U.S. v. Del Piano, 78-1922

• Decision Date: 07 March 1979
• Docket Number: No. 78-1922,78-1922
• Citation: 593 F.2d 539
• Parties: UNITED STATES of America, Appellee, v. Frank Richard DEL PIANO, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 539

593 F.2d 539

UNITED STATES of America, Appellee, v. Frank Richard DEL PIANO, Appellant.

No. 78-1922.

United States Court of Appeals, Third Circuit.

Submitted Jan. 18, 1979.

Decided March 7, 1979.

Peter F. Vaira, U.S. Atty., Walter S. Batty, Jr., Asst. U.S. Atty., Chief, Appellate Section, James D. Coleman, Asst. U.S. Atty., Philadelphia, Pa., for appellee.

Fern H. Schwaber, Philadelphia, Pa., for appellant.

Before ADAMS and WEIS, Circuit Judges, and KUNZIG, Judge. ^*

OPINION OF THE COURT

PER CURIAM.

This case has previously been before the court in Del Piano v. United States, 575 F.2d 1066 (3rd Cir. 1978), wherein we remanded defendant's case for a De novo sentencing hearing to the district judge who had previously denied, without a hearing, Del Piano's Motion to Vacate Sentence pursuant to 28 U.S.C. § 2255. The questions now presented us for decision are (1) whether the district court erred in failing to transfer the case to another judge upon remand, and (2) whether the failure of the district judge to state his reasons for his sentence constituted error as a matter of law.

Because we find the procedures employed by the district judge upon remand to be appropriate, we affirm.

The first contention urged by defendant is that the district judge upon remand erred in failing to transfer the case for re-sentencing. The argument is without merit. This court has, in the past, sanctioned re-sentencing by the district judge who originally entertained a defendant's § 2255 motion. United States ex rel. Fletcher v. Walters, 526 F.2d 359 (3rd Cir. 1975); United States v. Radowitz, 507 F.2d 109 (3rd Cir. 1974). In light of the district judge's careful and thorough handling of the sentencing hearing on remand, we are not persuaded to deviate from our prior approval of such a practice.

Appellant further argues that the district judge's sentence is defective as a matter of law since no reasons were articulated to support the imposition of the sentence. While we are mindful of the substantial benefit that a statement of reasons for a sentence may have, See, e. g., United States v. Bazzano, 570 F.2d 1120, 1130 (3rd Cir. 1977) (Adams, J., concurring), it is clear there is no affirmative requirement, in this circuit, that every district judge give an explanation for each sentence imposed. United States v. Lee, 532 F.2d 911, 916 (3rd Cir. 1976); Government of Virgin Islands v. Richardson, 498 F.2d 892, 894 (3rd Cir. 1974). Thus, since the sentence imposed was within the statutory limitation and there is no defect in the sentencing procedure, this court will not interfere with the trial judge's discretion as to the sentence imposed. United States v. Lee, supra at 916; Government of Virgin Islands v. Richardson, supra at 894.

Accordingly, after consideration of all submissions of the parties, the sentence of the district court is affirmed.

ADAMS, Circuit Judge, concurring.

I concur in the judgment of the Court because the law as it now stands does not as a general matter require the sentencing judge to transfer a case to a different judge when it is remanded to him for resentencing, nor require the judge to give an explanation for the sentence imposed. But, as Justice Cardozo put it, "(W)hat really matters is this, that the judge is under a duty, within the limits of his power of innovation, to maintain a relation between law and morals, between the precepts of jurisprudence and those of reason and good conscience." ¹ Accordingly, I write separately to urge my colleagues, once again, to adopt a rule, pursuant to our supervisory power, that would require trial judges to explain the reasons for the sentence being imposed, at least when the circumstances are such that one might justifiably expect the defendant to receive a substantially lighter or substantially heavier sentence. For important as it is that people should get justice, it is equally important that they should feel and see that they are receiving it. ²

The prevailing state of affairs, under which trial judges exercise almost unchecked power in fashioning sentences, is an anomaly in our safeguard-steeped system of administering the criminal law. Although this system affords the defendant a panoply of procedural and evidentiary protections at trial as well as an opportunity to seek meaningful review of the legal issues upon which a finding of guilt was based, it leaves an issue of prime concern to the defendant his fate over the next few years to the discretion of a single judge. As a general rule, "a federal appellate tribunal will not review a judgment of sentence that is within the statutory maximum unless there be a showing of illegality or abuse of discretion." ³ The injustices that may result from such a situation have been explored elsewhere, and several proposals, varying in scope from the modest to the far-reaching, have been put forward. ⁴

Among the suggestions that have received widespread support is that trial judges be required to advance reasons for the sentences they impose. In United States v. Bazzano, 570 F.2d 1120, 1130-38 (3d Cir. 1977) (Adams, J., concurring), I canvassed the arguments mustered in favor of and in opposition to this procedural requirement, and concluded that:

such a rule would help to assure that sentences are grounded on the facts of a particular case, and would serve the broader aims of promoting the defendant's rehabilitation as well as the fairness and rationality of sentencing procedures. It would also eliminate the undue delay that frequently results when the sentencing process is questioned in an appellate court, and the trial judge has not given his reasons for the sentence. These gains would obtain without overly burdening trial judges, and without invading the realm of their discretion to set sentences on the basis of their knowledge of the defendant and the circumstances surrounding the crime. ⁵

The present case further highlights the importance of a statement of reasons, as a brief recital of the pertinent facts demonstrates.

Frank Del Piano, after pleading guilty to charges of bank robbery and conspiracy was sentenced by Judge Wood, on January 27, 1964, to a total of twenty-five years imprisonment. When he had completed serving twelve years, Del Piano petitioned the district court pursuant to 28 U.S.C. § 2255 to have his sentence vacated on the ground that Judge Wood had considered six juvenile adjudications of delinquency at which Del Piano was not represented by counsel, thereby warranting resentencing under the rule of United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972). Since Judge Wood was by then deceased, Del Piano's petition to vacate the sentence was referred to another judge. Although adopting a magistrate's proposed findings of fact to the effect that the original sentencing procedure was constitutionally infirm, the district court initially declined to conduct a De novo sentencing proceeding, ruling that "a resentencing of petitioner is unnecessary since, after consideration and review of the entire record without regard to the juvenile adjudications, the Court finds that the original sentence would still be appropriate." ⁶ This Court reversed, and in an opinion by Judge Aldisert ordered that the sentence be vacated and that Del Piano be resentenced following a...