United States v. Ewing, 72-3622.

• Decision Date: 14 June 1973
• Docket Number: No. 72-3622.,72-3622.
• Citation: 480 F.2d 1141
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William Boyd EWING, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

480 F.2d 1141 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. William Boyd EWING, Jr., Defendant-Appellant.

No. 72-3622.

United States Court of Appeals, Fifth Circuit.

June 14, 1973.

Don C. Alexander, Ronald L. Goranson, Dallas, Tex., 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 COLEMAN and DYER, Circuit Judges.

PER CURIAM:

Appellant William Boyd Ewing, Jr., pled guilty to two counts of aiding and abetting the interstate transportation of stolen motor vehicles in violation of 18 U.S.C.A. § 2 and § 2312. He was sentenced to four years imprisonment on count one and three years imprisonment on count two, the sentences to run consecutively. He appeals from the judgment of conviction on the ground that his plea of guilty was tainted by the prosecutor's failure to keep a commitment not to oppose his request for a probated sentence. We vacate the judgment of the district court and remand the case for reconsideration.

Ewing initially pled not guilty to a five count indictment brought against him. At the conclusion of negotiations between his counsel and the government attorney in charge of the prosecution, Ewing changed his plea to guilty to counts one and two of the indictment. Apparently the prosecution had agreed that in exchange for a guilty plea to two counts of the indictment it would dismiss the remaining three counts and would not oppose a probated sentence. At no time has the Government ever disputed the existence of such an understanding.

At a sentencing hearing held on October 27, 1972, the Government fulfilled its promise. The remaining three counts of the indictment were dismissed upon the Government's motion. The defendant requested probation without opposition from the Government, but the sentencing judge refused to grant probation. His judgment was based primarily upon the nature of Ewing's crime, car theft, and by his past record.

Subsequent to the imposition of sentence Ewing filed a motion for the reduction of sentence pursuant to Rule 35 of the Federal Rules of Criminal Procedure. This motion was considered by the district court at a second hearing in which the Government was represented by a different attorney from the one who had represented it at the initial sentencing hearing. During this proceeding the Government attorney, possibly unaware of any understanding with Ewing, argued strongly in opposition to his request for probation. Immediately thereafter the Government's commitment not to oppose probation was brought to the attention of the district court. The court stated, however, that it would not be influenced by recommendations made by the Government and that, in light of the deliberate nature of defendant's crime, probation would not be appropriate. Defendant's motion to reduce sentence was denied.

We...