U.S. v. Leming

• Decision Date: 04 August 1975
• Docket Number: 74-2528,Nos. 74-2455,s. 74-2455
• Citation: 532 F.2d 647
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joyce Loraine LEMING, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Lash LA RUE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 647

532 F.2d 647

UNITED STATES of America, Plaintiff-Appellee, v. Joyce Loraine LEMING, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Lash LA RUE, Defendant-Appellant.

Nos. 74-2455, 74-2528.

United States Court of Appeals, Ninth Circuit.

Aug. 4, 1975.

Rehearing and Rehearing En Banc Denied Nov. 13, 1975.

Certiorari Denied March 22, 1976.

See 96 S.Ct. 1485.

Robert L. Boles (argued), San Diego, Cal., for defendant-appellant leming.

Lewis A. Wenzell (argued), San Diego, Cal., for defendant-appellant La Rue.

Rick Strauss, Asst. U. S. Atty. (argued), San Diego, Cal., for plaintiff-appellee.

OPINION

Before DUNIWAY and CARTER, Circuit Judges, and WEIGEL ^*, District Judge.

CARTER, Circuit Judge:

These appeals, presenting similar contentions, were consolidated for argument. A complaint charging a felony was first filed against each defendant; then, following plea bargaining, the government filed as to each defendant an information charging possession of a controlled substance, a misdemeanor under 21 U.S.C. § 844. Each defendant pled guilty and was sentenced on the information charging a misdemeanor; sentence was imposed under the Youth Corrections Act, 18 U.S.C. § 5010.

Each defendant was sent to a youth institution.

Leming contends (1) the sentence for a term exceeding one year constitutes infamous punishment and that an indictment was required; (2) sentence under the Youth Corrections Act deprived her of due process and equal protection under the law and constitutes cruel and unusual punishment.

La Rue raises (1) above and (2) that the sentence deprived him of equal protection under the law.

THE PROCEEDINGS BELOW

Leming

On February 7, 1973, a complaint was filed charging Leming with possession with intent to distribute approximately 4.3 grams of heroin, 23.5 grams of marijuana, and 89 amphetamine tablets, a felony in violation of 21 U.S.C. § 841(a)(1).

The parties stipulated that there was a plea bargain that the government would file a superseding information charging Leming with a violation of 21 U.S.C. § 844, possession of a controlled substance, a misdemeanor, and would dismiss the felony charge and recommend probation in exchange for a plea of guilty to the information.

On May 11, 1973, the information was filed under 21 U.S.C. § 844, charging possession of 89 amphetamine tablets.

On June 18, 1973, Leming, represented by counsel, offered a plea of guilty to the misdemeanor charge. The possible six-year length of a Youth Act sentence was fully explained by the court and the record clearly shows a voluntary, intelligent and informed plea. The court accepted and entered the guilty plea.

Through counsel, Leming asked the court for a probationary sentence under 18 U.S.C. § 5010(a). On July 30, 1973, she was placed on probation under 18 U.S.C. § 5010(a) for a period of three years. Among the conditions of the probation were provisions (1) that she obey all laws; (2) that she not use or possess narcotics, marijuana, LSD or dangerous drugs in any form, and (3) that she participate in a drug abuse program.

Before making the order final the court asked her if the proposed sentence was agreeable to her and she confirmed her desire to be so sentenced.

Less than a year later, on June 17, 1974, she was charged with violation of probation. Hearings were held on June 24 and 27, 1974, at which she admitted the charges of (1) use of narcotics, and (2) conviction and sentence for forgery. On June 27, 1974, probation was revoked and she was sentenced to the custody of the Attorney General under 18 U.S.C. § 5010(b). She appeals from this sentence.

Only after Leming, a year later, proved herself incapable of complying with the conditions of probation and revocation of probation proceedings were filed, did she raise for the first time a belated objection to her sentence.

La Rue

On May 29, 1973, a complaint was filed against La Rue charging illegal importation of five kilos of marijuana, one-quarter ounce of marijuana, and one-tenth gram of heroin, a felony, in violation of 21 U.S.C. §§ 952, 960 and 963. (We take judicial notice of the records of the district court.) Plea bargaining followed.

