593 F.

2d 223

GOVERNMENT OF the VIRGIN ISLANDS, PlaintiffAppellee,

v.
Gary GRAVES, Defendant-Appellant.
No. 78-1538.

United States Court of Appeals,

Third Circuit.
Argued Dec. 14, 1978.
Decided Feb. 16, 1979.

Ishmael A. Meyers, U. S. Atty., David W. Denton, Sp. Asst. U. S. Atty.,

Charlotte Amalie, St. Thomas, V. I., for plaintiff-appellee.
Bernard Van Sluytman, Birch, De Jongh & Farrelly, Charlotte Amalie, St.
Thomas, V. I., for defendant-appellant.
Before SEITZ, Chief Judge, and WEIS and GARTH, Circuit Judges.
OPINION OF THE COURT
GARTH, Circuit Judge.
This appeal requires us to construe a statute of the Virgin Islands1 which
proscribes the fraudulent use of credit cards. The proper interpretation of
the statute was not one of the issues raised or briefed on appeal. However,
at our request counsel discussed this issue with us at oral argument. Just as
we are satisfied that the contentions raised by the appellant Graves in his
brief on appeal have no merit, we are equally satisfied that his sentence
which was imposed for violations of 14 V.I.C. 3004 was not authorized
and must be vacated.

* Gary Graves was arrested on June 22, 1976. A six-count information was
filed against him. Four of the six counts were dismissed on the government's
motion after Graves had pled guilty to Counts III and IV. Counts III and IV
charged violations of 14 V.I.C. 3004 in that Graves, on June 22, 1976, had

fraudulently used a Mastercharge Card issued to one "Muffy Kamara" to obtain

services from The New Windward Hotel and Hertz Rent-A-Car.
2

Graves was sentenced to jail on July 30, 1976, for a term of one year under
Count III and for a term of one year under Count IV. However, the judgment
provided that he was to serve only six months with respect to Count III and only
two months with respect to Count IV, both sentences to be served
consecutively, with the balance of each sentence to be suspended. In addition,
Graves was placed on unsupervised probation for one year. In effect, therefore,
Graves was required to serve eight months of the combined 24-month sentence,
with 16 months suspended, and thereafter was to serve 12 months on
unsupervised probation.2

The problems presented on this appeal were compounded in large part by

Graves' initial self-representation and by a sparse and incomplete record. As
best we can glean from the sentencing transcript and from Graves' numerous
applications and letters to the district court, it appears that prior to Graves'
sentencing on the credit card charges brought in the Virgin Islands, he had been
charged in the Eastern District of New York with an apparently unrelated crime
of mail theft. According to a letter written by Graves to the district court judge
in the Virgin Islands, the mail theft charge had resulted in a federal detainer
having been lodged against Graves at some time prior to his Virgin Islands
sentencing. Graves asserted in that letter that on August 30, 1976 he was
transferred to the Eastern District of New York where on January 7, 1977 he
was sentenced to two years imprisonment on the mail theft charge. That
sentence was imposed to run consecutively to the Virgin Islands sentence with
which we are here concerned.

It is impossible to tell from the record where Graves was incarcerated at the
time each of his two Rule 35 motions3 was filed. In fact, Graves' present
whereabouts are not even known to his appointed counsel let alone to the
United States Attorney for the Virgin Islands. To this extent, therefore, we are
not clear as to what time Graves has served on each of his two sentences.
Hence, we cannot with any accuracy determine the effect of the district court's
ruling on Graves' Virgin Islands incarceration or on his probationary term.
Suffice it to say that on September 12, 1977 the district court judge in the
Virgin Islands denied Graves' motion to correct his Virgin Islands sentence,
expressing the view that there was no illegality in the sentence. Graves
appealed from the September 12, 1977 order denying his motion. Thereafter,
counsel was appointed to assist him in prosecuting his appeal.4

II

Graves' counsel claimed in his brief on appeal that Graves had been:

6
"denied
his Sixth Amendment Rights and, thus, due process of law and . . . error was
committed by accepting defendant's guilty plea and depriving defendant of a hearing
on motion to correct his sentence.
7I) By discounting defendant's understanding of the plea bargain.
8 By accepting defendant's guilty plea in light of the varying representations as to
II)
the plea bargain.
9 By depriving defendant of a hearing on his post-sentence motion to correct the
III)
sentence in light of his allegations by motion."
10

