U.S. v. Felder, 82-1420

• Decision Date: 25 April 1983
• Docket Number: No. 82-1420,82-1420
• Citation: 706 F.2d 135
• Parties: UNITED STATES of America v. Terry FELDER, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 135

706 F.2d 135

UNITED STATES of America v. Terry FELDER, Appellant.

No. 82-1420.

United States Court of Appeals Third Circuit.

Argued March 9, 1983.

Decided April 25, 1983.

Mary C. Spearing (Argued), Asst. U.S. Atty., Peter F. Vaira, U.S. Atty., Walter S. Batty, Jr., Asst. U.S. Atty., Chief of Appeals, Philadelphia, Pa., for appellee.

Steven A. Morley (Argued), Robert J. O'Shea, Jr., Defender Ass'n of Philadelphia Federal Court Div., Philadelphia, Pa., for appellant.

Before SEITZ, Chief Judge, and HIGGINBOTHAM and SLOVITER, Circuit Judges.

OPINION OF THE COURT

SLOVITER, Circuit Judge.

Appellant Terry Felder challenges both the proceedings leading to his conviction and his sentence under the dangerous special offender statute, 18 U.S.C. Sec. 3575. We find no reversible error relating to Felder's conviction. ¹ With regard to Felder's claim that the sentence was disproportionate in severity to the maximum sentence otherwise provided for his felony, we vacate and remand for resentencing because the trial court gave no express consideration to the statutory requirement of proportionality.

I.

Terry Felder was convicted by a jury of one count of violating 18 U.S.C.App. Sec. 1202(a)(1), which proscribes possession of firearms by a convicted felon. The maximum sentence set forth for this offense is two years. Felder, however, was alleged by the government to be a dangerous special offender within the meaning of 18 U.S.C. Sec. 3575. A defendant is characterized as a special offender if s/he is a recidivist (essentially one who has committed two or more previous felonies, one of them within the last five years); a professional criminal (if the current felony arose from a pattern of conduct "which constituted a substantial source of his income, and in which he manifested special skill or expertise"); or an organized criminal (if the felony involved a criminal conspiracy in which the defendant played a supervisory role). 18 U.S.C. Sec. 3575(e); see Rummel v. Estelle, 445 U.S. 263, 299, 100 S.Ct. 1133, 1152, 63 L.Ed.2d 382 (1980) (Powell, J., dissenting). A special offender is further characterized as dangerous if "a period of confinement longer than that provided for [defendant's] felony is required for the protection of the public from further criminal conduct by the defendant." 18 U.S.C. Sec. 3575(f). Such persons may be sentenced "to imprisonment for an appropriate term not to exceed twenty-five years and not disproportionate in severity to the maximum term otherwise authorized by law for such felony." 18 U.S.C. Sec. 3575(b). ²

After a hearing, the trial court determined that Felder was a dangerous special offender, primarily because of his two prior felony convictions and various prior arrests. The court then sentenced Felder to twelve years imprisonment, which Felder here asserts violates 18 U.S.C. Sec. 3575 because it is "disproportionate in severity" to the two year maximum sentence for the underlying offense.

II.

Preliminarily, we address our standard of review of the district court's sentencing decision. In the usual criminal case, our review of sentences imposed by the district court is extremely circumscribed. If a sentence is within the statutory limitation and there is no defect in the sentencing procedure, we do not interfere with the trial court's discretion as to the sentence imposed. See United States v. Del Piano, 593 F.2d 539, 540 (3d Cir.) (per curiam), cert. denied, 442 U.S. 944, 99 S.Ct. 2889, 61 L.Ed.2d 315 (1979); see also United States v. Dickens, 695 F.2d 765, 782 n. 26 (3d Cir.1982) (sentences within the maximum allowed by statute are not generally reviewable on appeal).

Sentences imposed on a dangerous special offender under 18 U.S.C. Sec. 3575, however, are expressly made reviewable by this court under 18 U.S.C. Sec. 3576 which provides, in pertinent part:

With respect to the imposition ... of a sentence after proceedings under section 3575 ..., a review of the sentence on the record of the sentencing court may be taken by the defendant or the United States to a court of appeals.... Review of the sentence shall include review of whether the procedure employed was lawful, the findings made were clearly erroneous, or the sentencing court's discretion was abused. The court of appeals on review of the sentence may, after considering the record, including the entire presentence report, information submitted during the trial ... and the sentencing hearing, and the findings and reasons of the sentencing court, affirm the sentence, impose or direct the imposition of any sentence which the sentencing court could originally have imposed, or remand for further sentencing proceedings and imposition of sentence, except that a sentence may be made more severe only on review of the sentence taken by the United States and after hearing.

