Smith v. U.S., 73-3623
| Decision Date | 30 December 1974 |
| Docket Number | No. 73-3623,73-3623 |
| Citation | 505 F.2d 893 |
| Parties | John Culberson SMITH, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
LeRoy A. Hartley, New Orleans, La. (Court-appointed), for petitioner-appellant.
Donald E. Walter, U.S. Atty., Dosite H. Perkins, Jr., Joseph S. Cage, Jr., Asst. U.S. Attys., Shreveport, La., for respondent-appellee.
Before WISDOM and BELL, Circuit Judges, and BREWSTER, District Judge. violations of 18 U.S.C. 641 and 500,
This appeal challenges a sentence imposed in the probation revocation context. John Culberson Smith originally pleaded guilty on four separate indictments charging him with various offenses arising out of the burglary of a United States Post Office. 1 Although the four indictments originated in different districts, three of them were transferred to the district having jurisdiction over the fourth indictment, in accordance with Fed.R.Crim.P. 20. The court sentenced Smith on July 18, 1960.
On the first indictment, which charged violations of 18 U.S.C. 1707 and 2115 in two counts, the court sentenced Smith to a total of eight years imprisonment. The second indictment charged violations of 18 U.S.C. 371 and 500 in eight counts. Smith was sentenced on the first count to a two-year term of imprisonment, consecutive to the eight-year term to be served on the first indictment. The court deferred imposition of custodial sentence on the remaining counts of the second indictment and placed Smith on supervised probation for a term of five years, beginning at the end of the two years custodial term levied on the first count of the second indictment. On the third and fourth indictments, which charged violations of 1, U.S.C. 641 and 500, respectively, the court deferred imposition of custodial sentence and placed Smith on supervised probation for two five-year terms, concurrent with each other and with the term levied on the second indictment.
Smith completed his custodial sentences and commenced service of his probationary term on April 20, 1971. Smith violated his probation, and a rule to revoke was filed on September 3, 1971. He was apprehended on December 15, 1972.
The court reconsidered sentencing on those indictments in which imposition of custodial sentence had been suspended. On the two counts of the fourth indictment, the court ordered that Smith be imprisoned for two consecutive five-year terms. On the third indictment and on the remaining counts of the second indictment, the court reinstated Smith on supervised probation, beginning at the end of the custodial term levied on the fourth indictment.
When the district court revokes probation, it may require the probationer 'to serve the sentence imposed, or any lesser sentence, and, if imposition of sentence was suspended, (the court) may mpose any sentence which might originally have been imposed'. 18 U.S.C. 3653. In Smith's case, imposition of sentence was suspended. Therefore, the court could impose any sentence that would have been proper if imposed at the time of the initial sentencing.
Smith does not challenge his new custodial sentence; his only quarrel is with the district court's reinstatement of his probation. Smith does not believe that a term of probation is a 'sentence' within the meaning of section 3653. In his view, further probation is not a sentencing alternative that the district court may properly consider. We disagree.
In determining whether probation a properly defined as a 'sentence', we avoid needless terminological distinctions of artificial origin; we focus on the reality of the probationary status. Probation is a sentence like any other sentence. The A.B.A. Standards state the proper considerations:
A.B.A. Standards Relating To Probation, p. 25 (Approved Draft, 1970)....
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