Brief of Appellant at 1.5 If we were to confine ourselves to the arguments so

raised, we would have no alternative but to affirm the district court's order of
September 12, 1977. As we have noted, n.3 Supra, Fed.R.Crim.P. 35 does not
authorize a district court to correct a sentence imposed in an illegal manner
unless a motion seeking that relief is brought within 120 days after sentence
was imposed. Indeed, the district court has no jurisdiction to grant relief where
the 120-day time period has expired. United States v. Dansker, 581 F.2d 69 (3d
Cir. 1978); United States v. Buechler, 557 F.2d 1002 (3d Cir. 1977); United
States v. Robinson, 457 F.2d 1319 (3d Cir. 1972). Here, Graves had taken no
appeal from his sentence imposed July 30, 1976. Hence, his Rule 35 motions
which were filed on January 25 and July 8, 1977, respectively, were filed far in
excess of the Rule 35 limitation of 120 days. Accordingly, the three grounds
raised in Graves' brief on appeal are barred by this provision of Rule 35.6

11

On the other hand, Rule 35 does permit the correction of an illegal sentence (as
contrasted with a sentence imposed in an illegal manner) at any time, and as we
construe 14 V.I.C. 3004 it appears to us that the district court may well have
imposed a sentence upon Graves which exceeded permissible limits.
Accordingly, regarding that issue as the only viable issue on this appeal, prior
to argument we wrote to counsel and asked for their views as to the correct
interpretation of 14 V.I.C. 3004. We therefore turn to a consideration of 14
V.I.C. 3004 in order to determine whether the provisions of that statute were
properly applied to Graves.

III
12

As stated above, Graves had pled guilty to Counts III and IV charging him with
violating 14 V.I.C. 3004.7 Neither count by its terms specified the precise
sum of money or services which Graves was charged with having obtained by

credit card fraud. All that can be ascertained from the criminal information to
which Graves pled is that in each instance the services did not exceed $100. Of
greater importance, the record is completely devoid of any proofs which would
establish the exact value of the services which Graves obtained from Hertz and
from The New Windward Hotel in violation of 3004. The government
contended in its brief that Graves had committed two violations of 14 V.I.C.
3004, each of which was charged in a separate count; that the government was
therefore required to prove two separate credit card uses; that each count clearly
required proof of elements that the other count did not; and that the conviction
for separate offenses was accordingly appropriate.
13

To that extent, we do not question the government's analysis. Unfortunately,

however, from the government's standpoint in this case, its analysis does not go
far enough, for it ignores the plain meaning of a term of the statute which
measures the total services obtained by fraud within a six-month period. The
terms of the statute relevant here provide that:

14 person who, with intent to defraud . . . a(n) . . . organization providing . . .

"(a)
services . . . obtains . . . services . . . by representing . . . that he is the holder of a
specified card . . . violates this subsection and is subject to the penalties set forth in
subsection (a) of section 3010 of this chapter, if the value of All . . . services . . .
Obtained . . . does not exceed one hundred dollars ($100) dollars in any six (6)
month period. The violator is subject to the penalties set forth in subsection (b) of
section 3010 of this chapter, if such value does exceed one hundred ($100) dollars in
any six (6) month period."
15

14 V.I.C. 3004 (emphasis added).

16

The penalties to which 14 V.I.C. 3004 refers, are set out in 14 V.I.C. 3010.8
Under that section a 3004 violator, who has not obtained services by credit
card fraud of more than $100 in a six-month period, is subject to a maximum
fine of $1,000 or imprisonment for one year or both. However, if the amount of
services obtained by fraud exceeds $100 in a six-month period, then the
violation of 3004 which has been committed subjects the violator to a
sentence of up to $3,000 or three years in jail, or both.

17

Unfortunately, we do not have the benefit of any legislative history or

expression to aid us in construing the meaning and application of 3004. Even
though the language of the statute is plain and appears to be straightforward, it
soon becomes apparent that when its provisions are applied to particular factual
situations, additional analysis is required so as to give proper effect to its
provisions.9

18

We are instructed that "the starting point in every case involving construction
of a statute is the language itself." Ernst & Ernst v. Hochfelder, 425 U.S. 185,
197, 96 S.Ct. 1375, 1383, 47 L.Ed.2d 668 (1976). Heeding this reminder, it is
at least evident from the language of 3004 that prior to the imposition of
sentence by the district court for a violation of that statute, there must appear in
the record proof of the value of "all . . . services . . . obtained . . . in any six (6)
month period" in order to permit the district court judge to ascertain whether
the defendant is subject to the penalties of subsection (a) or (b) of 14 V.I.C.
3010. It is also evident to us that the "six months" provisions of 3004 do not
describe an element of the substantive offense proscribed, but rather are
concerned only with establishing limitations on sentencing.10 14 V.I.C. 3004
precludes the imposition of the greater penalty set out in 14 V.I.C. 3010(b)
whenever the total value of all fraudulent credit card use in any six-month
period (from the date of the first violation proved) does not exceed $100. To
effectuate the statute's purpose in differentiating between the lesser and greater
penalties prescribed, the proofs must focus on the total sum of all goods,
services or money fraudulently obtained within the relevant six-month period
rather than on the number of separate transactions in which the defendant has
engaged. Thus, an essential element in the government's proof of a violation of
3004 must be the total sum of all services obtained by credit card fraud in the
six-month period.11

