U.S. v. Cavazos, 75--4066
| Citation | 530 F.2d 4 |
| Decision Date | 15 April 1976 |
| Docket Number | No. 75--4066,75--4066 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Victor Sandoval CAVAZOS, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
James L. M. Miller, San Antonio, Tex., for defendant-appellant.
John Clark, U.S. Atty., W. Ray Jahn, Robert S. Bennett, Asst. U.S. Attys., San Antonio, Tex., for plaintiff-appellee.
Appeal from the United States District Court for the Western District of Texas.
Before DYER and CLARK, Circuit Judges, and KRAFT *, District Judge.
Cavazos complains of the sentence imposed upon him based upon irrelevant extraneous hearsay data. We vacate and remand for resentencing.
Cavazos pled guilty to possession with intent to distribute approximately 10 ounces of heroin in violation of 21 U.S.C.A. § 841(a)(1). At the time of sentence the court was informed that Cavazos had never before been involved in criminal activity and had no prior record. In response the court drew a hypothetical situation of a bank robber who inferentially had robbed banks before, but who was apprehended for the first time when
In further colloquy with the court, counsel for Cavazos again referred to the lack of a previous record and asked the court how may prisoners had stood before it without any record. The court responded,
Most of them, most of the ones that have appeared before me in the drug traffic have had no prior arrest record. But you've got to remember too that computer statistics show from the Bureau of Prisons and the FBI that an average of six unsuccessful transactions, sometimes even conspiracies have been concluded before the person was ever apprehended. So, you can't always go by the fact that the person has not been apprehended. Sometimes people, according to the statistics of the FBI and the Bureau of Prisons show that a person gets by with ten, fifteen, twenty, sometimes as many as 200 narcotics sales. Narcotic sales are done undercover. They are a little more difficult to apprehend than some of our most heinous crimes such as murder, rape and things of that kind. But Mr. Miller, when you take into account the number of lives that are destroyed by a person who engaged in this type of elicit (sic) traffic, you can't very well say that he doesn't have a record now. It's a bad, bad record. * * *
The court then made it clear that he never granted probation in a case of this kind and imposed a maximum sentence of 15 years imprisonment followed by a special parole term of 15 years.
We, of course, do not review the severity of a sentence imposed within the statutory limits. But we have appellate responsibility to give 'careful scrutiny of the judicial process by which the particular punishment was determined.' United States v. Hartford, 5 Cir. 1974, 489 F.2d 652, 654.
The bank robber misanalogy drawn by the court together with the non-record, irrelevant, hearsay computer statistics upon which the court apparently relied may well have led the court to impute to Cavazos anywhere from 'six successful transactions' to having gotten by 'with ten, fifteen, twenty, (maybe) as many as 200 narcotic sales' which led the court to conclude that 'It's a bad, bad...
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