U.S. v. Clements

• Decision Date: 12 January 1981
• Docket Number: No. 80-5298,80-5298
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John William CLEMENTS, Defendant-Appellant. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 183

634 F.2d 183

UNITED STATES of America, Plaintiff-Appellee, v. John William CLEMENTS, Defendant-Appellant.

No. 80-5298

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Jan. 12, 1981.

John William Clements, pro se.

Thomas R. Santurri, Asst. U.S. Atty., Pensacola, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Florida.

Before GODBOLD, REAVLEY and ANDERSON, Circuit Judges.

R. LANIER ANDERSON, III, Circuit Judge:

In 1972, appellant was convicted of one count of conspiracy to import heroin, 21 U.S.C.A. § 952(a) and of one count of aiding and abetting in the importation of heroin, 21 U.S.C.A. § 952(a) and 18 U.S.C.A. § 2, and was sentenced to fifteen years on each count to be served consecutively. ¹ His conviction was affirmed by this court in 1973. See United States v. Clements, 484 F.2d 928 (5th Cir. 1973), cert. denied, 415 U.S. 991, 94 S.Ct. 1591, 39 L.Ed.2d 888 (1974). In this proceeding, brought pursuant to 28 U.S.C.A. § 2255, he challenges the legality of his sentence on the ground that (1) he was sentenced more harshly for going to trial than a co-defendant who pleaded guilty; (2) he was not given an opportunity to examine the pre-sentence investigation report which allegedly contained false and misleading information upon which the sentencing judge relied; and (3) he was sentenced pursuant to a predetermined policy of the sentencing judge to give maximum sentences for drug offenses. ² His section 2255 motion was denied by the district court without an evidentiary hearing. We affirm with respect to the first two grounds, but reverse and remand to the district court for a hearing on the third ground.

Ordinarily the district court should conduct an evidentiary hearing on petitioner's allegations, "(u)nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C.A. § 2255; United States v. Guerra, 588 F.2d 519 (5th Cir. 1979). With this standard in mind, we proceed to review the appellant's allegations.

First, appellant complains that he was sentenced harshly because he chose to exercise his right to a jury trial while a co-defendant who pleaded guilty received a lesser sentence. There is absolutely nothing in the record to support this allegation. The co-defendant, Trupkin, pleaded guilty to one count of aiding and abetting in exchange for the government dismissing the other charges. He too received a maximum sentence on the aiding and abetting count but the disparity in sentences is attributable to the fact the appellant was sentenced on two counts and Trupkin was sentenced on only one count.

Second, appellant complains that he was not afforded an opportunity to review the pre-sentence investigation report prior to sentencing. Although the 1975 amendments to Fed.R.Crim.P. 32(c)(1) requires the sentencing judge to allow the defendant or his attorney an opportunity to review the report before sentencing, appellant was convicted and sentenced before the effective date of the amendments. We have held that the 1975 amendments to the Fed.R.Crim.P. 11 are not to be applied retroactively. See Goodwin v. United States, 544 F.2d 826 (5th Cir. 1977); Summers v. United States, 538 F.2d 1208 (5th Cir. 1976). Since the amendments to Rule 32 were contained in the same legislation as the amendments to Rule 11, we perceive no reason to apply a different rule with respect to the amendments to Rule 32. At the time of appellant's conviction and sentencing, the prevailing rule was that the decision whether to disclose the report to the defendant or counsel was a matter entirely within the discretion of the sentencing judge, unless he explicitly relied on information in the report in assessing a sentence. See United States v. Espinoza, 481 F.2d 553 (5th Cir. 1973); United States v. Battaglia, 478 F.2d 854 (5th Cir. 1972). The appellant has the initial burden of demonstrating that the court relied upon misinformation. See United States v. Horsley, 519 F.2d 1264 (5th Cir. 1975), cert. denied, 424 U.S. 944, 96 S.Ct. 1413, 47 L.Ed.2d 350 (1976). We find no evidence that the sentencing judge abused his discretion in not disclosing the report to the appellant. ³ The transcript of the sentencing does not contain any explicit statement by the judge that he relied on any information in the report in assessing the sentence. Although the appellant alleges that the sentencing judge stated that appellant had an obvious propensity for drug trafficking, the alleged statement does not appear in the record or transcript. Since the record reveals no explicit reliance by the judge on the presentence report, we must conclude that the appellant failed to sustain his burden of showing reliance on misinformation. See United States v. Horsley, supra. The district court did not err in denying this ground for relief without an evidentiary hearing.

We turn now to appellant's challenge that he was sentenced pursuant to a predetermined policy of the sentencing judge to give maximum sentences for drug offenses. Ordinarily, this court will not review the severity of a sentence imposed within the statutory limits, but will carefully scrutinize the judicial process by which the punishment was imposed. See Herron v. United States, 551 F.2d 62 (5th Cir. 1977); United States v. Cavazos, 530 F.2d 4 (5th Cir. 1976). An allegation that the sentencing judge automatically imposes the maximum sentence for certain categories of offenses presents one instance where this court will review the mechanics of the sentencing process. See United States v. Hartford, 489 F.2d 652 (5th Cir. 1974).

The facts on which appellant bases his claim of a predetermined sentencing policy are as follows. Appellant himself received the maximum sentence, without any apparent consideration either of the fact that appellant was a first offender or of the fact that his role in the conspiracy was relatively minor. He also alleges that on the day he was sentenced the sentencing judge also imposed the maximum sentence for drug offenses upon at least four other defendants whose names he could remember. (R. 8) In addition, he points to our decision in United States v. Hartford, supra, where this court reviewed the maximum sentence imposed by this same district judge upon three additional convicted drug offenders, Hartford, Bowdoin and Newton. The defendants in Hartford were apparently sentenced on the same day as the appellant here. In sentencing one of the defendants in Hartford, the judge made remarks which this court found were evidence of a "rigid policy of imposing the maximum sentence" for narcotics violations. 489 F.2d at 655.

In Hartford, we vacated Hartford's sentence on the ground that the district judge had employed the Federal Youth Corrections Act (18 U.S.C.A. §§ 5005-5026) to impose a greater sentence than prescribed by the statute defining the offense. We found this practice to be contrary to the remedial purpose of the Youth Corrections Act. We vacated the sentence of the second defendant, Bowdoin, because the record revealed an abuse of judicial discretion because the judge pursued a rigid policy of imposing the maximum sentence for narcotics violations. The record was replete with statements by the trial judge that he would give Bowdoin the maximum sentence no matter what the mitigating circumstances. In contrast, the panel in Hartford did not disturb the maximum sentence imposed upon the third defendant, Newton, because the transcript of his sentencing hearing did not indicate any predisposition of the judge concerning the appropriate sentence, and because it affirmatively appeared from the record that the judge had examined Newton's presentence report, had considered a letter from Newton's minister and had permitted extensive testimony from the minister and Newton's father. These factors tended to dispel the possibility of a mechanical approach to sentencing.

The court below relied upon our decision in Hartford with respect to Newton in holding that there was insufficient evidence that the sentencing judge pursued a predetermined policy for sentencing drug offenders. The district judge read Hartford to require that there must be evidence of a predetermined policy in the sentencing transcript itself. We reject the district court's narrow reading of Hartford.

We acknowledge that the transcript of appellant's sentencing does not contain any indication of predisposition. ⁴ However, we do not believe that Hartford precludes the appellant from going beyond the four corners of the sentencing transcript to prove predisposition. In the case of Newton in the Hartford decision, not only did the transcript fail to disclose any statements by the judge...