United States v. Frontero, 71-2055 Summary Calendar.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Citation452 F.2d 406
Docket NumberNo. 71-2055 Summary Calendar.,71-2055 Summary Calendar.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Richard J. FRONTERO et al., Defendants-Appellants.
Decision Date30 November 1971


Rosner & Rosner, Edmund A. Rosner, New York City, for Kelly; Nancy Rosner, New York City, of counsel.

John J. Meglio, New York City, for Frontero.

Frank Ragano, Tampa, Fla., for Lagana.

John L. Briggs, U. S. Atty., Rudy Hernandez, Asst. U. S. Atty., Jacksonville, Fla., for plaintiff-appellee.

Before WISDOM, COLEMAN, and SIMPSON, Circuit Judges.

WISDOM, Circuit Judge:

Frontero, Lagana, and Kelly appeal from judgments of conviction based on guilty pleas. Twenty-four co-defendants, including these three, were indicted on thirty-one counts of substantive violations of 18 U.S.C. §§ 2312, 2313, and 23141 and conspiracy to violate these statutes, 18 U.S.C. § 371. Each appeal presents different problems and will be dealt with separately.

I. Frontero

Frontero was convicted of (1) one count of conspiracy to transport, receive, conceal, and sell stolen motor vehicles in violation of 18 U.S.C. § 371, (2) one count of transporting a stolen motor vehicle in interstate commerce in violation of 18 U.S.C. § 2312, and (3) another count of transporting a motor vehicle in interstate commerce in violation of 18 U.S.C. § 2312. Frontero pleaded guilty to these charges, and his conviction was based on the guilty plea. He was sentenced to five years on the first charge with eligibility for parole under 18 U.S. C. § 4208(a) (2), five years on the second charge to run concurrently with the first sentence, and five years on the third charge to run consecutively.

Frontero argues that this Court should review the sentence imposed by the district court and modify that sentence because it is harsh and excessive. See Weigel, Appellate Revision of Sentences: To make the Punishment Fit the Crime, 20 Stan.L.Rev. 405 (1968); Kaufman, Appellate Review of Sentences, 32 F.R.D. 249 (1962); Sobeloff, Appellate Review of Sentences, 32 F.R.D. 249 (1962); United States v. Wiley, 7 Cir. 1959, 267 F.2d 453. Frontero suggests a possible approach to appellate review of sentencing through a new interpretation of 28 U.S.C. § 2106 empowering federal appellate courts to "modify" a judgment. This Court, however, has consistently held that "in absence of other constitutional provision or of statute, this Court has no power to review the length of a sentence within the limits permitted by statute". Rogers v. United States, 5 Cir. 1962, 304 F.2d 520; accord United States v. White, 5 Cir. 1971, 447 F.2d 493; Rodriquez v. United States, 5 Cir. 1968, 394 F.2d 825.

We need not break new ground in this case, for, even assuming this Court has the power to modify a sentence, this is not a situation for exercise of that power. The sentence imposed by the district court was within statutory limits. See Rogers v. United States, supra; Sutton v. United States, 5 Cir. 1959, 266 F.2d 529; Hill v. United States, 9 Cir. 1962, 306 F.2d 245. The only colorable argument advanced by Frontero for modification of his sentence is that a co-defendant, North, received the same sentence as Frontero despite the fact that North participated in the conspiracy for over two years and was indicted on twenty-four counts while Frontero participated for only nine months and was indicted on only five counts. This Court, however, has held that differential sentencing, here, the same sentence for an allegedly lesser degree of guilt, is not a ground for modification of a sentence. Rodriquez v. United States, supra.

Frontero also presents this Court with statements as to his unblemished character and background and likelihood of rehabilitation. This evidence was before the district court. We see no abuse in the court's exercise of its sentencing discretion. See Zaffarano v. Blackwell, 5 Cir. 1967, 383 F.2d 719. Williams v. United States, 5 Cir. 1951, 192 F.2d 39. In short, even if this Court were willing to find the power to review and modify a sentence lawfully imposed, this case does not present a situation calling for the exercise of that power.

Frontero also urges reversal because the district judge failed to inform him of derogatory material contained in the pre-sentence report and afford him the opportunity to refute or explain that material. Immediately prior to sentencing the district judge commented:

Let me say that, as you know, a presentence investigation has been conducted in connection with this case. His family background to the extent that you have described it is as related in the presentence investigation. Along the same lines, there is some detail regarding his relationship with the Defendant Kathleen Coughlin over a period of time, which you should know I am aware of, and it also has been brought to my attention through presentence investigation that this particular Defendant was instrumental in involving the Defendant Kelly in particular in this organized operation.

