Gonzalez v. United States

• Decision Date: 06 July 1955
• Docket Number: No. 4882.,4882.
• Citation: 224 F.2d 431
• Parties: Diego GONZALEZ, Defendant, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — First Circuit

224 F.2d 431 (1955)

Diego GONZALEZ, Defendant, Appellant, v. UNITED STATES of America, Appellee.

No. 4882.

United States Court of Appeals First Circuit.

Heard January 31, 1955.

Decided July 6, 1955.

Rehearing Denied August 8, 1955.

Diego Gonzalez, appellant, pro se.

Rubén Rodriguez Antongiorgi, U. S. Atty., San Juan, P. R. for appellee.

Before MAGRUDER, Chief Judge, and BIGGS^* and WOODBURY, Circuit Judges.

BIGGS, Circuit Judge.

This is an appeal from an order of the United States District Court for the District of Puerto Rico denying the defendant's motion under Rule 35, Fed. Rules Crim.Proc. 18 U.S.C.A., and 28 U.S.C. § 2255 to correct a sentence imposed on him by that court.

On February 12, 1952, Gonzalez, the defendant, pleaded guilty at No. 6649, Criminal, having withdrawn an earlier plea of not guilty, to an indictment charging violations of the narcotics laws. Section 371, Title 18 and Sections 2553(a), 2557(b) (1), Title 26. A journal entry of this date at No. 6649, Criminal, in the court below states: "The plea is accepted. Imposition of sentence is deferred." On July 24, 1952, according to another journal entry, Gonzalez was called for sentence. He moved orally for leave to withdraw his plea of guilty and enter a plea of not guilty, and the court took "the matter under submission until July 28, 1952." On July 29, 1952, according to another journal entry, Gonzalez asked permission to withdraw the oral motion last referred to and requested that his original plea of guilty stand. The court below granted Gonzalez' motion and he reiterated his plea of guilty. This plea was accepted by the court, which then entered an order which stated in part: "It is adjudged that the defendant has been convicted upon his plea of guilty of the offense of conspiring to purchase and sell unstamped narcotic drugs * * *. It is adjudged that the defendant is guilty as charged and convicted." Finding that no pre-sentence report was required and that there was no reason why sentence should not be immediately pronounced on the defendant, the court forthwith sentenced Gonzalez to terms of imprisonment of five years on the first and second counts, the sentences to run consecutively, but on completion of the sentence imposed on the first count the defendant to be placed on probation for the period of the second count.

At various times between May 23rd and June 25th, 1952, while the defendant was on bail at No. 6649, Criminal, he committed other crimes against the narcotic laws. On September 19, 1952, an information was filed against him which contained eight counts pertaining to these offenses, alleging violations of Sections 2550, 2553, 2557(b) (1), 2591(a), and 2596, Title 26. This information was at No. 7039, Criminal, in the United States District Court for the District of Puerto Rico. On the same day Gonzalez entered a plea of guilty to all the counts of the information referred to. On September 19, 1952, another information was filed against the defendant at No. 7039, Criminal, which recited in substance that he was a second offender against the narcotics laws of the United States. The court below then proceeded to sentence Gonzalez pursuant to the provisions of the Act of November 2, 1951, 65 Stat. 767, 21 U.S.C.A. § 174, as a second offender, imposing upon him a term of imprisonment of ten years on the first count of the information and to eight years on each of the other seven counts, all of the sentences to run concurrently with the sentence on the first count. The sentence imposed on the defendant in the second case, No. 7039, Criminal, was to run consecutively "to sentence" imposed on him at No. 6649, Criminal.

The substantial issue presented by the case at bar is whether the court below possessed the power to sentence the offender as a second offender under the Act of November 2, 1951, 21 U.S.C.A. § 174. The Act provides that he who violates the narcotics laws and is found guilty may be fined as specified and shall be imprisoned not less than two or more than five years for the first offense. For a second offense the offender may be fined a specified sum and shall be imprisoned not less than five or more than ten years. For a third or subsequent offense the offender may be fined as specified and shall be imprisoned not less than ten or more than twenty years. The statute provides that: "An offender shall be considered a second or subsequent offender, as the case may be, if he previously has been convicted of any specified narcotics offense". (Emphasis added.) We must determine, therefore, whether under the statute Gonzalez' prior conviction at No. 6649, Criminal, must have taken place previous to the time of the commissions of the subsequent offenses or only prior to the filing of the information in the second prosecution at No. 7039, Criminal. If the statute means that the commissions of the subsequent offenses must have taken place subsequent to conviction at No. 6649, Criminal, we must then determine whether a guilty plea constitutes a conviction under the statute or whether more is required.

