United States v. Brown

• Decision Date: 23 May 1973
• Docket Number: No. 739,Docket 73-1068.,739
• Parties: UNITED STATES of America, Appellee, v. Wesley Clyde BROWN, Appellant.
• Court: U.S. Court of Appeals — Second Circuit

479 F.2d 1170 (1973)

UNITED STATES of America, Appellee, v. Wesley Clyde BROWN, Appellant.

No. 739, Docket 73-1068.

United States Court of Appeals, Second Circuit.

Argued March 23, 1973.

Decided May 23, 1973.

Michael B. Standard, New York City (Herbert Jordan, Rabinowitz, Boudin & Standard, New York City, N. Y., of counsel), for appellant.

David A. De Petris, Asst. U. S. Atty. (Robert A. Morse, U. S. Atty., E. D. N. Y., L. Kevin Sheridan, Asst. U. S. Atty., Brooklyn, N. Y., of counsel), for appellee.

Before SMITH, FEINBERG and MANSFIELD, Circuit Judges.

MANSFIELD, Circuit Judge:

By decision filed on December 6, 1972, United States v. Brown, D. C. Cir., 470 F.2d 285, we vacated a judgment of the United States District Court for the Eastern District of New York, Walter Bruchhausen, Judge, sentencing Wesley Clyde Brown to a term of two and one-half years imprisonment upon his plea of guilty to a one-count indictment charging him with refusal to report for induction in violation of 50 U.S.C.App. § 462(a). The case was remanded for resentencing by another judge. We held that the refusal of the sentencing judge to make the presentence report available to Brown, pursuant to a uniform policy the judge had followed, constituted a failure to exercise his discretion under Rule 32(c)(2), F.R.Cr.P., which we found requires the discretion to be "exercised on a case-by-case basis, not by a blanket policy of non-disclosure." 470 F.2d at 288.

Upon remand the case was assigned by lot to Judge Travia, who made the presentence report available to Brown and his counsel before sentencing and, after holding a sentencing hearing, resentenced Brown to the same term that had previously been imposed. From this second sentence Brown, who has been incarcerated since January 27, 1972, appeals. He contends that Judge Travia, upon the resentencing, committed various errors which necessitate still another resentencing. We cannot agree and must affirm the judgment of the district court.

Since the background of the case up to the point of our remand is set forth in our earlier opinion, we need not repeat it here. Upon this appeal Brown urges that Judge Travia erred in (1) failing to give any legally justifiable reasons for reimposing the same sentence, (2) failing to identify the facts in the presentence report relied on by him, (3) basing the sentence on Brown's political beliefs and on erroneous information in the presentence report, (4) failing to "redo" the entire sentencing process, and (5) abusing his sentencing discretion in reimposing the two and one-half year sentence.

To the extent that Brown asks us to review on the ground that the sentence was excessive, we must decline the invitation. We are still bound by the basic principle against appellate review of sentences except in extraordinary circumstances. United States v. Tucker, 404 U.S. 443, 447, 92 S.Ct. 589, 30 L. Ed.2d 592 (1972); Gore v. United States, 357 U.S. 386, 393, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958); Blockburger v. United States, 284 U.S. 299, 305, 52 S. Ct. 180, 76 L.Ed. 306 (1932). Although cracks in the wall are beginning to develop, see Woosley v. United States, 478 F.2d 139 (8th Cir. 1973) (en banc) (5-year sentence imposed pursuant to a rigid policy upon a Jehovah's Witness for refusing induction vacated on ground that district court had "manifestly or grossly abused its discretion" and "the severity of the sentence shocks the judicial conscience"), the present case is not an appropriate one for departure from the policy against appellate review. Here the sentence was one-half of the permissible five-year statutory limit. In characterizing the two and one-half year sentence imposed on Brown as "harsh" in our earlier opinion —a view from which we do not retreat —we were referring to that fact as an additional reason for requiring the sentencing judge to exercise his discretion on an individual basis in this case. That discretion has now been exercised in favor of full disclosure of the presentence report with respect to Brown, and Judge Travia, in imposing sentence, has acted within the discretionary limits afforded to the district court, which are broad. United States v. Tucker, 404 U. S. 443, 447, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972); United States v. Sweig, 454 F. 2d 181, 183-184 (2d Cir. 1972); McGee v. United States, 462 F.2d 243, 245 (2d Cir. 1972) Absent the sentencing judge's reliance on constitutionally impermissible factors or upon material inaccuracies, it is not our function to review a sentence falling within statutory limits. United States v. Mitchell, 392 F.2d 214 (2d Cir. 1968); Blockburger v. United States, 284 U.S. 299, 305, 52 S. Ct. 180, 76 L.Ed. 306 (1932); United States v. Holder, 412 F.2d 212, 214 (2d Cir. 1969).

