U.S. v. McGuinness, 84-3227
| Decision Date | 26 August 1985 |
| Docket Number | No. 84-3227,84-3227 |
| Citation | 769 F.2d 695 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Daniel C. McGUINNESS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Larry D. Simpson, Tallahassee, Fla., for defendant-appellant.
David T. McGee, Asst. U.S. Atty., Tallahassee, Fla., for plaintiff-appellee.
Appeal from the United States District Court for the Northern District of Florida.
Before GODBOLD, Chief Judge, HATCHETT, Circuit Judge, and TUTTLE, Senior Circuit Judge.
The defendant was found guilty under all counts charging various drug offenses and a continuing criminal enterprise under 21 U.S.C. Sec. 848. He escaped soon after trial and remained at large for some two and one half years. In the interim the trial judge resigned. Defendant was sentenced by another judge under count I, the continuing criminal enterprise count, to a maximum of 60 years confinement without parole and a fine of $100,000. On the other three counts he was sentenced to lesser terms of imprisonment to run concurrently and additional fines totaling $45,000. 1
The only issue requiring discussion concerns sentencing. The sentencing district judge made a specific finding pursuant to Rule 25(b) of F.R.Crim.P. 2 that he could perform necessary post-conviction duties, including sentencing. During the sentencing, however, the judge affirmatively stated that he had not familiarized himself with the transcript of the trial. Nothing in the record tells us that he was familiar with the trial through any other means.
A sentencing judge enjoys broad discretion to determine whether he can perform sentencing duties in a case he did not try. But that principle does not cover this case where the judge affirmatively revealed that he had not familiarized himself with the transcript. In U.S. v. Bowser, 497 F.2d 1017 (4th Cir.1974), the sentence was vacated where it appeared that the sentencing judge, who did not preside over the trial, knew nothing of the trial or the circumstances of the bank robbery involved except what he may have learned from the preliminary hearing, the sentencing hearing, and the pre-sentence report. The Fourth Circuit noted that although it could not review the sentence itself it was empowered to scrutinize the sentence to ascertain whether there had indeed been an exercise of discretion. In U.S. v. Larios, 640 F.2d 938 (9th Cir.1981), the sentencing judge, who was not the trial judge, was requested to postpone sentencing to allow preparation of a transcript of the trial so the court could better understand the evidence. The judge declined and passed sentence. The Ninth Circuit reversed, saying that the sentencing judge, in using his discretion to determine if he is competent to take over sentencing duties, must be familiar enough with the case to be able to assign the appropriate sentence within the statutory guidelines.
We do not exclude the possibility that in...
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...judge's decision to proceed with sentencing." United States v. Larios, 640 F.2d 938, 942 (9th Cir.1981); see also United States v. McGuinness, 769 F.2d 695, 696 (11th Cir.1985) (stating that "[a] sentencing judge enjoys broad discretion to determine whether he can perform sentencing duties ......
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...in a case he did not try," there does not seem to be a federal constitutional principle at issue here. United States v. McGuinness, 769 F.2d 695, 696 (11th Cir.1985) (per curiam). As a result, Ferguson's claim likely involves solely state law issues that could not serve as the basis for a f......
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