Madison Wilson v. United States

OPINION

JAMES M. CARTER, Circuit Judge.

The judgment of the district court in denying the motion to vacate and set aside the judgment and commitment dated February 19, 1962, is affirmed. We find that the requirement of United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972) has been met in this case by the district judge’s reconsideration of the earlier sentence. See United States v. Eidum, 474 F.2d 581 (9 Cir. 1973). Tucker does not require resentencing, but rather, mandates that prior sentences be reconsidered. This has been done in the present case. We find no basis in this case for refuting the district judge’s determination of the impact of the three prior invalid marijuana convictions on his sentencing of petitioner for the six heroin violations.

We take note of Leano v. United States, 494 F.2d 361 (9 Cir. 1974). The case was not cited in the briefs. In that case this court cited United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972) and the case below, Tucker v. United States, 431 F.2d 1292 (9 Cir. 1972) and remanded the case for “resentencing without consideration of any prior conviction which [is] invalid under Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799.”

United States v. Eidum, 474 F.2d 581, 582 (9 Cir. 1973) states the general rule in this circuit:

“This court will not refute the judge’s own estimation of the deleterious impact of prior convictions on his determination of sentence. The record shows on its face that the judge did not consider those convictions in imposing sentence.” The rule was followed and relied on by Dukes v. United States, 492 F.2d 1187 (9 Cir. 1974).

Leano, supra, created an exception to Eidum and Dukes providing that where the record of sentencing shows a “reasonable probability” that the prior invalid conviction played a vital role in the fixing of the questioned sentences, a reversal for resentencing was required.

We think Leano is distinguishable from our case. There this court stated: “The initial motion was denied by the sentencing judge, who observed in passing that he had not considered Leano’s prior conviction when fixing punishment. . . . [T]he transcript of the proceedings on Leano’s arraignment for sentence makes evident the ‘reasonable probability’ (Tucker v. United States, 431 F.2d 1292 . . .) that the prior conviction played a vital role in the fixing of the questioned sentence.” 494 F.2d at 362.

In Leano the sentences were for violation of 21 U.S.C. § 176a, which provided for a term of not less than five and not more than twenty years for a first offender, and a term of not less than ten years and not more than forty years for a second offender. The United States Attorney, on filing the information showing the prior conviction, recommended the minimum of ten years for a second offender. The court agreed and so sentenced. There was no further discussion.

There was thus no support in the record for the court’s statement that it had not relied on the prior conviction. Instead, it was clear that the trial judge imposed the ten-year sentence because of the prior conviction.

Leano is a case of a disclaimer, but is distinguished from Eidum and Dukes because the actual sentence of ten years as a stated “minimum” must be for an offense with a prior. Thus the sentence as a minimum of ten years can only be for priors. There was an actual contradiction of the disclaimer by the sentence.

Tucker, both in our court and also in the Supreme Court, relied on the fact that there was a maximum sentence imposed of 25 years upon one who already had unconstitutionally served more than ten years beginning at age 17, including five and one-half years on a chain gang. 404 U.S. at 448, 92 S.Ct. 589. There was no record of disclaimer by the trial judge of consideration of priors.

In our case there was an express disclaimer of consideration of priors which brings us back to Eidum and Dukes that the disclaimer may not normally be overridden. It is not a Leano situation because the actual sentence is not inconsistent with the disclaimer. It is not a Tucker case because Tucker had no disclaimer and was an extremely aggravated situation.

In our case the transcript of the original sentencing on February 19, 1962, shows much more than appears in Leano.¹ The sentencing court reviewed the prior record of the defendant “which included offenses other than those set forth dating back to the 1920’s.” The court considered the defendant’s background and his employment record, which was “almost nil.” The court considered his narcotics record in the past and information that defendant was suspected of being active in the narcotics traffic since he was out on parole in 1960.

The penalty for first and second offenders was the same as in Leano. (Five years to twenty years for a first offender and ten years to forty years for a second offender.) Wilson was before the court on convictions of six counts involving heroin, three for violation of 26 U.S.C. § 4705(a) and three for violation of 21 U.S.C. § 174. The court sentenced Wilson to 15 years on each count, to run concurrently. The court took into account the fact that the defendant would be eligible for release in 1800 days, “something between four and five years.”

The case was twice before the district court after the date of sentencing. On the first occasion, on November 27, 1970, the court stated in denying the § 2255 motion:

“At the time that this Court sentenced petitioner, first violations of 26 U.S.C. § 4705(a) and 21 U.S.C. § 174 required the Court to fix a sentence within a penalty range of five to twenty years. The sentence imposed on petitioner falls within this range. The Court did not rely on petitioner’s previous record of convictions in determining the sentence imposed. Other information contained in the presentence report and the gravity of the six offenses petitioner was convicted of at the time formed the basis of the Court’s decision.”

On the second occasion, the court incorporated the paragraph above and again denied the motion to vacate the sentence. There was here no increase in the sentence either by an addition to the number of years or by a statement that he was imposing the “minimum” for second offenders. Leano, supra, fn. 3.

In affirming, we do not hereby adopt a rule that the trial court’s statement that it did not rely on the invalid prior conviction always constitutes sufficient reconsideration to satisfy Tucker. Leano, supra, precludes such a rule. Rather, we hold that where, as here, there is a substantial basis in the record on its face to support the court’s statement of non-reliance, then the reconsideration mandated by Tucker has been performed. Leano does not hold to the contrary, since in that case there was no substantial basis in the record to support a finding of non-reliance.²

Nor should the case be remanded for sentencing before another judge. United States v. Tucker, supra, disposes of this question:

“We cannot agree with the Government that a re-evaluation of the respondent’s sentence by the District Court . will be either ‘artificial’' or ‘unrealistic’.8 ” 404 U.S. at 449, 92 S.Ct. at 592.

