William M. Acker, Jr.
Northern District of Alabama
It seems to be inherently unfair to send the case back to me for sentencing under only one count, the gun count, the enhanced count, wthout also giving me the opportunity to resentence under the others.... I'm going to do what I am told. I'm not liking it, and I'm telling you in the record that I wouldn't have it done that way had I known what was going to happen.
[M]y hand are tied with Duck [sic] tape. My mouth's not as I think you can tell, but I can't do anything, but ultimately use my mouth as directed by the Duck [sic] tape. [1]
Appointed
by:
President Ronald Reagan, 1982.
Law
School:
Yale University, L.L.B., 1971.
Military
Service:
U.S. Army, 1946-47.
Prior
Legal Experience:: Graham, Bibb, Wingo & Foster, 1952-57;
Smyer, White, Reid & Acker, 1952-72;
Dominick, Fletcher, Yeilding, Acker, Wood & Lloyd, 1972-82.
Background and Reputation in the Legal Community
After attending college at Birmingham-Southern College and law school at Yale, Judge Acker was a litigation and appellate lawyer in private practice for thirty years, much of that time as a name partner in two law firms in Birmingham. At various times, Judge Acker served as President of the Legal Aid Society, the Birmingham Jaycees, and the Birmingham Area YMCA. Before his appointment, he also was active in Republican Party politics, attending three national conventions as a delegate and serving on the Alabama Republican Executive Committee.
Lawyers give Judge Acker excellent marks for his legal ability. "He has a superior mind." "He thinks beyond the immediate problem brought to him; he puts it in context as a body of law." He is also considered a good and enthusiastic trial judge, although lawyers note that he can be quirky and sometimes takes unique approaches to legal issues. One example was his request for briefs on whether he should recuse himself froma a Klu Klux Klan case following criticism from the Court of Appeals that he appeared to be "hardened against the government." Judge Acker later recused himself from all cases involving the KKK and the public interest group that investigates the Klan in the South, the Southern Poverty Law Center. In general, however, civil lawyers say that Judge Acker is an impartial arbiter. One lawyer noted, "He is a big Republican, but he is more interested in the law and is not biased. He will give you a good legal ruling, whether you like it or not."
Judge Acker took senior status in 1996 and no longer hears criminal cases.
Rodney Hewlett
Offenses::
Conspiracy; Carjacking; Use of a Firearm During a Crime of Violence (two counts).
Trafficking Offense.
Sentence: 108 months + 300 months (gun counts) = 408 months. = 181
months.
Projected Release Date: April 4, 2023.
Rodney Hewlett's crimes were serious, violent, and frightening. Over a two day period, Rodney,
Norman Moore, and Carlos Tiller committed two carjackings and contemplated other serious crimes.
In the first incident, on April 5, 1992, Rodney and Norman Moore solicited a ride from the victim,
Samuel Greer, outside a gas station. According to the PSI, after they traveled for a short distances,
one of the defendants put a gun to Greer's head and took his money. The two men then made Greer
drive along country roads to remote areas of Madison County. At some point, they stopped and Rodney
hit Greer in the chest with a hammer. When they got back in the car they continued to drive around while
Rodney allegedly held a gun to Greer's head. Next Rodney allegedly ordered Greer to jump from the moving
vehicle which he refused to do.
During this portion of the incident, the government claimed that Rodney asked Greer if he had ever played Russian Roulette and pulled the trigger twice with the gun pointed at him.[2] One of the robberts also talked about getting gasoline and a rope to burn and kill him. Finally, Moore stopped the car in a rural area and ordered Greer to take off his clothes and lie in a ditch. When Greer refused to do so, the defendants forcibly removed some of his clothes and drove away. The entire ordeal lasted about two hours.
The following day, the three men, Rodeny, Tiller, and Moore and a juvenile female, rode around together in the car they had stolen from Greer and stopped in various locations with the intent to commit other crimes or simply to make trouble. At a K-Mart shopping center parking lot in Huntsville, Moore shot their handgun in the air. Later, Rodney allegedly poionted the gun out the window at various motorists and other persons. They stopped at a car lot with the intent to steal a car from a salesperson but that plan was not carried out. [3]Eventually, they ended up outside Campbell's grocery store where Tiller and Moore got out of the car instructing Rodney to wait nearby. Tiller and Moore approached the second victim in this case, Donna Burnham, by tapping on her window as she went to pull out from the store. Burnham rolled down here window and gave Moore the directions he requested. Moore then pulled the gun and ordered her out of the car. She blew the horn and screamed to attract attention. Moore forced her out of the car and shoved the gun into her side, ordering her into the backseat. Burnham refused and begged him not to shoot her. As patrons of the store came out to see what was happening, Moore and Tiller got in the car without her and fled.