The disclosure of the contents of presentence reports is governed by Rule 32 of the Federal Rules of Criminal Procedure. This rule provides in pertinent part:

The court before imposing sentence may disclose to the defendant or his counsel all or part of the material contained in the report of the presentence investigation and afford an opportunity to the defendant or his counsel to comment thereon.

(emphasis added.) F.R.Crim.Pro. 32(c) (2). The Supreme Court has noted that Rule 32 "does not make the presentence report available to the defendant as a matter of right", Gregg v. United States, 1969, 394 U.S. 489, 89 S.Ct. 1134, 22 L.Ed.2d 442, and this Court has held the disclosure to be discretionary. United States v. Thomas, 5 Cir. 1970, 435 F.2d 1303; United States v. Rubin, 5 Cir. 1970, 433 F.2d 442; United States v. Warren, 5 Cir. 1970, 432 F.2d 772; United States v. Bakewell, 5 Cir. 1970, 430 F.2d 721.2

The Court affirms Frontero's conviction without modifying his sentence.

II. Lagana

Lagana pleaded guilty to one count of violating 18 U.S.C. § 371 by conspiring to transport, receive and conceal, and sell stolen motor vehicles. He was sentenced to three years imprisonment. On appeal, Lagana complains that his guilty plea was induced by the trial judge's promise of probation, that he was not put on probation, and that the guilty plea therefore was invalid. Finding no merit to the contention, we affirm.

Lagana's attorney, in his brief before this Court, describes a meeting with the trial judge and the United States Attorney to discuss Lagana's case. According to the brief, the trial judge indicated at this meeting that, if the representations as to Lagana's lack of a prior criminal record were substantiated by the presentence investigation, he would probably place Lagana on probation if he pleaded guilty. Lagana's attorney reported this conference to the defendant. Although the pre-sentence report substantiated counsel's earlier representations to the district judge, the trial judge, because of Lagana's prior associations with one of the co-defendants, sentenced Lagana to three years imprisonment. After the court denied Lagana's motion to withdraw the plea of guilty and set aside the judgment and sentence, this appeal followed.

To be valid, a guilty plea must be knowing, intelligent, and voluntary.

The plea is more than an admission of past conduct; it is the defendant\'s consent that judgment of conviction may be entered without a trial—a waiver of his right to trial before a jury or a judge. Waivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.

Brady v. United States, 1970, 397 U.S. 742, 748, 90 S.Ct. 1463, 1469, 25 L.Ed.2d 747. See Boykin v. Alabama, 1969, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274. Promises or assurances of a particular sentence may be "inducements" which destroy the voluntariness of the plea and invalidate it. See Maner v. United States, 5 Cir. 1970, 429 F.2d 578. Inherent in the "plea bargaining" process is the possibility of a misunderstanding on the part of the participants as to possible consequences of a guilty plea. The defendant is often told by his attorney that a "promise" of a certain sentence has been made in exchange for his plea of guilty when, in fact, the "promise" has come from one, such as the prosecutor, who is in no position to make promises concerning sentencing or has been made by the trial judge in terms of "probably", "maybe", or "I am inclined toward". These "promises" are occasionally communicated to defendants as firm deals. When the defendant is induced to plead guilty on the basis of his misinterpretation of the "promise", the plea may, in certain cases, be invalid because it was based on incomprehension or misinterpretation.

Our review of the validity of the plea is made extremely difficult by the procedure followed in entering a guilty plea. The defendant, believing correctly or incorrectly that he will receive a "bargain" in exchange for his guilty plea, is instructed to, and does, claim total understanding of the charges against him and affirm the total absence of any bargain when questioned by the trial judge. This scenario will sometimes end in a sentence which comports with the defendant's expectations or in, what the defendant feels is, a "double-cross", when the trial judge exercises his discretion and pronounces a sentence more severe than the prosecutor "promised" or the judge supposedly had committed himself to. When this occurs, the defendant may (and we emphasize "may") have a claim of an invalid plea based on incomprehension, misinterpretation, or inducement. The defendant, however, must have reasonable grounds for assuming that the bargain would be consummated. He cannot, in the ordinary case, rely on the promise of the prosecutor who has no authority to make...

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