The footnote adds:

“But the respondent’s guilt of that offense hardly ‘translates’ into an ‘inescapable’ assumption that the trial judge would have imposed a maximum 25-year prison sentence if he had known that the respondent had already been unconstitutionally imprisoned for more than 10 years. It would be equally callous to assume, now that the constitutional invalidity of the respondent’s previous convictions is clear, that the trial judge will upon reconsideration ‘undoubtedly’ impose the same sentence he imposed in 1953.”

The judgment denying the motion to vacate the sentence is AFFIRMED.

1 . “. . . [T]he Court doesn’t anticipate the need for exceeding the maximum of a second offender, the maximum being very substantial as to a second offender, and in view of the counts here involved there is no question in my judgment that he should be treated as a second offender under the provisions of the applicable statutes.

Mr. Wilson, your presentence report sets forth your prior record which includes offenses other than those set forth dating back to the 1920’s.

There were minor offenses up to that time and then more serious as the years progressed, including the offense that occurred according to the record .

The presentence report covers your family history, born in Chicago, and you are aged 51 years and you have been arrested a number of times and served in various penal institutions and the last material offense, the last material imprisonment, was served at McNeil, is that right?

DEFENDANT WILSON: Yes.

THE COURT: And you have been out now since 1960 under supervision.

Your employment record is almost nil.

Your family background here, your father was accidentally killed by a gunshot wound in 1918. You were a young boy at the time, a young man, and your mother died in 1924 when you were 16 years of age.

The picture isn’t a very good one so far as you are concerned .

Do you have anything you wish to say?

DEFENDANT WILSON: Nothing to say, your Honor.

Do the best you can.

That is all I can say.

THE COURT: Do what?

DEFENDANT WILSON: The best you can.

THE COURT: You don’t mean the most?

DEFENDANT WILSON: No, the less.

THE COURT: Mr. Opendack?

THE COURT: Counts I, III and V are charged under 26 USC 4705(a) and the punishment provided under the United States Code is not less than 10 years on each count, and Counts II, IV and VI charge of violation of Title 21, United States Code, Section 174, and both carry the same penalty provisions of the minimum of 10 years.

It is clear to me, and I think the defendant apparently doesn’t contest it, that he was involved in narcotics extensively, in narcotic traffic in the past and it would appear from the information contained in the report from the Narcotics Agents that they suspected this defendant of being active in the narcotic traffic since he was out on parole.

It isn’t my thought that the defendant should be committed for the rest of his life merely because the offenses charged are such that that might be the time imposed.

It is also clear to me that the minimun [sic] should not be imposed here because this defendant as a second offender is one that is — is at least known to the narcotics bureau as being active.

It is my opinion, therefore, that the sentence will be imposed under one count which I believe is sufficient time to impose here.

He doesn’t get parole of course. He does get good time off. How much time is applicable . [on a 15-year sentence]? ******

MR. MINCKS: (Probation officer) 15 years, 1800 days.

THE COURT: Well, 1800 days is something between four and five years.

THE COURT: Very well. It is the judgment of the Court on the findings of the jury that the defendant is guilty of six counts.

It is the judgment of the Court that the defendant is guilty of all six counts and it is the sentence of the Court that the defendant be committed under the first count for 15 years, and similar sentences on each count to run concurrently.”

2 . We see little difference between remanding for “reconsideration” or for “resentencing.” The mental process used by the trial court on remand is the same.

In United States v. Tucker (404 U.S. 443, 449, 92 S.Ct. 589, 593, 30 L.Ed.2d 592), the Court remanded that case “to the trial court for reconsideration of the respondent’s sentence.” (Emphasis supplied.)

Various cases in other circuits have considered the problem after January 11, 1972, the date of Tucker, supra, in the Supreme Court, and hold that reconsideration alone is sufficient.

The Fifth Circuit has a line of cases after Tucker which follow Lipscomb v. Clark, 468 F.2d 1321 (5 Cir. 1972). In Lipscomb, supra, the court stated: “If the district court finds that the maximum sentence would still be appropriate, an order so setting forth would seem to comply with the requirements of Tucker.” Id. at 1323. Rogers v. United States, 466 F.2d 513 (5 Cir. 1972), cert. denied, 409 U.S. 1046, 93 S.Ct. 546, 34 L.Ed.2d 498 (1972); Torres v. United States, 490 F.2d 862 (5 Cir. 1974); Brown v. United States, 483 F.2d 116, 118 (4 Cir. 1973) and cases cited in note 2. See Russo v. United States, 470 F.2d 1357 (5 Cir. 1972).

In the Eighth Circuit, McAnulty v. United States, 469 F.2d 254, 256 (1972), cert. denied, 411 U.S. 949, 93 S.Ct. 1933, 36 L.Ed.2d 411 (1973) holds that where the trial judge expressly states that the sentence is appropriate, regardless of the invalidity or absence of prior convictions, a remand for resentencing would be pointless. Accord Jorgenson v. United States, 477 F.2d 905 (1973); Ryan v. United States, 485 F.2d 295 (1973), cert. denied, 415 U.S. 979, 94 S.Ct. 1568, 39 L.Ed.2d 876. See Taylor v. United States, 472 F.2d 1178 (1973). There the court distinguished McAnulty, where the trial court stated “the sentence would be the same,” from Taylor where the trial court said “resentencing would be of ‘no consequence’ since the original sentence was still within the permissible limits,” and remanded for resentencing. 472 F.2d at 1180.

The Tenth Circuit is in accord, United States v. Green, 483 F.2d 469 (1973), cert. denied, 414 U.S. 1071, 94 S.Ct. 583, 38 L.Ed.2d 477 (1973) (trial court disavowed reliance on the prior convictions and distinguished Tucker).