The importance of appellate review of the sentences imposed on dangerous special offenders was stressed in the legislative history. The Senate Report called appellate review of sentences "the most effective technique" for "reducing the incidence of disparate and unwise sentences." S.Rep. No. 617, 91st Cong., 1st Sess. 92 (1969) [hereinafter cited as S.Rep. No. 617]. Although a principal concern of the Committee was what was viewed as inadequate sentences for organized crime offenders, see id. at 85, it is clear that the appellate review provision was designed not only to correct "inadequate sentences", a function upheld in United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980), but also to provide a vehicle whereby the court of appeals could remedy "individual excessive sentences." S.Rep. No. 617 at 92. As the Senate Report states,

appellate review of sentences can contribute to rationality in sentencing by making sentencing decisions more public and promoting the evolution of sentencing principles, enhance respect for our system of justice, relieve pressure on appellate courts now lacking sentence review power to find grounds to reverse convictions on which unconscionable sentences were imposed, and aid rehabilitation of defendants by affording opportunities to object to sentences.

Id. at 92-93.

The range of our review is broad. The statute provides that the court of appeals may examine the entire record and hold a hearing, if necessary, and then affirm, resentence the defendant or remand for resentencing. Indeed, as the Supreme Court held in United States v. DiFrancesco, 449 U.S. at 141, 101 S.Ct. at 439, on appeal by the prosecutor, the appellate court may increase the sentence if it finds "the trial court has abused its discretion or employed unlawful procedures or made clearly erroneous findings." Cf. United States v. Stewart, 531 F.2d 326, 331 (6th Cir.), cert. denied, 426 U.S. 922, 96 S.Ct. 2629, 49 L.Ed.2d 376 (1976) ("the reviewing court['s] ... statutory power to vacate or modify is unrestricted.") In this case, Felder asks this court to vacate the sentence and impose "an appropriate sentence." Brief for Appellant at 25-27.

III.

Felder does not here contest the finding of the district court that he is a "dangerous special offender" under the statute. Instead he argues that the twelve year sentence imposed violates that part of 18 U.S.C. Sec. 3575 which provides "the court shall sentence the defendant to imprisonment for an appropriate term not to exceed twenty-five years and not disproportionate in severity to the maximum term otherwise authorized by law for such felony " (emphasis added). Felder asserts that a twelve year sentence is disproportionate to the two year maximum otherwise authorized for the predicate offense.

A.

The dangerous special offender provision originated as part of Title X of the Organized Crime Control Act of 1970, Pub.L. No. 91-452, Sec. 1001, 84 Stat. 922, 948-50. As originally reported by the Senate Judiciary Committee, the section simply provided that if a defendant was found to be a dangerous special offender, "the court shall sentence the defendant to imprisonment for a term not to exceed thirty years." S.Rep. No. 617 at 29. No proportionality requirement was included.

The language requiring proportionality was added at the recommendation of the American Bar Association (which also recommended that the maximum sentence be reduced from thirty to twenty-five years). See H.R.Rep. No. 1549, 91st Cong., 2d Sess. 61, 97, reprinted in 1970 U.S.Code Cong. & Ad.News 4007, 4037, 4066. The ABA had previously endorsed the principle that any special increased term for certain classes of felons (such as recidivists) should be proportional to the term for the underlying felony. See ABA Standards Relating to Sentencing Alternatives and Procedures Secs. 3.1(c), 3.3(a) (Approved Draft 1968). The proportionality requirement in section 3575 is modeled upon the proportionality requirement in sections 3-1 and 3-3 of those Standards. See United States v. Stewart, 531 F.2d at 330. An examination of the rationale behind the ABA's adoption of proportionality may illume the statutory language at issue.

Essentially the ABA wished to ensure that the sentence for an offense remained at least partially focused on that offense rather than on prior conduct or other factors.

It may well be that one who has committed [a comparatively minor felony] will pose such a public danger that a [severe] term ... is called for. But he would have posed just as much of a danger before he committed the offense as he does after. A sentence of this magnitude no longer bears any reasonable relationship to the event which triggered its possibility. The major thrust of the proceeding has shifted from the offense to the status of the offender. A proceeding which can result in such a long sentence ought to assume the burden of depending initially and primarily on the criteria which justify it, rather than employ[ing] the vehicle of a relatively minor felony to approach the same end indirectly. Such an indirect approach gives rise...