In determining whether under the statute before us the prior conviction must occur before the commissions of the subsequent offenses we must consider the purpose to be achieved by the statute.

In reviewing statutes fixing the penalties for criminal conduct, the Supreme Court has recognized that a variety of purposes may be served by imposing criminal sanctions. In Commonwealth of Pennsylvania ex rel. Sullivan v. Ashe, 1937, 302 U.S. 51, 55, 58 S.Ct. 59, 82 L.Ed. 43, the Supreme Court said that a State "* * * may inflict a deserved penalty merely to vindicate the law or to deter or to reform the offender, or for all these purposes." If the purpose of subsequent offender statutes is to deter criminal conduct, we can see no reason why the increased penalties should not be applied to any subsequent offense whether or not there has been an intervening conviction and sentence since presumably a greater penalty would be required to deter a repetition of criminal activity by an offender who has not been convicted previously than to deter repetition by the offender who has been subjected to the corrective impact of conviction and sentence. If, on the other hand, subsequent offender statutes are intended to reform the offender and deprive him by reason of his incarceration of the opportunity for continued criminal conduct, then such statutes would seem to apply properly only to offenders convicted prior to the subsequent offense, for the repetition of criminal activity after conviction would show the inadequacy of a first-offender penalty to perform this function and the need of increased penalties. If the purpose be "to vindicate the law", as the Supreme Court put it, such statutes apparently would be applicable only to those convicted prior to the later offense because the social demand for increased penal sanctions would be directed primarily at the recidivist and not at an individual who had repeatedly committed offenses condemned by the statute but who had never been brought to the bar of justice.

In upholding the constitutionality of subsequent offender legislation, the Supreme Court has recognized the reformation and retribution theories of punishment as the primary reasons for imposing greater penalties on the repeater. In Moore v. State of Missouri, 1895, 159 U.S. 673, 677, 16 S.Ct. 179, 181, 40 L. Ed. 301, the Supreme Court said, quoting Mr. Chief Justice Shaw in Plumbly v. Commonwealth, 1841, 2 Metc., Mass., 413, 415, that the greater penalties are justified because "`the former punishment has been inefficacious in doing the work of reform, for which it was designed'" and because the subsequent offense is more reprehensible. See, e. g., McDonald v. Commonwealth of Massachusetts, 1901, 180 U.S. 311, 21 S.Ct. 389, 45 L.Ed. 542, and Graham v. State of West Virginia, 1912, 224 U.S. 616, 32 S.Ct. 583, 56 L.Ed. 917. But see Note, Court Treatment of General Recidivist Statutes, 48 Col.L.Rev. 238, 244 (1948). Consequently, if reformation and retribution are the primary purposes of the legislation, such ends would be served best by applying the statutes only to those offenders who have been convicted prior to the commission of the subsequent offense.

In construing subsequent offender statutes to determine whether they apply to any subsequent offender or only to an offender convicted and sentenced prior to his current offense, the decisions of the courts have varied depending upon the particular statute involved. In State v. McCormick, 1928, 104 N.J.L. 288, 290, 140 A. 297, 298, where it was held that under the New Jersey statute there did not have to be a prior conviction in order to invoke the increased penalties of the second offender statute, the court ruled the statute operative so long as the "conviction or plea of guilty for the first offense took place before the return of the indictment charging a similar offense as a second offense." Conversely, in State v. Christup, 1935, 337 Mo. 776, 85 S.W.2d 1024, where the defendant had escaped from imprisonment on his first offense and committed another offense, it was held that no second offense could occur under the Missouri statute until the defendant's sentence for the first offense had been completely served. Most subsequent offender statutes have been construed to operate between these two extremes so that any offense committed subsequent to a conviction calls for the increased penalty. See Annotation, 58 A.L.R. 20, 41, and 24 C.J.S. Criminal Law, § 1960, p. 1153.

In the United States courts uniformly this has been held to be the rule. In Singer v. United States, 1922, 278 F. 415, the Court of Appeals for the Third Circuit considered a substantially similar statute to that presently before us and held that a second offense within the meaning of the statute could occur only after a conviction for the first offense. See, e. g., United States v. Lindquist, D.C.W.D....