685 F2d 322 Gentry v. C Macdougall

685 F.2d 322

James F. GENTRY, Petitioner-Appellant,
Ellis C. MacDOUGALL, Superintendent of the Arizona
Department of Corrections, Respondent-Appellee.

No. 80-5774.

United States Court of Appeals,
Ninth Circuit.

Argued and Submitted April 5, 1982.
Decided Aug. 24, 1982.

Howard A. Kashman, Tucson, Ariz., for petitioner-appellant.

David R. Cole, Asst. Atty. Gen., Phoenix, Ariz., for respondent-appellee.

Appeal from the United States District Court for the District of arizona.

Before WALLACE and NORRIS, Circuit Judges, and BURNS,* District Judge.

NORRIS, Circuit Judge:

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In 1977, James Gentry, driving while intoxicated, struck a taxi, killing both the driver and the passenger. He was convicted on two counts of vehicular manslaughter, under former Ariz.Rev.Stat.Ann. § 13-456(3)(a) (current version at Ariz.Rev.Stat.Ann. § 13-1102 (1978)), and sentenced to consecutive prison terms. Gentry filed a petition for writ of habeas corpus, asserting that the Arizona legislature did not authorize consecutive sentences for multiple deaths caused by a single act of drunk driving, and that such sentences violate the Double Jeopardy Clause of the United States Constitution. The district court denied Gentry's petition. We affirm.


It is settled law that without legislative authorization a court may not constitutionally impose consecutive sentences. See Whalen v. United States, 445 U.S. 684, 689, 100 S.Ct. 1432, 1436, 63 L.Ed.2d 715 (1980). In this case, however, consecutive sentences were authorized under § 13-456. In State v. Miranda, 3 Ariz.App. 550, 416 P.2d 444 (1966), the Arizona Court of Appeals affirmed consecutive sentences imposed under § 13-456 on three counts of manslaughter arising from one act of drunk driving. The Arizona court reasoned that, by defining manslaughter under § 13-455 as "the unlawful killing of a human being without malice," the Arizona legislature intended to authorize punishment under § 13-4561 for each human being killed, not simply for each unlawful act.2 416 P.2d at 452; see also Arizona v. Gunter, 132 Ariz. 64, 643 P.2d 1034 (App.1982). Absent extraordinary circumstances, which do not obtain in this case, a federal court is bound by a state court's construction of the laws of that state. Mullaney v. Wilbur, 421 U.S. 684, 690-91, 95 S.Ct. 1881, 1885-86, 44 L.Ed.2d 508 (1975). We thus hold that the consecutive sentences imposed in this case were authorized by the Arizona legislature.


Gentry next contends that the Double Jeopardy Clause prohibits the legislature from authorizing consecutive sentences for a single unintentional act. The argument is meritless. "(T)he Fifth Amendment double jeopardy guarantee serves principally as a restraint on courts and prosecutors. The legislature remains free under the Double Jeopardy Clause to define crimes and fix punishments...." Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977); see generally Note, Twice in Jeopardy, 75 Yale L.J. 262, 302-11 (1965). The legislative authority to fix punishment is not without constitutional limitations, but those limits derive from the Eighth Amendment prohibition against cruel and unusual punishment. See Bell v. United States, 349 U.S. 81, 82-83, 75 S.Ct. 620, 621-622, 99 L.Ed. 905 (1955); see generally Enmund v. Florida, --- U.S. ----, ----, 102 S.Ct. 3368, 3371, 73 L.Ed.2d ---- (1982). Appellant makes no claim that his sentence constituted cruel and unusual punishment. Accordingly, we AFFIRM.


The Honorable James M. Burns, United States District Judge for the District of Oregon, sitting by designation


Section 13-456 provided in pertinent part:

A. Manslaughter is of three kinds:


In the driving of a vehicle:

(a) In the commission of an unlawful act, not amounting to a felony, with gross negligence....


Gentry argues, without supporting authority, that a legislature is constitutionally required to use specific statutory language in imposing multiple sentences for a single unintentional act. We know of no such requirement and reject Gentry's argument as meritless