U.S. v. Wheaton
Decision Date | 30 June 1977 |
Docket Number | No. 77-1079,77-1079 |
Parties | UNITED STATES of America, Appellee, v. Frederick R. WHEATON, Defendant-Appellant. |
Court | U.S. Court of Appeals — First Circuit |
James W. Lawson, Boston, Mass., with whom Oteri & Weinberg, Boston, Mass., was on brief, for appellant.
James E. O'Neil, Asst. U. S. Atty., Boston, Mass., with whom James N. Gabriel, U. S. Atty., Boston, Mass., was on brief, for appellee.
Before COFFIN, Chief Judge, CAMPBELL, Circuit Judge, and DOOLING, District Judge. *
Defendant appellant entered a plea of guilty to an indictment that charged him in three counts with possessing cocaine with intent to distribute it, with distributing cocaine, and with conspiracy to commit those two offenses, in violation of 21 U.S.C. §§ 841(a)(1), 846. He was sentenced on January 6, 1977, to two years in prison and to a special parole term of three years. The appeal challenges the severity of the sentence on the ground that the sentencing judge based it on misinformation concerning the crime, and that the sentencing judge denied the defendant an opportunity to correct through an evidentiary hearing the supposed misinformation about the crime. The gist of the defendant's claim is that the sentencing was based on the sentencing judge's misunderstanding of the physical, psychic and societal consequences of cocaine use, and that the sentencing judge erred in denying an evidentiary hearing at which defendant could adduce evidence that cocaine was not addictive, criminogenic or frequently used with heroin. The appeal thus raises anew questions that were fully considered in United States v. Foss, 1st Cir. 1974, 501 F.2d 522.
Defendant's counsel submitted a Memorandum in Mitigation of Sentence on the day before sentence which emphasized defendant's background, employment record and family situation and commented on defendant's limited share in the crime. The Memorandum drew attention to a recent Massachusetts state court case expressing the opinion that the state law making the possession of cocaine criminal was unconstitutional and finding that cocaine was essentially harmless. The Memorandum was accompanied by copies of the state court opinion and the full hearing record in the state court, including the expert testimony about the properties of cocaine.
The Court stated that the two defendants were equally culpable, not youths, but mature men, and that the transactions involved a sale of cocaine for the not inconsiderable amount of $1,600. Then the Court said:
After the sentence was imposed defendant filed his notice of appeal, a motion to stay execution of sentence and continue release on bail, a motion to reduce sentence and a motion for an evidentiary hearing at which defendant proposed to adduce evidence that cocaine was not...
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