United States of America v. Donald Douglas Cesare

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-2749
___________
UNITED STATES OF AMERICA
v.
DONALD DOUGLAS CESARE,
Appellant
___________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Criminal No. 1-07-cr-00053-001)
District Judge: The Honorable Sean J. McLaughlin
___________
Submitted Under Third Circuit LAR 34.1(a)
May 22, 2009
BEFORE: FUENTES, JORDAN,
and NYGAARD, Circuit Judges.
(Filed: September 18, 2009)
Candace Cain, Esq.
1001 Liberty Avenue
1500 Liberty Center
Pittsburgh, PA 15222-0000
Counsel for Appellant

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Robert L. Eberhardt, Esq.
Kelly R. Labby, Esq.
Office of the United States Attorney
700 Grant Street, Suite 4000
Pittsburgh, PA 15219-0000
Counsel for Appellee
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OPINION OF THE COURT
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NYGAARD, Circuit Judge.
Appellant Donald Cesare pleaded guilty to a two-count
information charging him with bank robbery under 18 U.S.C. §
2113(a), and armed bank robbery under 18 U.S.C. § 2113(d).
After reviewing the § 3553(a) factors, the District Court
sentenced Cesare to fifty-three months imprisonment on both
counts, to be served concurrently. Additionally, Cesare was
ordered to serve a term of supervised release for three years on
Counts One and Two, to be served concurrently. Pursuant to 18
U.S.C. § 3013(a)(2)(A), the District Judge also ordered Cesare
to pay a special assessment of two hundred dollars — one
hundred dollars for each count.
Defense counsel objected at the sentencing hearing,
initially arguing that Cesare should receive a one hundred dollar
special assessment, given that Cesare should only receive one
sentence. The Government did not object. The District Court
agreed and ordered Cesare to pay a one hundred dollar special
assessment. Before judgment was entered, however, the
District Judge had the parties return to the courtroom, where he
explained that after “further reflection, it is my view that the
special assessment is --- should be $200, and that is per the

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Our jurisdiction is found in 28 U.S.C. § 1291. We also1
have jurisdiction under 18 U.S.C. § § 3742(a)(1) and (a)(2),
which gives us jurisdiction over sentences imposed in violation
of law. See United States v. Cooper, 437 F.3d 324, 327-28 (3d
Cir. 2006).
We exercise plenary review over the District Court's2
resolution of constitutional issues, including legal questions
concerning Double Jeopardy challenges. United States v. Dees,
467 F.3d 847, 853 (3d Cir. 2006).
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statute, and I’m of the view that the statute controls.” Defense
counsel again objected, arguing that Cesare should only get one
sentence of imprisonment, one term of supervised release and
one assessment of one hundred dollars. The District Court
rejected that argument, but noted it was preserved for purposes
of appeal. On appeal, Cesare does not challenge the validity of
his convictions or his actual sentence, but challenges only the
structure in which his sentence was imposed.1
I.
The Government concedes that Cesare improperly
received concurrent sentences for lesser included offenses, and
that such a sentence violates double jeopardy. We agree. The2
federal bank robbery statute makes each aspect of a bank
robbery a separate offense. Therefore, bank robbery, 18 U.S.C.
§ 2113(a), is a lesser included offense of armed bank robbery,
18 U.S.C. § 2113(d). Because each count charged a crime
defined by the statute, the District Court erred by imposing
separate sentences for each --- even though it ordered the terms
of imprisonment to be served concurrently. See Government of
Virgin Islands v. Dowling, 633 F.2d 660, 668 (3d Cir. 1980).

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Faced with an identical error in United States v. Beckett,
208 F.3d 140, 149 (3d Cir. 2000), we vacated the sentence for
the lesser included offense and permitted the other to stand.
Typically, we would do the same here and vacate the sentence
for the lesser included offense of bank robbery. See e.g. United
States v. Corson, 449 F.2d 544, 551-52 (3d Cir. 1971) (en banc).
The separate, one hundred dollar special assessment on each
offense of conviction, however, complicates our analysis and
disposition.
II.
In Rutledge v. United States, 517 U.S. 292 (1996), the
Supreme Court instructed that “18 U.S.C. § 3013 requires a
federal district court to impose a . . . special assessment for
every conviction.” The Supreme Court noted that because “such
an assessment was imposed on both convictions in this case[,]
. . . [as] long as § 3031 stands, a second conviction will amount
to a second punishment.” Id. at 301. The result in Rutledge was
that one of Rutledge’s convictions, as well as his concurrent
sentence, were held to be an unauthorized punishment for a
separate offense and therefore the conviction itself had to be
vacated. Id. at 307.
Here, the Government asks that we vacate only the
imprisonment and supervised release portion of the sentence for
bank robbery and leave the two special assessments intact.
According to the Government, such a remedy is acceptable
because special assessments are not punishments. That position
is untenable in light of Rutledge, a case which the Government
mentions only in passing in a footnote. See also United States v.
Kimbrough, 69 F.3d 723, 729 (5th Cir.1995), cert. denied, 517
U.S. 1157 (1996) (“As long as a sentence carries a mandatory
special assessment, it is a separate punishment for double
jeopardy purposes.”). Thus, if both of Cesare's convictions were

