704 F.2d 29 (2nd Cir. 1983), 370, United States v. Sackinger

Docket Nº:370, Docket 82-1213.
Citation:704 F.2d 29
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Gregory SACKINGER, Defendant-Appellant.
Case Date:March 23, 1983
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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704 F.2d 29 (2nd Cir. 1983)

UNITED STATES of America, Plaintiff-Appellee,

v.

Gregory SACKINGER, Defendant-Appellant.

No. 370, Docket 82-1213.

United States Court of Appeals, Second Circuit

March 23, 1983

Argued Nov. 1, 1982.

Joseph M. Guerra III, Asst. U.S. Atty., Buffalo, N.Y. (Salvatore R. Martoche, U.S. Atty., W.D.N.Y., Buffalo, N.Y., of counsel), for plaintiff-appellee.

Terrence M. Connors, Buffalo, N.Y. (Damon, Morey, Sawyer & Moot, Lawrence J. Vilardo, Buffalo, N.Y., of counsel), for defendant-appellant.

Before FRIENDLY, KEARSE and PRATT, Circuit Judges.

GEORGE C. PRATT, Circuit Judge:

This case presents the issue of whether defendant's statutory or constitutional

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rights were violated by a policy of federal probation authorities to wait until state court sentencing proceedings are completed before instituting federal probation revocation proceedings based on the same act that gave rise to the state criminal charge. The facts, set forth in Judge Elfvin's careful opinion, United States v. Sackinger, 537 F.Supp. 1245 (W.D.N.Y.1982), need only be summarized here.

A mere five months after being placed on federal probation for interstate transportation of forged securities, the defendant, Gregory Sackinger, pled guilty to attempted burglary in the third degree in Cattaraugus County, New York. One of the terms of Sackinger's plea bargain, as expressed by the state court judge at the plea colloquy, was that Sackinger's state court sentence would, "if possible," be served concurrently with any sentence received in federal court. After negotiating this plea arrangement, the state court delayed sentencing Sackinger in order to permit the defendant to receive his sentence in the federal probation violation proceedings. The defendant's probation officer, who was not aware that the defendant's state plea arrangement contemplated that the sentence for attempted burglary was to run concurrently with his federal sentence for probation violation, followed office policy and did not institute the revocation proceedings until after the defendant had been sentenced on the state charges. Three and a half months after his guilty plea, Sackinger was sentenced by the state court; less than one month later, probation violation proceedings were commenced against him in federal court.

Pursuant to 18 U.S.C. Secs. 4082(a) and 3568, sentences imposed by a federal court are administered by the Attorney General and, while the court may recommend that a federal sentence be served in a state facility concurrently with a state sentence, the Attorney General has discretion as to whether or not he will follow the recommendation. United States v. Johnson, 563 F.2d 362, 364 (8th Cir.1977); Ange v. Paderick, 521 F.2d 1066, 1068 (4th Cir.1975); United States v. Huss, 520 F.2d 598, 602 (2d Cir.1975). As a result, when the probation officer deferred the revocation proceedings until after defendant was sentenced in state court, in effect he consigned the question of concurrent sentences to the successive discretions of the federal trial court and the Attorney General, and thereby deprived defendant of any guarantee that his state and federal sentences would be concurrent. Since Judge Elfvin felt that a separate additional federal sentence was called for, he did not...

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