United States v. Brager, 72-3196. Summary Calendar.

• Decision Date: 27 February 1973
• Docket Number: No. 72-3196. Summary Calendar.,72-3196. Summary Calendar.
• Citation: 474 F.2d 598
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Emmitt BRAGER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

474 F.2d 598 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Emmitt BRAGER, Defendant-Appellant.

No. 72-3196. Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

February 27, 1973.

Walter J. Woodman, Waxahachie, Tex. (Court-Appointed) for defendant-appellant.

Frank D. McCown, U. S. Atty., Ft. Worth, Tex., Charles D. Cabaniss, Asst. U. S. Atty., Dallas, Tex., for plaintiff-appellee.

Before JOHN R. BROWN, Chief Judge, and DYER and SIMPSON, Circuit Judges.

SIMPSON, Circuit Judge:

Emmitt Brager pled guilty to a one count indictment charging violation of Title 18, U.S.C., Section 659, theft from interstate shipment of goods of a value in excess of $100, two boxes of electric drills. He was adjudged guilty and thereafter received a custodial sentence of eight years, which was within the maximum confinement term provided by the statute.¹

He appeals, urging (a) that the sentence he received is so excessive as to constitute cruel and unusual punishment in violation of the Eighth Amendment to the U.S. Constitution,² and further (b) that since the trial judge admittedly based the length of the sentence in part upon appellant's serious prior criminal record, he was twice put in jeopardy for the same offenses, in violation of his Fifth Amendment rights.

Despite the earnestness and ingenuity with which Brager's contentions are argued by his counsel, we find no merit in either ground presented, and affirm.

As to the Eighth Amendment claim, see the following recent cases: United States v. Holley, 5 Cir. 1972, 463 F.2d 634, 639; United States v. Rojas-Colombo, 5 Cir. 1972, 462 F.2d 1091; United States v. Grene, 5 Cir. 1972, 455 F.2d 376, 377; United States v. White, 5 Cir.1971, 447 F.2d 493, 494; Rener v. Beto, 5 Cir. 1971, 447 F.2d 20 (it does not matter that Rener is a Texas habeas case, since Robinson v. California, Note 2, supra, made the Eighth Amendment applicable to the states through the Fourteenth); United States v. Williams, 5 Cir. 1971, 446 F.2d 486; United States v. Ruacho-Acuna, 5 Cir. 1971, 440 F.2d 1199, 1201; Castle v. United States, 5 Cir. 1968, 399 F.2d 642, 652. Rojas-Colombo, supra, is concise and to the point: "There is no merit to Colombo's sole contention which is that imposition of the maximum sentence allowable violated the prohibition of the Eighth Amendment to the United States Constitution against cruel and unusual punishment. (Citing cases)."

The Fifth Amendment double jeopardy claim is refuted by Williams v. New York, 1949, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337. There, after citing with approval Rule 32(c), F.R.Crim.P. dealing with pre-sentence investigations and reports,³ the Court observed:

". . . A recent manifestation of the historical latitude allowed sentencing judges appears in Rule 32 of the Federal Rules of Criminal Procedure. 18 U.S.C.A. That rule provides for consideration by federal judges of reports made by probation officers containing information about a convicted defendant, including such information `as may be helpful in imposing sentence or in granting probation or in the correctional treatment of the defendant . . .\'

"A sentencing judge\'s task within fixed statutory or constitutional limits is to determine the type and extent of punishment after the issue of guilt has been determined. Highly relevant — if not essential — to his selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant\'s life and characteristics. And modern concepts individualizing punishment have made it all the more necessary that a sentencing judge not be denied an opportunity to obtain pertinent information . . .

". . . Today\'s philosophy of individualizing sentences makes sharp distinctions for example between first and repeated offenders." (Emphasis supplied) 337 U.S. 246-248, 69 S.Ct. 1082-1083.

As pointed out in the appellee's brief, pages 8-9:

"The Constitutional propriety of considering a previous conviction in determining the sentence to be assessed for a subsequent offense is starkly obvious when one considers statutes which expressly provide for a greater penalty when a violation is a second or subsequent offense."

Recidivist statutes have been uniformly upheld in the face of Fifth Amendment double jeopardy assaults, as being not punishment for a prior offense, but for the repetition of criminal conduct. See, among other cases, Graham v. West Virginia, 1912, 224 U.S. 616, 623, 32 S.Ct. 583, 56 L.Ed. 917; Beland v. United States, 5 Cir. 1942, 128 F.2d 795; Burton v. United States, 9 Cir. 1959, 272 F.2d 473.

Affirmed.

* Rule 18, 5 Cir.; See Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir. 1970, 431 F.2d 409, Part I.

1 The statutory penalty under...