JOSEPH D. WHITE, PETITIONER V. UNITED STATES OF AMERICA

   No. 90-7151

   In The Supreme Court Of The United States

   October Term, 1990

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Third Circuit

   Brief For The United States In Opposition

                             OPINION BELOW

   The opinion of the court of appeals (Pet. App. 1a-7a) is
unreported, but the judgment is noted at 919 F.2d 138 (Table).

                             JURISDICTION

   The judgment of the court of appeals was entered on October 5,
1990.  A petition for rehearing was denied on November 20, 1990.  The
petition for a writ of certiorari was filed on Monday, February 19,
1991.  The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).

                          QUESTION PRESENTED

   Whether the district court violated petitioner's rights under the
Due Process Clause or the Double Jeopardy Clause when it resentenced
him to correct an illegal sentence.

                               STATEMENT

   Petitioner pleaded guilty in the United States District Court for
the Middle District of Pennsylvania to receipt and possession of a
firearm after being convicted of a felony, in violation of 18 U.S.C.
922(g)(1).  He was sentenced to 15 years' imprisonment.  The court of
appeals affirmed.  Pet. App. 1a-7a.

   1. A two-count indictment returned in February 1989 charged
petitioner with receiving a firearm after being convicted of a felony,
in violation of 18 U.S.C. 922(g)(1), and with possession of the same
firearm after being convicted of a felony, also in violation of 18
U.S.C. 922(g)(1).  Along with the indictment, the government filed a
notice of intent to seek an enhanced sentence under the Armed Career
Criminal Act, 18 U.S.C. 924(e)(1), which provides for a minimum
sentence of 15 years' imprisonment when a defendant convicted under
Section 922(g) has three previous convictions for violent felonies or
serious drug offenses.  /1/ Pet. App. 2a.

   In April 1989, petitioner entered a plea of guilty to both counts
of the indictment.  Pet. App. 2a.  During the plea proceeding in June
1989, the district court advised petitioner that his sentence might be
enhanced because of his prior convictions.  C.A. App. 21.  The court
explained that the law concerning the applicability of the enhancement
provision was unsettled, and that if the court declined to impose the
15-year sentence, the government "may elect to take an appeal to a
higher court." Id. at 21-22.  In that case, the court told petitioner,
the court of appeals might reverse, and "it's possible that you would
be returned to this Court for the imposition of the mandatory sentence
of 15 years." Id. at 22.  Petitioner acknowledged that he understood.
Ibid.  The court emphasized that it was important that petitioner
understood that the government had a right to appeal, "because it
makes a heck of a lot of difference as to the punishment that will be
imposed." Ibid.  He repeated that "the point is they (i.e., the
government) have a right to appeal anything that we ultimately
conclude in your case." Id. at 22-23.  Petitioner again acknowledged
that he understood.  Id. at 23.

   The district court sentenced petitioner to 14 months' imprisonment.
 In declining to sentence petitioner under the Armed Career Criminal
Act, the court apparently relied on the plurality opinion of Chief
Judge Gibbons in United States v. Balascsak concluded that a defendant
is not subject to the enhanced sentencing provision of the Armed
Career Criminal Act if he has not been convicted of two predicate
offenses before committing a third offense.  /2/ Pet. App. 3a.

   The government appealed petitioner's sentence, contending that
petitioner should have been sentenced under the Armed Career Criminal
Act.  The court of appeals agreed and remanded for resentencing.  C.A.
App. 75-85.  The court rejected petitioner's claim that it lacked
jurisdiction to review his sentence, holding that the appeal was
authorized by 18 U.S.C. 3742(b), which permits the government to seek
appellate review of a sentence "imposed in violation of law." C.A.
App. 79-81.  Citing its decision in United States v. Schoolcraft, 879
F.2d 64, 72-73 (3d Cir.), cert. denied, 110 S. Ct. 546 (1989), which
was decided shortly after petitioner was sentenced, the court ruled
that petitioner's prior crimes need not be separated by intervening
convictions to qualify as predicated offenses under the Armed Career
Criminal Act.  On remand, the district court sentenced petitioner to
15 years' imprisonment.  Pet. App. 3a-4a.