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Our holding in Miller has been called into question3
recently as lacking any precedential authority because it
conflicts with our prior decision in United States v. Gricco, 277
F.3d 339 (3d Cir. 2002). See United States v. Tann, --- F.3d ---,
2009 WL 2581433 (3d Cir. 2009). Inasmuch as our holding in
Gricco conflicts with the Supreme Court’s decision in Ball v.
United States, 470 U.S. 856 (1985) and Rutledge v. United
States, 517 U.S. 292 (1996), our opinion in Tann reaffirmed our
holding in Miller and determined we are not bound by our prior
decision in Gricco.
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to stand, § 3013 “requires” the District Court “to impose a . . .
special assessment” for each one. Rutledge, 517 U.S. at 301.
This, however, cannot withstand constitutional scrutiny.
We have recently held that where a defendant was
erroneously convicted of the same offense under two separate
counts, such a conviction unfairly subjects him to separate one
hundred dollar special assessments.” United States v. Miller,
527 F.3d 54, 74 (3d Cir. 2008). Indeed, we determined that the3
entry of separate convictions saddles a defendant with separate
one hundred dollar special assessments and threatens him with
the “potential adverse collateral consequences” the Supreme
Court was concerned about in Rutledge. Id. at 73. See also
Rutledge, 517 U.S. at 302. Thus, the two separate special
assessments in this case constitute impermissible double
punishments and, as such, offend double jeopardy.
Cesare does not argue that his conviction for bank
robbery under 18 U.S.C. § 2113(a) is a lesser included offense
of his conviction for armed bank robbery under 2113(d), and, as
such, must be vacated. He only challenges his ultimate
sentence. We choose, nonetheless, to exercise our limited
authority under FED.R.CRIM.P. 52(b) to correct this error. Under

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Rule 52(b), a plain error that affects substantial rights may be
considered even though it was not brought to the court's
attention. See also United States v. Young, 450 U.S. 1, 15
(1985) (noting that Rule 52(b) is to be used sparingly and “to
correct only ‘particularly egregious errors.’”). The Rule
prescribes a plain error standard of review in these
circumstances. See United States v. Olano, 507 U.S. 725, 731,
732 (1993).
A defendant must satisfy a four-prong test to be
successful under plain error review: there must be (1) an error;
(2) that is plain; (3) which affects substantial rights; and (4)
seriously impairs the fairness, integrity, or public reputation of
judicial proceedings. See Olano, 507 U.S. at 732; United States
v. Wolfe, 245 F.3d 257, 260-61 (3d Cir. 2001). We have already
satisfied the first point of inquiry. The District Court’s entry of
separate convictions for Counts One and Two of the criminal
information was error. 18 U.S.C. § 2113(a) is a lesser-included
offense of 18 U.S.C. § 2113(d). Beckett, 208 F.3d at 149; see
also Dowling, 633 F.2d at 668. Likewise, we find that the error
was plain, satisfying the second prong of the analysis.
We have previously held that bank robbery is a lesser
included offense of armed bank robbery. Beckett, 208 F.3d at
149. This holding is fixed in our law, and implicates the double
jeopardy question. See e.g. United States v. Williams, 344 F.3d
365, 372 n.2 (3d Cir. 2004). In United States v. Jackson, we
held that a district court’s entry of separate convictions for the
same offense directly affected a defendant’s substantial rights.
443 F.3d 293, 301 (3d Cir. 2006). We determined that the right
“to be free from duplicative prosecutions and punishments is a
hallmark of American jurisprudence.” Id. That observation is
true in this case and we find that Cesare’s substantial rights have
been affected by the entry of separate convictions for Counts

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One and Two of the information. See also Miller, 527 F.3d at
73.
The fourth inquiry under plain error review requires us to
determine whether the District Court’s error seriously affected
the fairness, integrity or public reputation of the judicial
proceedings. Miller, 527 F.3d at 73. In both Miller, Jackson,
and most recently in United States v. Tann, --- F.3d ---, 2009
WL 2581433 (3d Cir. 2009), we determined that although a
district court imposes concurrent sentences for separate
convictions, its entry of the convictions “seriously affected the
fairness of the sentencing proceedings because the defendant
received two special assessments of $100 instead of one.” Id.
(citing Jackson, 443 F.3d at 301). We apply that holding here
and find that the entry of separate convictions on Counts One
and Two seriously affected the fairness of the District Court’s
proceedings. Put another way, leaving this error uncorrected
would seriously affect the fairness and integrity of this
proceeding. Therefore, under the plain error standard, we may
notice this double jeopardy error present in Cesare’s dual
convictions.
III.
Having determined that Cesare’s conviction for bank
robbery, as well as the concurrent sentence and imposition of an
additional special assessment, constitutes an unauthorized
punishment for the same offense, we turn to the appropriate
remedy. We have previously found that where a defendant was
erroneously convicted for the same offense under two statutory
provisions, “the only remedy consistent with Congressional
intent is for the District Court, where the sentencing
responsibility resides, to exercise its discretion to vacate one of
the underlying convictions.” Miller, 527 F.3d at 74 (quoting
Ball v. United States, 470 U.S. 856, 864 (1985)). Accordingly,

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we will remand this matter to the District Court with instructions
for it to vacate Cesare’s conviction for bank robbery pursuant to
18 U.S.C. § 2113(a) and for any other proceedings consistent
with this opinion.

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