On June 22, 1973, as a result of the plea bargaining, an information was filed charging La Rue with possession of one-quarter ounce of marijuana, one-tenth gram of heroin, and five kilos of marijuana, a misdemeanor under 21 U.S.C. § 844. On that date the district judge struck from the information the reference to the five kilos of marijuana, not as part of plea bargaining, but because La Rue admitted the importation of the small amounts of contraband but denied knowledge of the five kilos. La Rue, represented by counsel, offered a guilty plea to the possession of the remainder of the contraband listed in the information.

La Rue was fully advised by the court of the possible six-year length of the Youth Act sentence and the record clearly shows a voluntary, intelligent and informed plea. The court accepted the guilty plea and after sentence dismissed the felony complaint.

As part of the plea bargain, the government agreed not to ask for more than a one-year sentence and would recommend against an indeterminate sentence under 18 U.S.C. § 5010(b). There was no agreement as to a recommendation of a probationary sentence under 18 U.S.C. § 5010(a). The agreement provided that the court was not "tied" to the recommendation and the court expressly informed La Rue that although both the government and La Rue's attorney had agreed to recommend against a § 5010(b) sentence, the court could still impose that sentence. Through his counsel, defendant asked for a probationary sentence under § 5010(a).

On August 3, 1973, La Rue was sentenced under the Youth Corrections Act, 18 U.S.C. § 5010(b), to the custody of the Attorney General for appropriate treatment and supervision.

La Rue then filed his first motion to correct his sentence under Rule 35, F.R.Crim.P. It was denied and he did not appeal. Thereafter, on May 15, 1974, he filed a second motion under Rule 35. After hearing, the motion was denied and he took this appeal.

La Rue was in state custody on a marijuana charge at the time of sentence, and was subject to a hold from Vallejo, California, involving conspiracy, burglary and theft of property. Proceedings were pending in Reno, Nevada, and in both the Army and the Marine Corps. The trial court explained to La Rue that the federal sentence must run consecutive to the state charges.

We do not reach the questions presented by defendants, since we hold that as to each of them there was an intelligent and knowing waiver of any right to an indictment as a part of plea bargaining, approved by the court, and a voluntary and understanding plea of guilty by each. Under these circumstances they may not attack the validity of the sentences under the Youth Corrections Act.

In Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), the Supreme Court stated that a plea of guilty "entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats . . . misrepresentation . . . (or improper promises)." Id. at 755, 90 S.Ct. at 1472 (emphasis added). Once such a guilty plea is entered following fair plea bargaining knowingly entered into and accepted, the defendant "may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea." Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 1608, 36 L.Ed.2d 235 (1973).

Here each defendant had been originally charged with a felony. Pursuant to plea bargaining, the information charging a misdemeanor was filed and the felony complaint dismissed. Each defendant, through counsel, asked for a probationary Youth Act sentence under 18 U.S.C. § 5010(a). Each was told that the court's hands were not tied in imposing a sentence under 18 U.S.C. § 5010(b).

Each defendant desired to avoid the felony charge. Each hoped to get probation under the Youth Act. (Leming in fact, originally received a probationary sentence.) Each received the major matter bargained for, the dismissal of the felony charges and a Youth Act sentence. Each defendant, represented by competent counsel, was carefully advised by the court of his or her rights and the possible term of imprisonment under the Youth Corrections Act. Neither defendant may now attack his or her sentence under the Youth Corrections Act. Young Hee Chow v. United States, 322 F.2d 64, 65-66 (9 Cir. 1963).

The trilogy of Brady v. United States, supra, McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970), and Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970), concerning the binding effect of a voluntary, informed plea of guilty when represented by competent counsel, by analogy, supports our decision. Tollett and Young Hee Choy directly support the decision.

The judgments are affirmed.

WEIGEL, District Judge (dissenting).

I respectfully dissent. The effect of the majority decision is to condone a prison sentence in excess of the maximum of one year specified by the relevant statute.

Appellants are confined under the provisions of the Youth Corrections Act, 18 U.S.C. § 5005 et seq., for a possible six year term. ¹ The maximum term had they been sentenced as adults is one year in prison. ² They show that Youth Corrections Act confinement is in no way different from ordinary prison; and they argue that their six year liability under § 5010(b) therefore deprives them of due process and equal protection.

I

The majority holds that appellants may not raise that issue because they made plea bargains and pleaded guilty. Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973), and Young Hee Choy v. United States, 322 F.2d 64 (9th Cir. 1963) are said to...