United States v. Espinoza

• Decision Date: 03 July 1973
• Docket Number: No. 72-3389.,72-3389.
• Citation: 481 F.2d 553
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Eliseo ESPINOZA, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

481 F.2d 553 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Eliseo ESPINOZA, Jr., Defendant-Appellant.

No. 72-3389.

United States Court of Appeals, Fifth Circuit.

July 3, 1973.

John J. Pichinson, Corpus Christi, Tex., for defendant-appellant.

Anthony J. P. Farris, U. S. Atty., Ellis McCullough, Robert G. Darden, Asst. U. S. Attys., Houston, Tex., for plaintiff-appellee.

Before GOLDBERG, CLARK and RONEY, Circuit Judges.

GOLDBERG, Circuit Judge:

This appeal presents the question of whether a sentencing judge, after announcing a rather long sentence, can refuse to permit a defendant to rebut factually the reasons stated orally by the judge for the sentence when defendant claims that the reasons are factually erroneous. Finding that the court below erred in refusing defendant this opportunity, we vacate the sentence and remand for resentencing.

Defendant-appellant, Eliseo Espinoza, Jr., was charged in a three count indictment along with two co-defendants, Gonzales and Robelin, for an offense involving the distribution of heroin in violation of 21 U.S.C. § 841(a)(1). Count one of the indictment charged Gonzales and Robelin, but not appellant, with distributing 38.04 grams of heroin. Count two charged Gonzales and Robelin, but not appellant, with distributing 39.8 grams of heroin. Count three charged Robelin and appellant with distributing 0.62 grams of heroin. Gonzales and Robelin both pleaded guilty to all charges. Appellant went to trial on count three and was found guilty by the jury.

At a consolidated sentencing proceeding, the district judge allowed each of the three defendants and their attorneys to address the court prior to sentencing. Gonzales, who was on parole from another conviction and who pleaded guilty to two counts of distributing over 77 grams of heroin, was sentenced to consecutive six year terms on each of the two counts with a special parole term of six years (12 years imprisonment). Robelin, who pleaded guilty to three counts of distributing over 78 grams of heroin, was sentenced to five years on each count, the first two to run consecutively and the third concurrently with a special parole term of five years (10 years imprisonment). Appellant, who had been convicted¹ of one count of distributing 0.62 grams of heroin,² was sentenced to fifteen years with a special parole term of five years (15 years imprisonment).

Prior to sentencing, appellant's counsel argued to the court that to his knowledge appellant had never been convicted of a felony, was 27 years old, was married with a couple of children, and had been gainfully employed prior to a recent back injury. Immediately prior to announcing the three sentences, the court made the following remarks on the record:

"One of the Defendants has been in trouble before, but they are all a part of what seems to be a very serious problem, and whether they have ever actually been convicted or not, Mr. Espinoza, your record is bad, your record for threats and assaults."

No mention was ever made of a presentence report and appellant's counsel never requested disclosure of the report, if in fact one existed.

On October 2, 1972, some seven days after the sentence was announced, appellant's counsel filed a "petition for reduction of sentence," see Rule 35, F.R. Crim.P., in which he requested an opportunity to present evidence to rebut the court's statement and apparent presumption that appellant's "record for threats and assaults was bad."³ At a hearing on October 10, the judge, apparently without explanation, denied appellant's request to submit evidence and overruled the motion for reduction of sentence. It is from this denial of the Rule 35 motion that Espinoza appeals.

As a threshold matter, it is important to note what is not involved in this appeal. We are not asked to review the length of the sentence, cf. United States v. Moore, 5 Cir. 1970, 427 F.2d 38; Withrow v. United States, 5 Cir. 1969, 420 F.2d 1220, 1225. There is no contention that the sentence itself was illegal, and it is undisputed that the sentence was within the statutory limit. Finally, we are not directly presented with any of the increasingly troublesome problems involved with disclosure of presentence reports, cf. United States v. Frontero, 5 Cir. 1971, 452 F.2d 406.

What is involved here is the right of a defendant to at least minimal safeguards to insure that the sentencing court does not rely on erroneous factual information when assessing sentence. From the record in this case, it is readily apparent that the court below relied, at least in part, on appellant's "bad record" when assessing appellant a longer sentence than his co-defendants, both of whom were charged with considerably more than appellant. Appellant contested the court's factual assumption as to his record and sought only an opportunity to present facts that he claimed would dispel the allegedly erroneous assumption.

