U.S. v. Won Cho

Decision Date10 April 1984
Docket Number82-1092,82-1101 and 82-1388,Nos. 82-1215,s. 82-1215
Citation730 F.2d 1260
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Richard WON CHO, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Edward L. HARRIS, Jr., Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Patrick Anthony RIGGANS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Murray Evans LAYBHEN, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Patricia L. Collins, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Janet I. Levine, Deputy Federal Public Defender, Los Angeles, Cal., for Cho.

Randy Sue Pollock, Deputy Federal Public Defender, Los Angeles, Cal., for Riggans, Harris and Laybhen.

Appeal from the United States District Court for the Central District of California.

Before BROWNING, Chief Judge, GOODWIN, WALLACE, KENNEDY, TANG, PREGERSON, ALARCON, NELSON, CANBY, NORRIS, and REINHARDT, Circuit Judges.

REINHARDT, Circuit Judge:

This is a consolidated appeal by four youths initially sentenced under the Federal Youth Corrections Act (YCA), 18 U.S.C. Secs. 5005-26 (1982), whose sentences were changed to adult sentences of various lengths. In each case, the youth offender had initially received a split YCA sentence--each was sentenced to YCA treatment for an indeterminate period not to exceed six years, but was required to undergo only a short period of YCA incarceration; execution of the remainder of the sentence was suspended and the youth offender was placed on probation. In each case, he was subsequently found by the district court to have violated the terms of his probation. In each case, the district court revoked the probation order and resentenced the youth offender to a period of adult incarceration. It appears that at least part of the reason for the district judge's decision to impose adult sentences on appellants was his belief that their YCA sentences had already been largely, if not completely, served. 1

Each youth offender challenges his resentencing. Each argues that a court may not increase a YCA sentence to an adult sentence upon violation of probation. Three also argue that their adult sentences are, in any event, impermissibly longer than the YCA sentences initially imposed. 2 The government argues that the Supreme Court's opinion in Ralston v. Robinson, 454 U.S. 201, 102 S.Ct. 233, 70 L.Ed.2d 345 (1981), establishes that the district court's actions were proper.

The district judge recognized that his practice of changing YCA sentences to adult sentences upon revoking probation for the violation of the terms of a probation order was of questionable validity, and he expressed a desire for a holding by this court on the issue. We reverse.

FACTS
Riggans

Patrick Anthony Riggans pleaded guilty to a charge of abstracting funds from a bank in violation of 18 U.S.C. Sec. 656 (1982). On January 31, 1977, Riggans was sentenced under section 5010(b) of the YCA, which provides for treatment as a youth offender for an indeterminate period not to exceed six years. 18 U.S.C. Sec. 5010(b) (1982). He was required to spend the first 20 days in a jail-type institution, to be served on consecutive weekends. Execution of the balance of his sentence was suspended, and he was placed on probation for four years.

On May 26, 1977, Riggans was found in violation of his probation for failing to report for his confinement, failing to report to his probation officer, and failing to submit monthly supervision reports. The district court revoked the probation order and ordered execution of the sentence previously imposed.

On July 1, 1977, the court modified the sentence. It ordered that Riggans spend 120 days in a jail-type institution, also to be served on consecutive weekends, and once again suspended the balance of the sentence. On November 15, 1977, a petition was filed alleging that Riggans had again failed to report for his confinement, report to his probation officer, and submit monthly supervision reports. On the same day, a warrant was issued for Riggans' arrest. "Because of an acute manpower shortage in the United States Marshal's Office," the warrant was not executed until over four years later. On January 7, 1982, Riggans appeared before the court and admitted that he had violated the terms of his probation. The court revoked the probation order, found him no longer suitable for handling under the YCA, and sentenced him to a three-year adult term of imprisonment.

On February 3, 1982, Riggans filed a motion to correct his sentence. His motion was denied. On this appeal, Riggans challenges the resentencing to an adult term and also argues that the government's unreasonable delay in executing his arrest warrant violated his right to due process and requires his discharge. Since February 22, 1982, Riggans has been released on a personal recognizance bond pending appeal.

