U.S. v. Read
| Decision Date | 15 April 1976 |
| Docket Number | No. 75-2402,75-2402 |
| Citation | 534 F.2d 858 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Bill Eugene READ, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Elliot J. Abelson (argued), Lappen, Abelson & Harris, Beverly Hills, Cal., for defendant-appellant.
Cornell D. Price, Asst. U. S. Atty. (argued), Los Angeles, Cal., for plaintiff-appellee.
Before BARNES, HUFSTEDLER and WRIGHT, Circuit Judges.
Read contends that the district court erred in denying his motion to set aside his guilty plea and in failing to disclose information about his alleged prior criminal activities upon which the district court relied in sentencing him.
When, as here, a defendant moves to set aside his guilty plea before sentencing, the motion should be freely allowed in the interests of justice. (Kadwell v. United States, 315 F.2d 667 (9th Cir. 1963).) However, the granting of the motion lies in the sound discretion of the district court. From our review of the record, we do not believe that the district court abused its discretion in rejecting the motion.
Read's second contention is meritorious. During Read's sentencing proceedings, his counsel challenged the factual foundation of a number of statements in the presentence report. The district court continued the sentencing hearing for the purpose of further investigation. Upon the return date, the court said:
Immediately thereafter the district court committed Read to custody for seven years.
We recognize the rule that federal sentences are not generally reviewable, Gore v. United States, 357 U.S. 386, 393, 78 S.Ct. 1280, 1284, 2 L.Ed.2d 1405, 1410 (1958), and the sentencing judge may draw on various sources for information that will assist him in determining appropriate punishment. Williams v. New York, 337 U.S. 241, 246, 69 S.Ct. 1079, 1082, 93 L.Ed. 1337, 1341 (1949).
The record in this case contains nothing from which we or the appellant can ascertain the identity of the person or persons to whom the court referred when it said "we checked with other law enforcement agencies," or the identity of the agencies which were contacted, or the substance of the information received, or the basis for that information. We cannot infer or assume from a silent record that any of this information was confidential.
A district judge is not required to reveal all the information he obtained prior to sentencing if he has good reason not to do so, but some explanation of why he need not do so is necessary once he has stated he has relied upon such information.
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Farrow v. U.S.
...procedure which we routinely use for other kinds of defects in sentencing, namely, to vacate and to resentence. (E. g., United States v. Read (9th Cir. 1976) 534 F.2d 858; United States v. Weston (9th Cir. 1971) 448 F.2d 626.) This is the procedure which we used, not only in Tucker itself, ......
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