Rodeny and the other two men were arrested not long after the crimes, Rodney being the last to be apprehended. Rodney mostly admitted his involvement but denied committing the more violent acts that occurred during the rider with Greer. For example, he stated that Moore had been the one who put the gun to Greer's head and who threatened to burn him with gasoline. Rodney was offered a plea to fifteen years but would have been required to testify against his co-defendants. He refused and Tiller got the deal instead. No plea was offered to Moore because the government considered him the ringleader. [4]
After their arrest, Rodney and Moore were charged with two counts of carjacking, [5]consipiracy, and two counts of using a firemarm during the commission of a crime of violence. With Tiller's testimony, the jury convicted both men on all five counts. However, after the trial, Judge Acker granted the defendants' motion to vacate the verdicts on the 924(c) counts on doublt jeapardy grounds. The judge reasoned that because all the elements of the offense set forth in 924(c) could also be found in the crime of carjacking, the crime of carrying a firearm during a violent offense was a lesser included offense of the new carjacking crime. This meant, he though, that only conviction on the "greater" offense of carjacking was permissible under Supreme Court caselaw.[6]
Rodney was only nineteen when he committed these offenses. He had two petty theft convictions when he was fourteen years old and a criminal trespass when he was eighteen, thus he was treated as a first time offender by the Guidelines. because the carjacking statute had only recently been passed, there was not directly applicable Guideline provision. Instead, the probation officer recommended that the closely analogous robbery section be applied. After upward adjustents for the abduction of Greer and the intended abduction of Burnham, Rodney's Guidelines range was 91-121 months. For Rodney, Judge Acker chose 108 months, in the middle of the range. Moore had a more serious criminal record, so he received 175 months. Tiller, on other hand, was sentenced to only 33 months as a reward for his cooporation.
That would have been the end of the case and Rodney could have considered himself lucky to have received only a nine year sentence. However, the government appealed Judge Acker's dismissal of the 924(c) counts and prevailed in the Court of Appeals. In essence, the Eleventh Circuit found a clear Congressional intent that the penalities in the carjacking statute be in addition to any other penalities provided by law, thus trumping the normal double jeapardy analysis. In its opinion, the panel directed Judge Acker to reinstante the verdicts and sentence the defendant's on these two counts. [7]
On Decemebt 15, 1995, a second sentencing hearing was held. Throughout the proceeding, Judge Acker expressed his frustration with the Eleventh Ciruit's double jeopardy analysis, the 924(c) statute, and the remand order. With regard to the double jeopardy issue, the judge was surprised that his analysis had been rejected, statig that "[The 924(c) offense] had exactly the same elements, essential elements.... [I]t never occurred to me that Congress could intend its way around the Fifth Amendment, but apparently it can."[8]
As a result of the reamnd, Rodney faced consecutive sentences for using a firearm during a crime of violence. Under 924(c), a first offense carries a five year sentence which is mandatory and consecutive to any other sentence. At the time, a second conviction under this statute carried a twenty year sentence with the same mandatory and consecutive requirement. Moreover, the Supreme Court had held that the twenty year sentence for a second 924(c) offense applies even to multiple 924(c) counts and penalties is that the second offense occurred on a subsequent date. Nore does it matter whether multiple 924(c) counts rely on the use of the same gun or if the underlying offenses are part of the same conspiracy. [9]
At the second sentencing hearing, Judge Acker was clearly frustrated by the mandatory nature of the 924(c) penalities and that his statute essentially added a completely independent sentencing regime on top of and in addition to the Guidlines sentence for Rodney's crime. He said that for the gun counts, "...the Guidelines dont' have anything to do with it. There is no point in my sitting here talking about the Guidelines.... Forget Guidelines. Guidelines just don't apply. It doesn't make any difference whether these two defendants, either one of them, has 20 murder convictions in their past or nonr."[10]
The remand from the appellate court created an additional problem for Judge Acker. He made clear that he wanted the total sentence to reflect his assessment of the case, but the remand from the Court of Appeals appeared to direct him only to sentence on the gun counts. He began the hearing by asking attorneys whether the Eleventh Circuit opinion permitted him to revisit his sentencing decisions on the other counts. He told them that he felt it was
... inherently unfair to send the case back to me for sentencing under only one
count, the gun count, the enhanced count, without also giving me the opportunity to resentence under
the others, because at the time I sentenced, I was sentencing in the belief that I could not
sentence under the gun count."[13]
After going round this issue several timese with the parties, Judge Acker ultimately concluded
that the panel's opinion did not allow him any choice and that all he could do was sentence
each defendant to twenty-five more years.>[13]
Judge Acker also made it clear that if he had sentenced Rodney on all the counts
simultaneously, his total sentence would have been lower.>[15]
Judge Acker ended the sentencing hearing wishing the defense attorneys luck on their
second trop to the Eleventh Circuit. However, that court rejected their second appeal and the
Supreme Court denied certiorari. Thus, Rodney will be in prison until around the age of fifty.
