U.S. v. Small, 80-5187

• Citation: 636 F.2d 126
• Decision Date: 06 February 1981
• Docket Number: No. 80-5187,80-5187
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Barry SMALL, Defendant-Appellant. Summary Calendar. . Unit B
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 126

636 F.2d 126

UNITED STATES of America, Plaintiff-Appellee, v. Barry SMALL, Defendant-Appellant.

No. 80-5187

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Unit B

Feb. 6, 1981.

Terrence L. Labelle, Fort Lauderdale, Fla., for defendant, appellant.

Bruce A. Zimet, Asst. U. S. Atty., Miami, Fla., for plaintiff, appellee.

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

Before TJOFLAT, VANCE and THOMAS A. CLARK, Circuit Judges.

THOMAS A. CLARK, Circuit Judge:

Appellant, Barry Small, plead guilty to conspiracy to distribute cocaine in violation of 21 U.S.C. § 846 and was sentenced to ten years in prison. On appeal Small contends that the sentencing judge violated appellant's due process rights when he considered the fact that appellant had been arrested on an independent charge of conspiracy to import marijuana in determining the length of appellant's sentence. We disagree and find, accordingly, that the trial judge was within his discretion in sentencing appellant.

Defendant was arrested on September 4, 1979, and originally charged with three counts in violation of 21 U.S.C. §§ 841(a)(1) and 846, including conspiracy to distribute cocaine and possession with intent to distribute cocaine. Shortly thereafter, on October 3, 1979, the defendant was arraigned before a federal magistrate, and trial was set for January 22, 1980. Shortly before trial, however, defendant voluntarily entered a plea of guilty to Count One, conspiracy to distribute cocaine.

During the February 27, 1980, sentencing hearing several individuals testified on behalf of the appellant, including friends, relatives, and business associates, describing appellant as a dedicated husband and father and a hard worker with sound business sense. The defendant further informed the court that he intended to form a partnership with a friend in the Bahamas in order to expand his fishing business. Small testified that the partnership would provide defendant with a steady source of income and would remove him from the potentially "corrupting" influences of his present circle of business associates. The pre-sentence report, containing substantially similar information, recommended a moderate prison sentence of six years.

However, on February 26, 1980, one day prior to sentencing, defendant was arrested on an independent charge relating to the importation of marijuana. This arrest was brought to the sentencing judge's attention by means of a memorandum submitted by the United States probation officer which stated:

The probation office has just learned that Mr. Small was arrested on February 26, 1980, by an agent of the Drug Enforcement Agency and charged with conspiracy to import marijuana.... Agent Schuller of the Drug Enforcement Agency was also the arresting official in this case, and feels that the court should be aware of all pending criminal cases before rendering its sentence.

On the basis of this memorandum and arrest, the trial judge rejected the original pre-sentence recommendation and imposed instead a ten-year prison sentence.

We are now faced with determining whether the trial judge abused his discretion in sentencing defendant Small to ten years' imprisonment, a term admittedly within the statutorily permissible limits under 21 U.S.C. § 846. We note at the outset that in order to prevail appellant must establish that the trial judge's action amounted to an arbitrary or capricious abuse of discretion. As this Circuit stated in United States v. Hayes, 589 F.2d 811, 826-827 (5th Cir. 1979), cert. denied, 444 U.S. 847, 100 S.Ct. 93, 62 L.Ed.2d 60 (1979):

(I)t is well settled that a Federal District Judge has wide discretion in determining what sentence to impose and such sentence will not be questioned so long as the sentence is within the statutory limits and there is no showing of arbitrary or capricious action amounting to a gross abuse of discretion."

In support of his position, appellant argues that a defendant must be given an adequate opportunity to rebut erroneous factual assumptions upon which a trial judge relies in imposing sentence. Appellant argues, therefore, that despite the trial judge's broad sentencing discretion, defendant retained the right not to be sentenced on the basis of possibly erroneous assumptions inferred from the recent marijuana arrest.

The cases upon which appellant's argument rests, however, are factually distinguishable. In Aguero-Segovia, ¹ for example, the defendants were convicted of transporting an illegal...