United States v. Harbolt, 71-2660 Summary Calendar.

• Decision Date: 02 March 1972
• Docket Number: No. 71-2660 Summary Calendar.,71-2660 Summary Calendar.
• Citation: 455 F.2d 970
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Don Victor HARBOLT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

455 F.2d 970 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Don Victor HARBOLT, Defendant-Appellant.

No. 71-2660 Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

March 2, 1972.

Rodney D. Moore, Dallas, Tex. (Court appointed), for defendant-appellant.

Eldon B. Mahon, U. S. Atty., Charles D. Cabaniss, Cecil Emerson, Asst. U. S. Attys., Dallas, Tex., for plaintiff-appellee.

Before BELL, DYER and CLARK, Circuit Judges.

PER CURIAM:

This is an appeal from the orders of the district court denying Harbolt's motions for reduction and modification of sentences. He complains that the district court abused its discretion by taking action without first securing updated information concerning him, without holding a formal hearing on the motions, and by not resentencing him under 18 U.S.C.A. 4208(b) so that a study could have been made of him under 18 U.S.C. A. 4208(c). We are utterly unimpressed with these contentions and affirm.

Harbolt, a federal prisoner, escaped from the Federal Correctional Institution, Seagoville, Texas, and was apprehended about two hours later by the Kleberg, Texas, police in the vicinity of the institution.

On June 2, 1971, Harbolt entered a plea of guilty to a violation of 18 U.S.C. A. § 751 and requested that his sentencing be expedited. The district court obliged, and on June 7, 1971, sentenced Harbolt to an indeterminate term of three years to run consecutively to the sentence then being served by him. Harbolt's codefendant, Connally, also an escapee, was sentenced to ninety days to run consecutively to the sentence he was then serving. Subsequently Harbolt's post-sentencing motions were denied.

Harbolt concedes, as he must, that in considering a motion for reduction or modification of a lawful sentence under Rule 35, Fed.R.Crim.P. the district court has broad discretion. Sullivan v. United States, 5 Cir. 1963, 317 F.2d 101, 1963, 375 U.S. 854, 84 S.Ct. 114, 11 L.Ed.2d 81; Lott v. United States, 5 Cir. 1962, 309 F.2d 115, cert. denied, 1963, 371 U. S. 950, 83 S.Ct. 504, 9 L.Ed.2d 498. Nevertheless, he argues that the district court acted arbitrarily and capriciously in failing to obtain complete updated information from six correctional officials, the names of whom he had submitted, concerning his personal history and status of rehabilitation. He further insists that a report would have disclosed that he did not devise the plan of escape, did not use force in making the escape, and was captured without resistance within a few hours and within a few miles of the institution. He also suggests that the report should have contained an explanation for the disparity between his sentence of three years indeterminate and the ninety-day sentence of his co-defendant.

The district court expedited the time of sentencing at Harbolt's request. At that time it was made known to the court that Harbolt had state convictions for theft and for...