19

Moreover, regardless of the number of violations charged, the total Sentence

which may be imposed for violations totaling less than $100 within the relevant
six-month period (measured from the date of the first violation proved) may
not exceed one year imprisonment or $1,000 fine or both.14 V.I.C. 3010(a).
Thus, although individual sentences may be imposed for each violation proved,
the total sentence, where the aggregate violations are less than $100, may not
exceed the penalties prescribed by 3010(a). If the penalty imposed for the
initial violation is the statutory maximum (i. e., $1,000 and one year in prison),
no additional penalties may be imposed for convictions of subsequent
violations which may have occurred in the relevant six-month period. If, on the
other hand, the penalty imposed for the first violation is less than the
maximum, additional penalties may be imposed for each subsequent violation
during the relevant six-month period until in total the maximum penalty is
reached.12

20

If we were to interpret 3004 otherwise, there would be no meaning left to that

statute's six-month limitation, as each successive violation within the six-month
period might then give rise to a separate sentence of one year in jail and a
$1,000 fine. Conceivably, under such an interpretation, it would be possible for
five $10 violations of 3004 which were committed within six months to result

in a sentence of five years and a $5,000 fine. Such a result, however, is negated
by the very terms of 3004.
21

Applying this analysis to the instant case, it is readily apparent that although
Graves was charged with defrauding both The New Windward Hotel and Hertz,
the record reveals no evidence that the total amount of services obtained by
Graves' fraudulent credit card use exceeded $100 within a six-month period.
We know by the information itself and by Graves' plea that both transactions
took place on the very same day, June 22, 1976. There are no other proofs
indicating other credit card uses by Graves which come within the purview of
3004 and which occurred during the balance of that six-month period.

22

Although proof of all value is absent in this case, Graves' guilty plea need not
be vacated for the counts to which Graves pled guilty alleged that Graves had
obtained services of Some value. United States v. Lancer, 508 F.2d 719, 725
(3d Cir.) (en banc), cert. denied, 421 U.S. 989, 95 S.Ct. 1992, 44 L.Ed.2d 478
(1975). Lancer involved a statute, 18 U.S.C. 641, analytically identical to the
one at issue here. That statute prohibits embezzlement or theft of public money,
property or records and imposes two levels of penalties depending upon the
value of the property converted. If the value is proved to be under $100, the
penalty is limited to a fine not in excess of $1000, a prison term not in excess of
one year, or both. If the value of the property converted exceeds $100, the
penalty is substantially greater. In Lancer, as is the case here, the indictment
alleged no specific value for the 364 stolen blank postal money orders and no
proof of value was established at the time Lancer entered his guilty plea. We
there held that in the absence of proof of value only the lesser penalty could be
imposed.

23

Here the district court sentenced Graves to a total of two years: one year
imprisonment on each of Counts III and IV. This excessive sentence was
imposed even though the maximum sentence to which Graves could be subject
under 3004 and 3010(a) was a jail term of one year. Hence, even though 16
months of that sentence was suspended, the sentence so decreed was illegal, as
it exceeded the maximum sentence permitted by statute.

24

Because the two counts to which Graves pled guilty cannot, on this record,
support a sentence of more than one year, we are obliged to vacate Graves'
sentence as to both counts and remand for resentencing.13

III
25

We will vacate the sentence imposed upon Graves under Counts III and IV and

25

We will vacate the sentence imposed upon Graves under Counts III and IV and
direct that Graves be resentenced14 on both counts in a manner not inconsistent
with this opinion.

14 V.I.C. 3004

The judgment of sentence entered by the district court incorrectly stated that
Counts III and IV to which Graves pled guilty charged him with fraudulent Use
of a credit card (Count III) and Obtaining a credit card by fraudulent means
(Count IV). In fact, both counts of the information charged only fraudulent Use
and the record clearly reveals that Graves pled guilty only to fraudulent use of a
credit card. The incorrect characterization as set forth in the judgment of
sentence, however, had no bearing on Graves' sentence nor does it have any
bearing on our disposition

Fed.R.Crim.P. 35 provides 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 (120 days after sentence or judgment of appeal) for reduction of
sentence."