Commenting on this case many years later, Judge Acker writes, "You can see why I'm not taking
criminal cases anymore.">[17]
Looking back at his short life before prison, Rodney's story is not fact from what one might
have anticipated. He was raised in a single parent home by his mother, who got involved with
drugs when he was elven or twelve. As a result, there was little money or supervision in the home.
He was arrested for the first time when he was fourteen for stealing school supplies. He only
finished 8th grade and was smoking marijuana, snorting cocaine, and drinking heavily as a
teenager. When asked recently why he thinks he committed these offenses he said that beacuse he was partially
paralyzed on his right side since birth, he "thought I had something to prove to others as well
as myself so I did a lot of things just to show people I'm just like them. I'm not making
excuses for my actions because I still knew right from wrong.">[18]
In prison, Rodney reports that he is trying his best to use the time to better himself and have
a plan for success when he is released. He has gotten his GED and taken almost twenty classes
offered at the facilty. He adds that "jail is like school. You get what you put into it....
Don't get me wrong, jail is not designed to rehabilitate a person. You have to want to change
and do what it takes to make hime or her a better person.">[20]
Rodney fathered a child with a seventeen year old girl just before committing these
offenses. He writes that he talks to his son weekly and sends him money from his UNICOR job
when he can. He writes, "I know for a fact my reasons for wanting to change and be a better person
and keep me grounded is first and foremost my son. I want to be the very best father I can be to my
son....">[21]
Rodney feels that fifteen years would have been a sufficient punishment and for hime to learn his lesson. He admits that when he first got prison he "was still doing things that got me in jail because I had all this time and did not see a way out and so I did what I knew best, be a G.D."
He reports that "I've gotten a lot wiser" and that his fellow prisoners now know "he has moved
on with his life" and is not a member of the gang anymore.>[22]
After his honorable discharge in 1977, Richard moved to New
York where he obtained a B.A. in Business Administration from Pace University
and an M.B.A. from New York University.
During his time in New York, he volunteered to teach handicapped children
to swim and he received a public
commendation from the city's mayor for this work.
Compiled from PSI, Sentencing Transcript, appellate
opinions, inmate letters, judge letter, PACER docket sheet.
Sentencing Transcript at 3, 7, 10, United States v. Rodney Hewlett No. Cr-93-AK-137 (December 15, 1995).
Rodney says that it was actually Moore who did these acts but that Greer could not remember which of the robbers was responsible. Rodney reports that Tiller, who cooperated, told the government that Rodney he was the one who held the gun to the victim's head baseed on statements that Moore and Rodney allegedly made to him (since Tiller was not in the car durign the robbery). July 21, 2005 letter from Rodney Hewlett to author at 2 (on file with author).
Rodney reports that this crime did not take place because he refused to be the gunman in the incident and states that Carlos Tiller's testimony supports him on this point. August 22, 2005 letter from Rodney Hewlett to authore at 1 (on file with author).
See August 22, 2005 letter to author at 1 (on file with author)
The offense is technically called Taking Auto by Force-Violence, 18 U.S.C. 2119
Under the Blockburger test to be separate offenses, each crime must contain an element that other does not. See United States v Moore, 831 F.Supp. 335 (D. Ala. 1993).
See United States v. Moore, 43 F.3d 568 (11th Cir. 1995)(holding that Blockburger is a test of statutory construction, and therefore when as here, there is a clear intent for cumulative punichment, that test is not controlling.).
Sent. Tr. at 4.
Deal v United States, 508 U.S. 129 (1993).
Sent. Tr. at 8,9.
Sent. Tr. at 3.
In talking about the appellate opinion, he stated, "I don't like what I read, because it doesn't seem fair...." Sent. Tr. at 3.
Sent. Tr. at 7.
Sent. Tr. at 10.
"I can't go back...remember everything that went through my mind at that time and reconstruct...what I would have done but...in all likelihood it wouldn't have been what I think I've got to do now...." Sent. Tr. at 17.
"Sent. Tr. at 17. Here, Judge Acker could have been suggesting two possible courses of action. First, he simply might have meant he would have selected the lowest possible sentence for Rodney for the Guideline portion of the sentence which would have been 97 months. Or, Judge Acker might have been implying that he would have searched harder for a departure grounds that would have lowered the Guideline sentence so that the aggregate sentence would not have been possible, however, as elsewhere in the transcript, the judge states that he doubted that such grounds existed as none were argued for successfully at either the District Court or the Court of Appeals.See Sent. Tr. at 9.
July 21, 2005 letter from Judge Acker to author at 1 (on file with author).
April 21, 2005 letter from Rodney Hewlett to author at 1 (on file with author)
Id at 2.
Id at 3-4.
Id at 4. Rodney adds that his mother has gotten her life together and has provided a lot of support for him during his incarceration. Id.
August 22, 2005 letter from Rodney Hewlett to author at 2 (on file with author).