U.S. v. Long

• Decision Date: 25 September 1981
• Docket Number: No. 80-3671,80-3671
• Citation: 656 F.2d 1162
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James Ralph LONG, Defendant-Appellant. . Unit A
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1162

656 F.2d 1162

UNITED STATES of America, Plaintiff-Appellee, v. James Ralph LONG, Defendant-Appellant.

No. 80-3671.

United States Court of Appeals, Fifth Circuit.

Unit A

Sept. 25, 1981.

Joe D. Pegram, Oxford, Miss., for defendant-appellant.

George L. Phillips, U. S. Atty., Daniel E. Lynn, Asst. U. S. Atty., Jackson, Miss., for plaintiff-appellant.

Appeal from the United States District Court for the Southern District of Mississippi.

Before RUBIN, RANDALL and TATE, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

The defendant was convicted of a crime for which life imprisonment was mandatory. The term of a sentence, however, is not the only decision to be made in sentencing a person convicted of crime. Because the trial judge sentenced the defendant to a term of life imprisonment without, as Fed.R.Crim.P. 32 requires, either obtaining a presentence report or finding that there was sufficient information in the record to enable the meaningful exercise of sentencing discretion, we vacate the sentence and remand for resentencing.

After a three-day trial, a jury found James Long guilty of first degree murder committed on the Keesler Air Force Base, in violation of 18 U.S.C. § 1111, but without capital punishment. Upon receiving the verdict, the district judge adjudged the defendant to be guilty and said: "I will defer sentence to await receipt of a pre-sentence report ...." After a colloquy about bond, the judge asked when he might expect a presentence report; the probation officer requested three weeks. The Assistant United States Attorney then advised the court that life imprisonment was mandatory and that, therefore, no presentence investigation was "necessary." The district judge then called upon Long for a statement before sentence was imposed, and, after giving Long an opportunity for allocution, sentenced him to life imprisonment. Long's conviction was affirmed by us, 608 F.2d 1372 (5th Cir. 1979) (mem.), and a writ of certiorari was denied by the Supreme Court, 445 U.S. 930, 100 S.Ct. 1319, 63 L.Ed.2d 763 (1980).

Long then filed a motion for correction of sentence pursuant to Fed.R.Crim.P. 35 because he had been sentenced by the judge acting without the presentence report required by Fed.R.Crim.P. 32(c), and sought a reduction of his sentence.

The life sentence that is mandatory for first degree murder may be coupled with a recommendation that the defendant shall be eligible for parole after serving some lesser term. ¹ United States v. Busic, 592 F.2d 13, 25, 26-27 (2d Cir. 1978). Whether or not such a recommendation for possible future clemency should be made was critical to the defendant, for it might be decisive in requiring him to be actually confined for a minimum period of ten years The information provided by the report of a trained probation officer, together with the evidence presented at the trial itself, give the sentencing judge the only reliable bases for exercise of his sentencing discretion. The sentencing decision, repeatedly referred to by trial judges as the most difficult they face, ³ certainly cannot be based on the visage of the defendant, and should not be founded only on his apparent contrition or lack of remorse or on his lawyer's eloquence at allocution. Therefore, if the judge imposes sentence without complying with rule 32, the sentence must be vacated; the probation service must make a presentence investigation and report to the judge; upon request, the defendant may be allowed to inspect it, ⁴ and then the judge must, after a new allocution, ⁵ impose a new sentence. United States v. Dinapoli, 519 F.2d 104, 107-08 (6th Cir. 1975); see United States v. Chiantese, 582 F.2d 974, 981 & n.17 (5th Cir. 1978), cert. denied, 441 U.S. 922, 99 S.Ct. 2030, 60 L.Ed.2d 395 (1979).

or in determining whether he would be eligible for earlier parole. In addition, the sentencing judge may recommend the type of institution to which the defendant shall be confined and the location where he shall serve his sentence. See, e. g., Fed.R.Crim.P. app., form 25; Greathouse v. United States, 548 F.2d 225, 227 (8th Cir.), cert. denied, 434 U.S. 838, 98 S.Ct. 130, 54 L.Ed.2d 100 (1977). Although not a part of the sentence, the decision of prison authorities ² on these matters is obviously of great importance to the person confined for they determine the ability of his family and friends to visit him and the physical environment in which he will serve his sentence.

