U.S. v. Stevenson

• Decision Date: 07 April 1978
• Docket Number: No. 77-1844,77-1844
• Citation: 573 F.2d 1105
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael Craig STEVENSON, Defendant-Appellant, Ronald Richard Stevenson a/k/a Emil Jason Christian, Cherie Kathryn Soria, Donald Charles Sader, and Rodney Leroy Stair, Defendants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1105

573 F.2d 1105

UNITED STATES of America, Plaintiff-Appellee, v. Michael Craig STEVENSON, Defendant-Appellant Ronald Richard Stevenson a/k/a Emil Jason Christian, Cherie Kathryn Soria, Donald Charles Sader, and Rodney Leroy Stair, Defendants.

No. 77-1844.

United States Court of Appeals, Ninth Circuit.

April 7, 1978.

Francis J. Diskin, Asst. U. S. Atty. (argued), Seattle, Wash., for plaintiff-appellee.

On Appeal from the United States District Court for the Western District of Washington.

Before MERRILL, DUNIWAY and CHOY, Circuit Judges.

CHOY, Circuit Judge:

Michael Craig Stevenson appeals his conviction for illegally conspiring to import marijuana. He challenges the method and basis for imposition of his sentence. We affirm.

I. FACTS AND PROCEEDINGS BELOW

Stevenson, Donald C. Sader, and three others were charged in a multi-count indictment with various federal narcotics offenses under 21 U.S.C. §§ 812, 952(a)(1), 960(b)(2) & 963. The defendants were accused of planning and executing a scheme to obtain marijuana, in the form of high grade Thai sticks, in Thailand and to smuggle it into the United States for ultimate sale and distribution.

Although not originally involved with the conspiracy, Stevenson joined the group when additional financing became necessary. He supplied the money and subsequently made four trips to Thailand during which he acquired the contraband for importation.

At the time of the indictment only Stevenson and Sader were available for trial. Approximately two weeks prior to trial, Sader pleaded guilty to a conspiracy count and received a three-year sentence followed by a special parole term of two years. His sentence was reduced to a six-month "split sentence" on work release. After one day of trial in which Sader gave the only substantive testimony, Stevenson changed his plea to guilty of one count of conspiracy.

Prior to the sentencing date and after a review of the Probation and Parole Office presentence report, Stevenson filed a motion to strike portions of the presentence report or, in the alternative, to conduct a factual hearing about the report's contents. At the sentencing hearing the court denied the motion and sentenced Stevenson to a term of four years in prison with a special parole term of two years to follow. The maximum sentence for violation of the statute in question was five years and/or a $15,000 fine.

II. ISSUES

Stevenson raises three issues on appeal.

A. Basis for Sentencing

Appellant recognizes the broad discretion granted to the trial judge to sentence within statutorily prescribed limits. See Dorszynski v. United States, 418 U.S. 424, 431, 94 S.Ct. 3042, 41 L.Ed.2d 855 (1974); United States v. Kearney, 560 F.2d 1358, 1369 (9th Cir. 1977); United States v. Perri, 513 F.2d 572, 575 (9th Cir. 1975). He contends, however, that the process by which the judge arrived at the sentence requires that the sentence be vacated. See United States v. Hartford, 489 F.2d 652, 654 (5th Cir. 1974). We find nothing so defective in the process employed by the trial court to warrant such a result.

Before imposing a four-year sentence upon Stevenson, the court recited several reasons for it, all of which involved comparisons of Stevenson with his co-conspirator Sader. Specifically, the trial court noted differences in age, prior convictions, cooperation with law enforcement officials and sophistication.

By articulating the basis for Stevenson's sentence, the trial judge followed our ruling in United States v. Capriola, 537 F.2d 319, 321 (9th Cir. 1976), where we recognized that (w)hen there is substantial disparity in sentences imposed upon different individuals for engaging in the same criminal activity, the preservation of the appearance of judicial integrity and impartiality requires that the sentencing judge record an explanation.

Stevenson claims that the information upon which the trial judge relied contained certain errors and he seeks reversal on due process grounds. The judge accounted for co-defendant Sader's lesser sentence because Sader was younger, less "sophisticated," and more cooperative with law enforcement officials than Stevenson. Stevenson disputes the propriety of the judge's reliance on these factors for differential sentencing; he points out that the judge incorrectly stated that Sader had no prior record. Even if Stevenson is correct, when balanced against the other factors which we find to be substantially accurate, consideration of this alleged misinformation was not an error of constitutional magnitude. Stevenson had the benefit of representation by able counsel who pointed out the inaccuracy to the court and presented additional information favorable to his client. This situation therefore, is distinguishable from Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948), where the Supreme Court reversed a conviction and stated:

It is not the duration or severity of this sentence that renders it constitutionally invalid; it is the careless or designed pronouncement of sentence on a foundation so extensively and materially false, which the prisoner had no opportunity to correct by the services which counsel would provide, that renders the proceedings lacking in due process.

334 U.S. at 741, 68 S.Ct. at 1255. See also United States v. Tucker, 404 U.S. 443, 447-48, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972).

Additionally, there was no indication that the judge materially relied upon speculative and unsupported information in a presentence report to impose a substantially more severe sentence than he would otherwise have done. See United States v. Weston, 448 F.2d 626, 631 (9th Cir. 1971), Cert. denied, 404 U.S. 1061, 92 S.Ct. 748, 30 L.Ed.2d 749 (1972) (additional fifteen year sentence imposed on the basis of unsworn and otherwise unverified evidence by unidentified informer accusing defendant of other crimes far more serious than the one for which she had been convicted). Accordingly, the sentence stands.

B. Failure to Order New Sentencing Judge

Stevenson next contends that exposure to certain unsupported statements found in the presentence report so prejudiced the sentencing judge that his failure to excuse himself constituted reversible error. We disagree.

At the sentencing hearing the judge explicitly stated:

I want to make it clear to you, Mr. Stevenson, . . . that I am disregarding and not considering the unsupported, unsworn hearsay material contained in the presentence report.

We see no reason to doubt this unequivocal statement. The only authority cited by Stevenson in support of his position is Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). Santobello, however, turned on the failure of the prosecutor to honor a plea bargain, which the Court felt merited vacating the sentence. Since Stevenson alleges no prosecutorial misconduct, the reasoning of Santobello does not apply here.

C. Unsupported Presentence Material

Stevenson urges, finally, that the judge should have struck the prejudicial hearsay statements from the presentence report to avoid their consideration by the Parole Commission. Again, we disagree.

The judge did not consider those portions of the presentence report which he felt lacked adequate support and he agreed to attach a transcript of the sentencing proceedings to the report in which he stated his objections to such material. He did not strike portions of the report as requested by Stevenson because he felt he lacked...