656 F.2d 1162 (5th Cir. 1981), 80-3671, United States v. Long

Docket Nº:80-3671.
Citation:656 F.2d 1162
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. James Ralph LONG, Defendant-Appellant.
Case Date:September 25, 1981
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 1162

656 F.2d 1162 (5th Cir. 1981)

UNITED STATES of America, Plaintiff-Appellee,

v.

James Ralph LONG, Defendant-Appellant.

No. 80-3671.

Unit A

United States Court of Appeals, Fifth Circuit

September 25, 1981

Page 1163

Joe D. Pegram, Oxford, Miss., for defendant-appellant.

George L. Phillips, U. S. Atty., Daniel E. Lynn, Asst. U. S. Atty., Jackson, Miss., for plaintiff-appellant.

Appeal from the United States District Court for the Southern District of Mississippi.

Before RUBIN, RANDALL and TATE, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

The defendant was convicted of a crime for which life imprisonment was mandatory. The term of a sentence, however, is not the only decision to be made in sentencing a person convicted of crime. Because the trial judge sentenced the defendant to a term of life imprisonment without, as Fed.R.Crim.P. 32 requires, either obtaining a presentence report or finding that there was sufficient information in the record to enable the meaningful exercise of sentencing discretion, we vacate the sentence and remand for resentencing.

After a three-day trial, a jury found James Long guilty of first degree murder committed on the Keesler Air Force Base, in violation of 18 U.S.C. § 1111, but without capital punishment. Upon receiving the verdict, the district judge adjudged the defendant to be guilty and said: "I will defer sentence to await receipt of a pre-sentence report ...." After a colloquy about bond, the judge asked when he might expect a presentence report; the probation officer requested three weeks. The Assistant United States Attorney then advised the court that life imprisonment was mandatory and that, therefore, no presentence investigation was "necessary." The district judge then called upon Long for a statement before sentence was imposed, and, after giving Long an opportunity for allocution, sentenced him to life imprisonment. Long's conviction was affirmed by us, 608 F.2d 1372 (5th Cir. 1979) (mem.), and a writ of certiorari was denied by the Supreme Court, 445 U.S. 930, 100 S.Ct. 1319, 63 L.Ed.2d 763 (1980).

Long then filed a motion for correction of sentence pursuant to Fed.R.Crim.P. 35 because he had been sentenced by the judge acting without the presentence report required by Fed.R.Crim.P. 32(c), and sought a reduction of his sentence.

The life sentence that is mandatory for first degree murder may be coupled with a recommendation that the defendant shall be eligible for parole after serving some lesser term. 1 United States v. Busic, 592 F.2d 13, 25, 26-27 (2d Cir. 1978). Whether or not such a recommendation for possible future clemency should be made was critical to the defendant, for it might be decisive in requiring him to be actually confined for a minimum period of ten years

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or in determining whether he would be eligible for earlier parole. In addition, the sentencing judge may recommend the type of institution to which the defendant shall be confined and the location where he shall serve his sentence. See, e. g., Fed.R.Crim.P. app., form 25; Greathouse v. United States, 548 F.2d 225, 227 (8th Cir.), cert. denied, 434 U.S. 838, 98 S.Ct. 130, 54 L.Ed.2d 100 (1977). Although not a part of the sentence, the decision of prison authorities 2 on these matters is obviously of great importance to the person confined for they determine the ability of his family and friends to visit him and the physical environment in which he will serve his sentence.

The information provided by the report of a trained probation officer, together with the evidence presented at the trial itself, give the sentencing judge the only reliable bases for exercise of his sentencing discretion. The sentencing decision, repeatedly referred to by trial judges as the most difficult they face, 3 certainly cannot be based on the visage of the defendant, and should not be founded only on his apparent contrition or lack of remorse or on his lawyer's eloquence at allocution. Therefore, if the judge imposes sentence without complying with rule 32, the sentence must be vacated; the probation service must make a presentence investigation and report to the judge; upon request, the defendant may be allowed to inspect it, 4 and then the judge must, after a new allocution, 5 impose a new sentence. United States v. Dinapoli, 519 F.2d 104, 107-08 (6th Cir. 1975); see United States v. Chiantese, 582 F.2d 974, 981 & n.17 (5th Cir. 1978), cert. denied, 441 U.S. 922, 99 S.Ct. 2030, 60 L.Ed.2d 395 (1979).

A presentence report is not required if the court finds "that there is in the record information sufficient to enable the meaningful exercise of the sentencing discretion, and the court explains this finding on the record." Fed.R.Crim.P. 32(c)(1). The rule patently contemplates that this determination shall be made before sentence is imposed. See United States v. Chiantese, 582 F.2d at 981 & n.17. In this case the court made no such finding; however, when the deficiency was pointed out by the defendant in his motion for correction and change of sentence, the Assistant United States Attorney suggested a remedy to the judge:

Thank you, Your Honor. For the record, if I understood the Court, the Court is finding that there is in the record information sufficient to enable you to make the meaningful exercise of sentencing discretion that you did, and you've explained that and it's now on the record, is that correct?

The judge responded:

Well, I haven't seen the record since we tried that case, but you've refreshed my memory and I remember we tried that case a couple of days.

This response later was supplemented by a judgment stating:

The Court finds that no useful purpose would be served by preparing a presentence report to be used as an aid to the Court in imposing sentence. This Court conducted the murder trial of this defendant, heard the evidence presented and observed defendant during the course of the trial. The Court at the time of sentencing and now has sufficient information available to meaningfully impose a proper sentence; that based upon that information, regardless of what may be produced by a presentence report, the Court would not designate an early parole eligibility as provided by 18 U.S.C. 4205(b) in this particular case.

Although the defendant had...

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