Brown's contention that the district court erred by failing to state the reasons for reimposing the same sentence and by failing to designate the portions of the presentence report relied upon by it must also be rejected. Were we writing on a clean slate, we might well be persuaded in favor of a requirement that the sentencing judge state his reasons. Such a rule would be "a powerful safeguard against rash and arbitrary decisions" at this crucial stage of the criminal process where the defendant's liberty is at stake. M. Frankel, Criminal Sentences—Law Without Order 41 (Hill and Wang 1972). It would serve "to promote thought by the decider, to compel him to cover the relevant points, to help him eschew irrelevancies —and, finally, to make him show that these necessities have been served." Id. at 40. It would also promote fairness by minimizing the risk that the sentencing judge might rely on misinformation or on inaccuracies in the presentence report. See United States v. Needles, 472 F.2d 652 (2d Cir. 1973). If a misapprehension on the court's part were disclosed, the defendant and his counsel would then have the opportunity to answer and explain, pointing out the error. A Sphinx-like silence on the court's part precludes anyone (including the parties, the judge, and an appellate tribunal) from learning whether he acted in error. Furthermore, a statement of reasons by the court could prove to be of considerable assistance to prison and parole authoritites in later determining the type of institution in which the defendant should be incarcerated and the time and conditions of parole.

In the present case it would have been of considerable assistance to have had the rationale of the conscientious sentencing judge, since the information found in the presentence report and accompanying documents, all of which we have examined, is for the most part favorable to Brown. He has no known criminal record, has frankly admitted his offense, and has based his refusal to report for induction on moral grounds. The report describes him as a person who has had a better than average background and education. He has enjoyed the support of his parents and siblings, an average scholastic rating, and a good behavior record in school. He is not addicted to narcotics and, prior to his incarceration, he was reasonably self-supporting. An impressive array of letters have been sent to the court by persons offering Brown employment, and by clergymen, teachers and other members of the community, which emphasize his sincerity and talents. With respect to Brown's attitude and refusal to serve in the war effort the presentence report states that he has "deep personal convictions" and that while he is not a member of the Black Panther Party his refusal to serve is based on "beliefs as set forth in the Black Panther Party tenets from which he quotes extensively." In the face of this profile the reasoning behind the court's two and one-half year prison sentence is difficult to grasp.

Although a sentencing judge should in our view be encouraged to state his reasons and such a statement would have been welcomed here, we have repeatedly held that in view of the trial judge's very broad discretion, see decisions cited page 1172, supra, "he is generally under no obligation to give reasons for his sentencing decisions," McGee v. United States, 462 F.2d 243, 247 (2d Cir. 1972). Clarification has been required only under circumstances not found here, e. g., where a sentence was imposed upon the basis of (1) misinformation of constitutional magnitude, such as an inaccurate criminal record, Townsend v. Burke, 334 U.S. 736, 741, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948), (2) a record comprising prior unconstitutional convictions, e. g., United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972), (3) the effect of a simultaneous sentence and conviction upon a more serious count of the indictment, which was later invalidated, McGee v. United States, 462 F.2d 243 (2d Cir. 1972), or (4) failure of the court to receive and consider mitigating circumstances, United States v. Malcolm, 432 F.2d 809, 818 (2d Cir. 1970).

With one possible exception, discussed below, we here fail to find evidence of any materially false assumptions on the part of the sentencing judge or reliance by him on material inaccuracies or on constitutionally impermissible factors. After Brown and his counsel had been afforded the opportunity to read, review and discuss the presentence report, Judge Travia convened court, made a record of Brown's motion papers and of the numerous letters with respect to Brown that had been received and read by the court and by the Probation Office. Brown's counsel then directed the court's attention to several inaccuracies in the presentence report, which were reviewed in detail by Judge Travia, who indicated either that they were immaterial or that he would not give them weight. For instance, the judge stated that as far as he was concerned Brown was not considered to be a member of the Black Panther Party. None of the alleged errors in the report, which we have reviewed, are of sufficient importance to be of constitutional significance. Accordingly we...