A presentence report is not required if the court finds "that there is in the record information sufficient to enable the meaningful exercise of the sentencing discretion, and the court explains this finding on the record." Fed.R.Crim.P. 32(c)(1). The rule patently contemplates that this determination shall be made before sentence is imposed. See United States v. Chiantese, 582 F.2d at 981 & n.17. In this case the court made no such finding; however, when the deficiency was pointed out by the defendant in his motion for correction and change of sentence, the Assistant United States Attorney suggested a remedy to the judge:

Thank you, Your Honor. For the record, if I understood the Court, the Court is finding that there is in the record information sufficient to enable you to make the meaningful exercise of sentencing discretion that you did, and you've explained that and it's now on the record, is that correct?

The judge responded:

Well, I haven't seen the record since we tried that case, but you've refreshed my memory and I remember we tried that case a couple of days.

This response later was supplemented by a judgment stating:

The Court finds that no useful purpose would be served by preparing a presentence report to be used as an aid to the Court in imposing sentence. This Court conducted the murder trial of this defendant, heard the evidence presented and observed defendant during the course of the trial. The Court at the time of sentencing and now has sufficient information available to meaningfully impose a proper sentence; that based upon that information, regardless of what may be produced by a presentence report, the Court would not designate an early parole eligibility as provided by 18 U.S.C. 4205(b) in this particular case.

Although the defendant had been convicted of first degree murder, he was, according to the representations made by defense counsel, a first offender, and a veteran Although rule 32 requires that the presentence report be made prior to sentencing and contemplates that the decision to waive the presentence report must be made before sentencing, there may be times when the judge's failure to state in advance the reasons for not ordering the report might be harmless error. See United States v. Chiantese, 582 F.2d at 981 & n.17. When, however, eighteen months have elapsed since the time the decision should have been made, the sentencing judge fails even to consult the impartial, trained probation officer whose very appointment is largely for the purpose of assisting him, ⁶ and decides without even referring to the documents that might incline an impartial judge to clemency, we cannot condone the failure to comply with the rule.

of the Vietnam War; and a military service record and numerous affidavits submitted on the defendant's behalf attested to his good character. Although the judge said at the outset of the hearing that he had not read but would later read these documents, he made his decision on the bench the same day without looking at them. His lack of memory of the case tried eighteen months before is shown by the excerpts from the record set forth in the appendix; so, too, is his prejudgment that he could meaningfully exercise the discretion given to him and that a presentence investigation could be of no assistance.

Rule 32 denies any judge the discretion to reduce the hearing on sentence to a meaningless formality. "If this rule has any purposes, the supplying of facts and insights into both the background(s) and the potentialities (for good or evil) of young, felony first offenders must be among the most important." United States v. Dinapoli, 519 F.2d at 108. As the Dinapoli court then further observed: "Those who have studied the sentencing problem in depth are unanimous in recommending that presentence reports be secured in all felony cases, particularly those involving first offenders. NCCD Model Sentencing Act, Art. I, § 2 (1963); ALI Model Penal Code § 7.07(1) (Prelim. Official Draft 1962); ABA Standards Relating to Sentencing Alternatives and Procedures § 4.1(b) (1968)." Id.; see United States v. Frazier, 479 F.2d 983, 986-87 (2d Cir. 1973); United States v. Manuella, 478 F.2d 440 (2d Cir. 1973). But see United States v. Kane, 450 F.2d 77, 83 (5th Cir. 1971), cert. denied, 405 U.S. 934, 92 S.Ct. 954, 30 L.Ed.2d 810 (1972); United States v. Teague, 445 F.2d 114, 121-22 (7th Cir. 1971); Cassidy v. United States, 428 F.2d 585, 588 (8th Cir. 1970); King v. United States, 410 F.2d 1127 (9th Cir. 1969) (per curiam).

Accordingly, we reverse the trial court's judgment denying the motion to vacate the sentence and set the sentence aside. We remand for the ordering of a presentence investigation and report, and resentencing of the defendant.

The trial judge who initially imposed the sentence has stated twice on the record that no presentence report could change his mind. He has foreclosed meaningful consideration of the report that he is required to receive and to weigh. He has demonstrated that he cannot make a decision in regard to this defendant with the impartiality required of all who sit in judgment. See Johnson v. Mississippi, 403 U.S. 212, 216, 91 S.Ct. 1778, 1780, 29 L.Ed.2d 423, 427 (1971) (per curiam) ("Trial before 'an unbiased judge' is essential to due process."); Brown v. Vance, 637 F.2d 272, 281 (5th Cir. 1981) ("(D)ue process guarantee(s) ... a fair trial before an impartial judge ...."); ABA Code of Judicial Conduct, Canon 2(A) (1972) ("A judge should...