   2. The court of appeals affirmed.  Pet. App. 1a-7a.  On appeal,
petitioner argued that he was denied due process by the resentencing
because it frustrated his expectation of finality in the original
sentence.  The court of appeals rejected this claim as "legally
frivolous," explaining that "a defendant cannot have a legitimate
expectation of finality in an illegal sentence." Pet. App. 6a.  The
court also rejected petitioner's claim that because he had fully
served the initial 14-month sentence before the 15-year sentence was
imposed, the resentencing violated his rights under the Double
Jeopardy Clause.  Observing that "(t)he original sentence was contrary
to (the Armed Career Criminal Act) and hence illegal," the court
concluded that "resentencing to correct an illegal sentence does not
implicate double jeopardy rights." Pet. App. 7a.

                               ARGUMENT

   Petitioner renews his contentions (Pet. 7-12) that the resentencing
violated his rights under the Due Process and Double Jeopardy Clauses
of the Fifth Amendment.  Because petitioner had no legitimate
expectation of finality in his initial sentence, the court of appeals
correctly rejected these contentions.

   When a statute authorizes the government to seek appellate review
of the sentence imposed in a criminal case, the defendant "has no
expectation of finality in his sentence until the appeal is concluded
or the time to appeal has expired." United States v. DiFrancesco, 449
U.S. 117, 136 (1980).  See also Pennsylvania v. Goldhammer, 474 U.S.
28, 30 (1985).  Petitioner's assertion (Pet. 9, 11) that the
government had no statutory right to appeal his sentence is incorrect.
 As the court of appeals concluded in its decision vacating
petitioner's original sentence, appellate review of that sentence was
authorized by 18 U.S.C. 3742(b), which permits the government to
appeal a sentence "imposed in violation of law." Moreover, the
district court specifically informed petitioner before he entered his
guilty plea that the government had the right to appeal any sentence
imposed and that such an appeal could result in resentencing and the
imposition of a 15-year sentence.  Thus, petitioner had no legitimate
expectation of finality in his original sentence.  /3/

   Petitioner contends, however, (Pet. 9, 12) that he had a legitimate
expectation of finality in his initial sentence because that sentence
was legal at the time it was imposed.  Even if petitioner were correct
in asserting that his original sentence conformed to the law of the
circuit then in effect, he suggests no reason why the court of appeals
should not have applied its subsequent decision in Schoolcraft to
cases on direct appeal.  In any event, petitioner's argument is based
on a faulty premise:  petitioner's assertion (Pet. 9) that his
original sentence was "imposed in accordance with then prevailing
Third Circuit precedent" is incorrect.  At the time of petitioner's
sentencing, the question whether a defendant's prior crimes must be
separated by intervening convictions to qualify as predicate offenses
under the Armed Career Criminal Act had not been resolved by the Third
Circuit.  See note 2, supra;  C.A. App. 78 ("(W)hen (petitioner) was
sentenced on June 14, 1989, this issue had not yet been decided in our
circuit.").  Under Schoolcraft, which did resolve this issue,
petitioner's original sentence was contrary to the Armed Career
Criminal Act and therefore illegal.

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   ROBERT S. MUELLER, III

      Assistant Attorney General

   NINA GOODMAN

      Attorney

   MAY 1991

   /1/ Petitioner was convicted of burglary in 1984 and two counts of
unlawful delivery of a controlled substance in 1987.  C.A. App. 10-11.
 The two drug offenses occurred on January 14, 1986, and July 3, 1986;
 he was convicted of both offenses simultaneously.

   /2/ Five judges joined Judge Gibbons's opinion in Balascsak.  873
F.2d at 674-684.  Five other judges dissented, concluding that crimes
need not be separated by intervening convictions to qualify as
predicate offenses under the Armed Career Criminal Act.  Id. at
685-688.  Judge Becker concurred in the judgment, but agreed with the
dissenters that intervening convictions were not required.  Id. at
684-685.  Thus, the en banc court was divided 6-6 on this issue.  See
United States v. Schoolcraft, 879 F.2d 64, 72-73 (3d Cir.), cert.
denied, 110 S. Ct. 546 (1989).  Schoolcraft held that convictions may
be counted as predicate offenses under ACCA as long as "the criminal
episodes underlying the convictions were distinct in time." 879 F.2d
at 73.

   /3/ The fact that petitioner had fully served his original sentence
while the government's appeal was pending did not confer any greater
expectation of finality in that sentence.  See Jones v. Thomas, 491
U.S. 376 (1989) (defendant who had satisfied shorter of two
consecutive sentences that could not both lawfully be imposed was not
entitle to release;  rather, defendant's double jeopardy rights were
fully vindicated by order vacating shorter sentence and crediting time
served against longer sentence).