U.S. v. Soto
| Decision Date | 26 June 1986 |
| Docket Number | No. 84-1238,84-1238 |
| Citation | 793 F.2d 217 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Jimmy Ruben SOTO, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Ivan S. Abrams, Asst. U.S. Atty., Fresno, Cal., for plaintiff-appellee.
Stevan Noxon, Asst. Fed. Public Defender, Fresno, Cal., for defendant-appellant.
Appeal from the United States District Court for the Eastern District of California; Robert E. Coyle, Judge.
Before MERRILL, WALLACE, and POOLE, Circuit Judges.
The government has filed a petition for rehearing, and Soto has filed a response.
The opinion filed in this case on January 3, 1986, 779 F.2d 558, is amended by deleting the last two paragraphs and substituting the following:
We decline, however, to find the sentence imposed for Count IV improper. Furthermore, we need not remand for resentencing because the record presents no evidence that the district court was influenced to give a heavier sentence under Count IV, which was the more serious violation, because of the conviction under Count I. See United States v. Ray, 731 F.2d 1361, 1368 (9th Cir.1984).
Although there is no basis in the record to support a remand for resentencing, if Soto believes there was error, he has the option of filing a Fed.R.Crim.P. 35(b) motion for a reduction of sentence. Rule 35(b) permits the district judge to reduce a sentence sua sponte or on motion of the defendant for up to 120 days after the underlying conviction and sentence have been affirmed on appeal.
AFFIRMED.
With the amendment as set forth above, the petition for rehearing is denied.
I respectfully dissent from today's turnabout which sets aside the remand provided in our original opinion. See United States v. Soto, 779 F.2d 558, 564 (9th Cir.1986).
We affirmed the judgment of the district court on Count IV, involving possession of an unregistered sawed-off shotgun. We reversed the contemporaneous conviction of appellant on Count I which had charged him, a previously convicted felon, with possession of three pistols. We reversed that conviction because, despite the jury verdict, the evidence was plainly insufficient to show appellant's possession of any of the pistols. The legal maximum sentence for Count I is two years; for Count IV, ten years. 18 U.S.C. Sec. 3575(a) provides for increase of the conventional sentence maxima up to 25 years for a "dangerous special offender." In light of the appellant's prior criminal history and his two instant convictions of firearms offenses, the court found him to be a dangerous special offender within the contemplation of the statute. After some initial confusion, the district court imposed an enhanced sentence of 25 years as to Count IV and 12 years as to Count I, to be served consecutively for a total of 37 years.
Upon our review we found that no reasonable jury could have found beyond a reasonable doubt that appellant had possession of the pistols and we set that conviction aside. We said then that although "we decline to find the sentence imposed for Count IV improper, we nonetheless remand to the district court for reconsideration of Soto's sentence since his conviction on both counts may have affected the punishment set for Count IV." 779 F.2d at 564. Judge Wallace disagreed with the remand and dissented. He conjured up fears that thenceforth
any reversal of one count in a multiple count conviction will now automatically be considered to have met the majority's 'may have affected' test. No precedent requires such a result nor should it be adopted. It is counterproductive to the orderly administration of the criminal justice system.
779 F.2d at 565 (Wallace, Circuit Judge, dissenting).
The catastrophic fears harbored by the dissent were and are groundless. The sky will not fall nor prisons decay from desuetude because we have remanded a case such as this to give the trial judge an opportunity to review the proportionality of the survivor of two enhanced sentences where we have found that a companion sentence was supported by insufficient evidence. The remand in no way dictated what the court would do with Count IV and it retained the discretion to confirm or modify. The situation is altogether different from the ordinary multiple-count case because here the judge is exercising a special jurisdiction to add up to 25 years to the terms specifically prescribed by law.
Under the special dangerous offender statute, a court can impose drastic increases in sentences based upon its weighing of the significance of present conviction and a past history. But on appeal, our function as a reviewing court is markedly different than in the ordinary case. We have to determine whether the enhanced sentence is appropriate. It is our duty to make that review with solicitude for proportionality. Common sense tells that even the most just among us may be influenced by passion engendered from pre-formed opinions. Congress seems to have been aware that the power to decree enhanced sentences could result in "warehousing" persos convicted of crimes instead of the discrete, individualized appraisal of each case. To assure justice, Congress included special provisions delineating our functions on appeal. This kind of review is much more plenary than in the ordinary case. We may, if deemed desirable, vacate...
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