Harris

On March 28, 1977, Edward Lee Harris pleaded guilty to one count of making a false claim against the government in violation of 18 U.S.C. Sec. 287 (1982). He, too, was sentenced under section 5010(b) of the YCA. The court ordered that Harris be confined in a jail-type institution for the first 20 days. Execution of the balance of the sentence was suspended, and the court ordered that he be placed on probation following his period of confinement. Under the terms of his probation, Harris was to devote 600 hours to a charitable cause, report to the court every 120 days, obey all laws, and comply with the rules of the probation office. The probation order was subsequently modified to require Harris' participation in a drug treatment program.

On November 6, 1981, Harris' probation officer filed a petition for violation of probation alleging that Harris had twice furnished urine samples containing traces of phencydidrene (PCP). On November 9, 1981, the probation officer filed an amended petition alleging further that Harris had failed to report for five urine tests and had failed to devote any hours to a charitable cause for a three-week period. Harris admitted all the allegations at the probation hearing. On November 9, 1981, the district court revoked Harris' probation order, found Harris no longer suitable for handling under the YCA, and sentenced Harris to a two-year adult term of imprisonment.

Harris filed a motion to correct his sentence under rule 35(a) of the Federal Rules of Criminal Procedure. The district court denied his motion and this appeal followed. Since February 3, 1982, Harris has been released on a personal recognizance bond pending appeal.

Laybhen

On January 21, 1978, Murray Evans Laybhen pleaded guilty to one count of aiding and abetting the commission of an unarmed bank robbery in violation of 18 U.S.C. Sec. 2113(a) (1982). On February 27, 1978, Laybhen was sentenced under section 5010(b) of the YCA. The court ordered that Laybhen be confined in a jail-type institution for 46 days, to be served on consecutive weekends. Execution of the remainder of the sentence was suspended, and Laybhen was placed on probation.

On June 8, 1982, a petition for violation of probation was filed alleging that Laybhen (a) was convicted of drinking an alcoholic beverage in public in violation of the Long Beach Municipal Code, (b) was convicted of malicious mischief in violation of the California Penal Code, (c) was convicted of driving under the influence of alcohol in violation of the California Vehicle Code, (d) failed to notify his probation officer in writing of his arrest by Long Beach officials for fighting in public, a violation of the California Penal Code, and (e) failed to notify his probation officer in writing of the arrest for malicious mischief that resulted in the conviction noted above.

At the probation revocation hearing, Laybhen admitted each of the allegations. On June 21, 1982, the district court revoked the probation order, found Laybhen no longer suitable for handling under the YCA, and sentenced Laybhen to a five-year term of imprisonment. The court ordered that Laybhen be incarcerated for the first six months, suspended the execution of the remainder of the sentence and placed him on probation for a period of five years. Laybhen appeals his resentencing.

Cho

Richard Won Cho pleaded guilty to a charge of bank robbery in violation of 18 U.S.C. Sec. 2113(a) (1982), and, on August 7, 1978, was sentenced under section 5010(b) of the YCA. Like the other appellants, Cho was given a split sentence. In his case, the initial term of confinement was 30 days. Execution of the balance of the sentence was suspended, and he was placed on probation. The terms of his probation included a requirement that he perform 1500 hours of community service.

On March 31, 1980, the district court found Cho in violation of the terms of his probation. Cho admitted to the court that he had been convicted under state law of introducing narcotics into jail, that he had possessed a stolen handgun, and that he had failed to perform the required community service. The district court then revoked the probationary order and ordered that the YCA sentence be executed. Accordingly, Cho was ordered committed to the custody of the Attorney General for YCA treatment and supervision. Subsequently, he filed a motion to reduce his sentence under rule 35(b) of the Federal Rules of Criminal Procedure. The district court granted his motion on December 19, 1980, and reinstated his probation.

On November 23, 1981, the district court once again found Cho in violation of the terms of his probation. Cho admitted that he had been convicted under state law of robbery and using a firearm in the commission of a felony, and that he had failed to comply with the reporting and community service requirements. The district judge revoked his probation and found that he was no longer suitable for handling under the YCA. Cho was sentenced to five years...

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