U.S. v. Pryor
| Citation | 957 F.2d 478 |
| Decision Date | 12 March 1992 |
| Docket Number | Nos. 90-2405,90-2415 and 90-2423,s. 90-2405 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Chester PRYOR, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
Gwenn R. Rinkenberger, Andrew B. Baker, Jr. (argued), Asst. U.S. Attys., Office of the U.S. Atty., Dyer, Ind., for U.S M. Jacqueline Walther (argued), Kielian & Walther, Chicago, Ill., for Chester Pryor.
Before COFFEY, RIPPLE and MANION, Circuit Judges.
Chester Pryor appeals his sentences for violation of probation, credit card fraud in violation of 18 U.S.C. § 1014 and taking with the intent to steal money of a federally insured bank in violation of 18 U.S.C. § 2113(b). The appellant further requests that his stipulation to the probation violation and his guilty pleas to the credit card and bank frauds be set aside. We refuse to set aside either his stipulation to the probation violation or pleas of guilty--we affirm.
Pryor pled guilty in the Northern District of Indiana on December 18, 1985, to making a false claim for unemployment benefits against the Railroad Retirement Board in violation of 18 U.S.C. § 287. The district court (Judge Michael S. Kanne) suspended the imposition of sentence and placed Pryor on probation for a period of five years. In September of 1988, while on probation, Pryor was charged and convicted of bank fraud in the United States District Court for the Northern District of Illinois. After pleading guilty to two counts of bank fraud in violation of 18 U.S.C. § 1344, Pryor was sentenced to twenty-seven months of imprisonment to be followed by three years of supervised release on each count, with the sentences to be served concurrently. 1 Just prior to his release from federal imprisonment for the Illinois sentence, Pryor was arrested January 29, 1990, on a warrant issued out of the Northern District of Indiana for probation revocation. On the date set for the probation revocation hearing, Pryor and the government joined in a request for a continuance in order that two additional charges might be disposed of with the probation revocation. At this time Pryor filed petitions with the court requesting that the court allow him to enter guilty pleas to the two additional charges.
On April 12, 1990, Pryor appeared before the district court in the Northern District of Indiana for a probation revocation hearing as well as for the court's consideration of his guilty pleas, pursuant to a plea agreement, to the two criminal informations involving the new charges for the federal crimes committed in Indiana. 2 At the hearing, the defendant stipulated to the commission of a crime in Illinois, thus establishing a violation of the terms of his federal probation. At that time the government submitted a copy of the certificate of conviction from the United States District Court for the Northern District of Illinois, Western Division, in confirmation of the probation violation. The court questioned Pryor thoroughly in dealing with the crimes he was pleading to as well as his understanding of the terms of the plea agreement including his understanding of the significance of the rights he was waiving in entering the pleas of guilty. Additionally, the judge was careful to point out to the defendant that the court's decision as to whether to accept the guilty pleas for the new charges would have no influence on the disposition of the probation revocation:
The court took the issue of the probation revocation under advisement and told the defendant he would defer his ruling as to whether he would accept or reject the plea agreement until the sentencing hearing.
Under the terms of the plea agreement, the government agreed to recommend that Pryor receive the minimum sentence under the guideline range on the two new charges of bank fraud and credit card fraud in Indiana, and that the sentences be served concurrently with the sentence imposed under the probation revocation in connection with the prior conviction of making a false claim against a governmental agency (18 U.S.C. § 287). At the probation revocation and guilty plea hearing, the district judge made certain that Pryor understood that the court was not bound by the government's recommendations. He further explained that he would be free to impose the maximum sentences consecutively or concurrently for the convictions of bank fraud, credit card fraud and the parole revocation. At the sentencing hearing, the trial judge determined that he would accept the government's recommendation of imposing the minimum term of imprisonment within the guideline range on the charges of bank fraud and credit card fraud, to be served concurrently with the sentence imposed on the revocation of probation count. After determining that the applicable guideline range for the criminal informations was twelve to eighteen months imprisonment, the court sentenced Pryor concurrently to twelve months incarceration for bank fraud and twelve months for credit card fraud, concurrent with a five year maximum term of imprisonment for his probation violation on his conviction of making a false claim against a governmental agency. 3 The court further imposed a term of three years of supervised release to be served upon the termination of his confinement. As a special condition of release on both the credit card fraud and bank fraud charges, the court ordered that Pryor "make restitution in the amount of $4,500 to the 1st National Bank of East Chicago." The court also imposed a requirement of 300 hours of community service as a condition of release.
The appellant raises the following issues on appeal: 1) whether the sentencing judge's ex parte conference with the probation officer who submitted the presentence report was reversible error; 2) whether Pryor's stipulation to the probation violation was void for being involuntary; and 3) whether the government's failure at the sentencing hearing to advise the court of Pryor's willingness to cooperate in ongoing investigations, in accordance with the plea agreement, was a breach of the agreement and requires that the guilty pleas be set aside. 4
At the sentencing hearing, the judge stated in the presence of Pryor and his attorney that he had engaged in an in-depth discussion of the case with the probation officer who wrote the presentence report. Pryor argues that this ex parte communication requires remanding for resentencing because it deprived him of the opportunity to respond to the information provided by the probation officer in accordance with Federal Rule of Criminal Procedure 32(c)(3). The appellant has failed to cite any case law in support of his proposition that it is reversible error for the sentencing judge to communicate ex parte with the probation officer who authored the presentence report prior to the sentencing hearing, and we are unaware of any such case. Pryor relies upon United States v. Spudic, 795 F.2d 1334 (7th Cir.1986), for his argument that the judge's ex parte meeting with the probation officer was reversible error. Spudic is distinguishable from this case, as it dealt with the question of the sentencing judge's ex parte meeting with a "sentencing counsel" of probation officers. Under that circumstance, we held that resentencing was necessary because the district judge could have inadvertently been influenced by information from a probation...
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