Mawson v. United States, 72-1116.
| Decision Date | 15 June 1972 |
| Docket Number | No. 72-1116.,72-1116. |
| Citation | 463 F.2d 29 |
| Parties | Andrew MAWSON, Petitioner, v. UNITED STATES of America, Respondent. |
| Court | U.S. Court of Appeals — First Circuit |
Joseph L. Tauro, U.S. Atty., and James B. Krasnoo, Asst. U.S. Atty., on memorandum on resentencing for appellee.
Maurice F. Ford, Dorchester, Mass., on memorandum in reply for appellant.
Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.
In this case petitioner sought, through substitutions and amendments, various forms of relief following a three-year sentence imposed upon a plea of guilty. A hearing was had before a magistrate, who filed a comprehensive report, which was confirmed by the district court. The court held that he was entitled to no relief. It is clear, however, upon the facts found by the magistrate, corroborated by supplementary facts asserted by both sides in connection with the appeal, which we accept to the extent that they are in agreement,1 that petitioner is entitled to relief.
The sentencing in this case took place before our decision in United States v. Bednarski, 1 Cir., 1971, 445 F.2d 364, and the circumstances are somewhat less favorable to petitioner than those hypothesized in that case. Nonetheless, they are not sufficiently different to justify the district court's present disregard of what we said therein. The facts in the present case are that petitioner agreed to plead if the government dismissed an indictment and substituted an information, and that in consideration of petitioner's "cooperation" with regard to the government's claims against other defendants the government2 would take that fact into consideration in connection with its recommendation as to sentence. The government did not at that time state, or even intimate, any specifics as to what that recommendation would be. The United States Attorney did, however, thereafter, following the plea, come to a conclusion with respect to his recommendation. The court, however, did not permit the recommendation to be expressed.
The court should have, and presumably would have, asked for the government's recommendation had it known that the government had promised to make one. Santobello v. New York, 1971, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427. The court was deprived of this knowledge by the government's silence at the time the defendant disavowed having been offered any inducement for his guilty plea. This was before we pointed out in Bedna...
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Wilson v. U.S.
...and Fifth Circuits ordinarily follow the practice of remanding the case for resentencing by a different judge. (First Circuit, Mawson v. United States (1972) 463 F.2d 29, 31; United States v. Picard, supra, 464 F.2d at 220; United States v. Bishop (1972) 469 F.2d 1337, 1348; Halliday v. Uni......
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United States v. Rosner
...a defendant, and both for the judge's sake, and the appearance of justice, we remand this case to be redrawn." See Mawson v. United States, 463 F.2d 29 (1 Cir. 1972). In resentencing, the judge redrawn will either not consider the prosecutor's report, or if he deems it desirable to read it,......
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Farrow v. U.S.
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