On October 14, 1977 Graves filed a third motion pursuant to 28 U.S.C. 2255.
In this motion he alleged that he had pled guilty to two counts of the
information, but that the judgment entered was at variance with his plea; that
the court was not informed of the factual basis for his plea bargain with the
United States Attorney (i. e., cooperation with the postal inspectors), and as a
result the court did not honor the "concurrent time" agreement which Graves
alleges; and that his counsel was incompetent in advising him to waive a
presentence report. The disposition of this motion is not before this court

The argument made in Graves' brief under Point III was as follows:
"Although defendant motioned the District Court on the basis of an illegal
sentence, it was obvious also that he sought to set aside his guilty plea and
sentence for alleged misrepresentations by appointed counsel and the United
States Attorney. As such the District Court could have well considered
defendant's motion as raising a Rule 32(d) motion to withdraw his guilty plea.
The District Court denied defendant's post-sentence motion as being moot since
defendant had completed serving his sentence."

The legality of Graves' sentence itself was not challenged on appeal. The
argument advanced by Graves' counsel, which was consistent with the issues
briefed, was that the district court should have construed the Rule 35 motion
from which appeal was taken as one brought under Fed.R.Crim.P. 32(d) for

withdrawal of guilty plea and for vacation of judgment due to manifest

injustice. However, nothing appears in Graves' moving papers which even
remotely suggests that he sought to withdraw his guilty plea or that the district
court should have considered his motion in that light
7

That section provides as follows:

3004. Fraudulent use of credit card
A person who, with intent to defraud the issuer or a person or organization
providing money, goods, services or anything else of value or any other person,
uses, for the purpose of obtaining money, goods, services or anything else of
value, a credit card obtained or retained in violation of this law or a credit card
which he knows is forged, expired or revoked or who obtains money, goods,
services or anything else of value by representing, without the consent of the
cardholder, that he is the holder of a specified card or by representing that he is
the holder of a card and such card has not in fact been issued, violates this
subsection and is subject to the penalties set forth in subsection (a) of section
3010 of this chapter, if the value of all moneys, goods, services and other things
of value obtained in violation of this subsection does not exceed one hundred
($100) dollars in any six (6) month period. The violator is subject to the
penalties set forth in subsection (b) of section 3010 of this chapter, if such value
does exceed one hundred ($100) dollars in any six (6) month period. . . .

14 V.I.C. 3010 "Penalties" provides:

(a) A person who is subject to the penalties of this subsection shall be fined not
more than one thousand ($1,000) dollars or imprisoned not more than one (1)
year or both.
(b) A person who is subject to the penalties of this subsection shall be fined not
more than three thousand ($3,000) dollars or imprisoned not more than three
(3) years or both.

At oral argument the government agreed that it is appropriate to construe

3004 as we have construed it in this opinion

10

An analogous situation may be found in United States v. Corson, 449 F.2d 544
(3d Cir. 1971) (En banc ) where we have required a general sentence for
different counts under the bank robbery statute. See also United States v.
Gomez, 593 F.2d 210 (3d Cir., 1979) (En banc )

11

Obviously, nothing in our construction of 3004 precludes the government

from prosecuting each separate violation of 3004 and obtaining multiple

convictions based on proof of each separate use. The government may file
separate informations charging each fraudulent use or, as was the case here,
may file one information charging each separate violation in separate counts.
As indicated, the provisions of 3004 only limit the sentence which may be
imposed, not the number of convictions which may be obtained
12

By the same token, a defendant convicted of multiple violations of 3004

where the total value is more than $100 during a six-month period
(commencing with the first violation proved) may not be sentenced to a total
penalty which exceeds the limits of 14 V.I.C. 3010(b). Thus, the district court
may impose a sentence or fine for each violation proved, but may not impose a
sentence totalling more than 3 years in prison and $3,000 in fines when all the
convictions are based on violations occurring in the relevant six-month period

13

As we have previously noted, Graves' whereabouts being unknown, we are

uncertain as to his present prison and probation status, particularly as it may
affect his Virgin Islands sentence. If for no other reason, this alone would
prevent us from considering any suggestion that the sentencing issue is moot

14

We naturally assume the district court will comply with all other relevant
requirements pertinent to resentencing. See Ex Parte Lange, 85 U.S. 163, 18
Wall. 163, 21 L.Ed. 872 (1874); United States v. Gomez, supra
We note that Graves' presence at reduction of sentence proceedings is not
required by Fed.R.Crim.P. 43(c)(4).