceny convictions under count two. However, we reversed the conviction on the section 2113(e) killing charge portion of count two because we found that the failure to sever it from counts three and four[*750] created impermissible prejudice. Lewis, 787 F.2d at 1323. We remanded for retrial. Id. at 1325.

On remand, the government moved to dismiss the section 2113(e) charge and the district court granted the motion. Thus, all that remained of count two were the armed larceny convictions under sections 2113(b) and (d), as to which no separate sentence had previously been imposed. The district court imposed a sentence of twenty-five years imprisonment, and ordered it to run consecutively to the concurrent sentences imposed on counts one, three, and four. Lewis has filed a timely appeal.

DISCUSSION

1. Evidence at Resentencing

Lewis contends that the district court improperly considered testimony on the killing charge in determining his sentence on the bank larceny convictions. We disagree. The trial judge has broad latitude in sentencing and may properly take into account evidence from a wide variety of sources. See United States v. Tucker, 404 U.S. 443, 446, 92 S.Ct. 589, 591, 30 L.Ed.2d 592 (1972); Farrow v. United States, 580 F.2d 1339, 1345 n. 2 (9th Cir.1978). A sentencing judge may consider evidence of counts for which an indictment has been dismissed by the government. See United States v. Marines, 535 F.2d 552, 554 (10th Cir.1976). In this case no due process concerns limit the range of permissible sentencing considerations. Therefore, the imposition of a twenty-five year term was proper.

2. Authority to Impose Consecutive Rather Than Concurrent Sentence

Lewis argues that the district court could not change the sentence for armed bank larceny on count two from a term that runs concurrently with the sentences on other counts to one that runs consecutively to them.

“[A] district court does not have inherent power to resentence defendants at any time. Its authority to do so must flow either from the court of appeals mandate under 28 U.S.C. § 2106 (1982) or from Federal Rule of Criminal Procedure 35.” United States v. Minor, 846 F.2d 1184, 1187 (9th Cir.1988) (citation omitted). Neither of these bases gives the district court power to impose a sentence for armed larceny that runs consecutively rather than concurrently with sentences on the other counts.

The Lewis I mandate reads: “We reverse the killing conviction because of prejudice caused by the failure to sever, and remand for a new trial on the § 2113(e) charge. We affirm the convictions for conspiracy, bank larceny, and receipt of firearms.” Lewis I, 787 F.2d at 1325 (footnote omitted). This mandate afforded the district court the authority to resentence only on the bank larceny convictions under count two. It did not empower the district court to alter the sentences imposed on the other counts. An important element of the original sentences on counts one, three, and four was the district court’s determination that any time served on these sentences would simultaneously be counted towards the completion of the sentence on count two. In altering the sentence on count two to run consecutively to the terms of imprisonment under the other counts, the district court implicitly altered Lewis’s sentence on counts one, three, and four. The Lewis I mandate did not grant the district court authority to impose a sentence on count two that ran consecutively to the sentences on counts one, three, and four.

Nor can authority to resentence in this manner be derived from Rule 35. Under Rule 35, the district court can “correct an illegal sentence at any time.” Fed.R.Crim.P. 35(a). However, “[tjhis authority to vacate and amend a sentence ‘at any time’ extends only to the illegal portion of the sentence, and does not empower the district court to reach legal sentences previously imposed.” Minor, 846 F.2d at 1188. The court did not have the power to alter the previously imposed legal sentences on counts one, three, and four.

We find that the government’s attempts to distinguish Minor unpersuasive. The government’s argument that the district[*751] court did not resentence on counts one, three, and four is incorrect. In addition, the government misconstrues the issue when it treats this case as a double jeopardy matter. The issue in the case before us, as in Minor, is whether the district court had authority to resentence the defendant on particular counts, not whether the re-sentencing violated the double jeopardy clause. See Minor, 846 F.2d at 1190 n. 6.

Finally, the government seems to suggest that the district court could resentence on all counts in order to effect its original sentencing plan. However, Minor rejects such an argument. In Minor, the court suggested that the Seventh Circuit erred in United States v. Shue, 825 F.2d 1111, 1113 (7th Cir.), cert. denied, — U.S. -, 108 S.Ct. 351, 98 L.Ed.2d 376 (1987). The Shue court apparently held that the district court had inherent power to resen-tence “in order to effectuate the original sentencing intent.” Minor, 846 F.2d at 1189 n. 5 (quoting Shue, 825 F.2d at 1113). The clear implication of Minor is that district courts have no such inherent power in this circuit.

CONCLUSION

The district court lacked authority to make the sentence on count two consecutive to the sentences on the other counts and therefore the sentence must be vacated. We remand to the district court with instructions to resentence on the armed bank larceny convictions portion of count two in a manner consistent with this opinion.

REVERSED and REMANDED with instructions.