In Townsend v. Burke, 1948, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690, defendant challenged the fairness of the sentencing procedure where the judge had relied on apparently erroneous factual information in assessing sentence. The Supreme Court granted the requested habeas relief and stated inter alia:

"This prisoner was sentenced on the basis of assumptions concerning his criminal record which were materially untrue. Such a result whether caused by carelessness or design is inconsistent with due process of law and such conviction cannot stand. 334 U.S. at 740, 68 S.Ct. at 1255."⁴

In 1972, in United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592, the Supreme Court reiterated the holding of Townsend, and remanded for resentencing where the sentencing judge had considered defendant's prior convictions in which defendant had not been represented by counsel.⁵ Implicit in the Court's holding in Tucker is the principle that despite the broad discretion left to the trial judge in assessing background information for sentencing purposes, see Williams v. New York, 1949, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337, a defendant retains the right not to be sentenced on the basis of invalid premises. See Russo v. United States, 5 Cir. 1972, 470 F.2d 1357; Clay v. Wainwright, 5 Cir. 1972, 470 F.2d 478; Franchi v. United States, 5 Cir. 1972, 464 F.2d 1035; Lipscomb v. Clark, 5 Cir. 1972, 468 F.2d 1321; Davis v. Wainwright, 5 Cir. 1972, 462 F.2d 1354; Thomas v. United States, 5 Cir. 1972, 460 F.2d 1222; Craig v. Beto, 5 Cir. 1972, 458 F.2d 1131; Wheeler v. United States, 9 Cir. 1972, 468 F.2d 244; Garnet v. Swenson, 8 Cir. 1972, 459 F.2d 464; United States v. Bishop, 7 Cir. 1972, 457 F.2d 260.

It is true, as the government argues, that a majority of jurisdictions, including the Fifth Circuit, have denied defendants an absolute right to see and thereby rebut information in a presentence report. See United States v. Frontero, 5 Cir. 1971, 452 F.2d 406; United States v. Bakewell, 5 Cir. 1970, 430 F.2d 721; United States v. Dockery, 1971, 145 U.S.App.D.C. 9, 447 F.2d 1178; United States v. Crutcher, 2 Cir. 1968, 405 F.2d 239; Thompson v. United States, 10 Cir. 1967, 381 F.2d 664. But see United States v. Picard, 1 Cir. 1972, 464 F.2d 215; United States v. Janiec, 3 Cir. 1972, 464 F.2d 126; Baker v. United States, 4 Cir. 1968, 388 F.2d 931; Verdugo v. United States, 9 Cir. 1968, 402 F.2d 599, 613 (Browning, J., concurring); United States v. Bryant, 1971, 143 U.S.App.D.C. 53, 442 F.2d 775. See generally Lehrich, The Use and Disclosure of Presentence Reports in the United States, 47 F.R.D. 225.⁶ Such assertions do not, however, dispose of this case. While the due process guarantee in Townsend has been judicially limited in order to preserve the confidentiality of the presentence report when and if in the district court's discretion such confidentiality is desirable, and to prevent the sentencing process from turning into a full scale evidentiary-type hearing, it has also been widely recognized that where a sentencing judge explicitly relies on certain information in assessing a sentence, fundamental fairness requires that a defendant be given at least some opportunity to rebut that information.

In United States v. Battaglia, 5 Cir. 1972, 478 F.2d 854, defendant petitioned the district court to modify sentence on the ground that the judge relied on inaccurate information in assessing the sentence. This court vacated the sentence and stated:

"At the time of sentencing, the trial judge stated that he was taking into consideration certain facts which he believed to be true. The defendant says they are untrue. On consideration of the motion, the judge said that he would have imposed the same sentence even if the facts were untrue. Although this may be so, we think it is better to assure the defendant that the alleged untrue facts will not affect his sentence by permitting him a hearing at which he may seek to remove any lingering doubt the court may have had about the true situation. The court should then reconsider the sentence in the light of the true facts as found after hearing."⁷

In United States v. Malcolm, 2 Cir. 1970, 432 F.2d 809, defendant claimed in his § 2255 motion that he was sentenced on the basis of erroneous information and that the sentencing judge erred in refusing to hear certain evidence aimed at mitigating sentence. The Second Circuit remanded for resentencing and stated:

"The result of the procedural irregularity is that the sentence rests on a foundation of confusion, misinformation and ignorance of facts vitally material to mitigation. If justice is to be done, a sentencing judge should know all the material facts. The information which was curtailed and precluded here should therefore have been received and considered. Fair administration of justice demands that the sentencing judge will not act on surmise, misinformation and suspicion but will impose sentence with insight and understanding. Harris v. United States, 382 U.S. 162, 166, 86 S.Ct. 352, 15

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