United States v. Hartford, 73-1704

• Decision Date: 19 March 1974
• Docket Number: No. 73-1704,73-1955.,73-1738,73-1704
• Citation: 489 F.2d 652
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lawrence D. HARTFORD, aka "Larry," Defendant-Appellant, UNITED STATES of America, Plaintiff-Appellee, v. Dale BOWDOIN, Defendant-Appellant, UNITED STATES of America, Plaintiff-Appellee, v. Mike NEWTON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

489 F.2d 652 (1974)

UNITED STATES of America, Plaintiff-Appellee, v. Lawrence D. HARTFORD, aka "Larry," Defendant-Appellant, UNITED STATES of America, Plaintiff-Appellee, v. Dale BOWDOIN, Defendant-Appellant, UNITED STATES of America, Plaintiff-Appellee, v. Mike NEWTON, Defendant-Appellant.

Nos. 73-1704, 73-1738, 73-1955.

United States Court of Appeals, Fifth Circuit.

February 15, 1974.

Rehearing Denied March 19, 1974.

George F. Tubb (court-appointed), Larry G. Turner, Gainesville, Fla., for defendants-appellants in 73-1704 and 73-1955.

William H. Stafford, Jr., U. S. Atty., Robert L. Crongeyer, Jr., Asst. U. S. Atty., Pensacola, Fla., for plaintiff-appellee in all cases.

Lynn M. LoPucki, Gainesville, Fla. (court-appointed), for defendant-appellant in 73-1738.

Before TUTTLE, DYER and MORGAN, Circuit Judges.

Rehearing Denied in No. 73-1704 March 19, 1974.

DYER, Circuit Judge:

In these consolidated appeals from convictions, pursuant to guilty pleas, of violations of federal narcotics statutes,¹ the common issue presented for resolution is the validity of the respective sentences imposed by the district court upon the three appellants. After a careful review of the record in each case, we vacate the sentences imposed on appellants Hartford and Bowdoin and affirm the judgment as to appellant Newton.

These three appeals arise from a similar factual setting. Each appellant was indicted by a grand jury on several charges of violations of the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C.A. § 801 et seq. Subsequently each defendant entered a guilty plea as to one count in the respective multi-count indictments. Hartford, who pleaded guilty to possession of a controlled substance in violation of 21 U.S.C.A. § 844, was sentenced under the Federal Youth Corrections Act, 18 U.S.C.A. § 5010, with a maximum four-year term of confinement, instead of receiving the penalty imposed by the substantive narcotics statute, which provides a maximum punishment of one year imprisonment, a $5,000 fine, or both. He is now in the unusual posture of contending that he should have received no more than the maximum sentence provided by the substantive statute, section 844, rather than the potentially longer, indeterminate sentence under the FYCA. Appellant Bowdoin entered a guilty plea to the charge of unlawful distribution of LSD in violation of 21 U.S.C.A. § 841 and received a five-year sentence, followed by a special parole term of two years, as provided by section 841. Newton, in turn, admitted having unlawfully distributed hashish in violation of section 841, and was likewise sentenced to the maximum incarceration term of five years, with the subsequent two year parole term.

Since we have determined that different dispositions are warranted in these cases, each appellant's particular circumstances will be addressed individually. Nonetheless, certain well-established legal principles, pertinent to each of the instant cases, merit discussion at the outset. It is axiomatic that the broad discretion vested in trial judges in sentencing narrowly circumscribes the role of appellate courts in scrutinizing trial courts' final determinations. This historic deference, premised in great measure on the proximity of the trial judge to the criminal defendant, thus affording the court the opportunity of first hand observations and impressions which together with many other considerations must be weighed in passing sentence, continues unabated and remains uncompromised in any way by the result we reach today. For what we examine is not the severity or duration per se of the sentences meted out by the district court, since it is undisputed that the sanction imposed in each case sub judice was within the statutorily-prescribed maximum. Appellate modification of a statutorily-authorized sentence, however, is an entirely different matter than the careful scrutiny of the judicial process by which the particular punishment was determined. Rather than an unjustified incursion into the province of the sentencing judge, this latter responsibility is, on the contrary, a necessary incident of what has always been appropriate appellate review of criminal cases. See, e. g., Townsend v. Burke, 1948, 334 U.S. 736, 741, 68 S.Ct. 1252, 92 L.Ed. 1690; Williams v. New York, 1949, 337 U.S. 241, 69 S.Ct. 1079, 93 L. Ed. 1337. Accordingly, we need not address the substantial body of precedent prohibiting the substitution of an appellate court's predilections for the broad discretion rightfully reposed in the trial judge, inasmuch as we fully reaffirm that principle. We address instead the common issue raised by these appeals, namely whether the district judge abused his discretion by mechanically imposing the maximum allowable sentence rather than abiding by the judicially approved policy of "individualizing sentences." Williams v. New York, supra, at 248.

United States v. Hartford No. 73-1704

In the course of imposing sentence on Hartford, the trial judge stated that the one-year maximum sentence prescribed by section 844 of Title 21 for possession of a controlled substance was simply insufficient punishment in this case. "You could be sentenced to one year since this is a misdemeanor. I do not feel that time is sufficient." Consequently, the judge sentenced Hartford under the Federal Youth Corrections Act (FYCA), under which a defendant receives an indeterminate sentence not to exceed four years. 18 U.S.C.A. § 5017(c). By so doing, the judge employed the FYCA in a manner repugnant to the ameliorative congressional purpose underlying the statute, namely to allow correctional rehabilitation for youthful offenders, not to mete out retributive punishment. See Frye v. Moran, W.D.Tex.1969, 302 F.Supp. 1291. Moreover, by opining that the legislatively-prescribed maximum penalty for this misdemeanor was insufficient punishment for Hartford, the court acted inconsistently with the authoritative determination by Congress with respect to the appropriateness of particular penalties. As a result, by his dissatisfaction with the congressional regulatory scheme embodied in the Drug Abuse Act, the court fell into grave error by utilizing a salutary sentencing procedure, the FYCA, for punitive purposes clearly at odds with Congress' purpose. See Cunningham v. United States, 5 Cir. 1958, 256 F.2d 467, 471-472.

We therefore conclude that under the circumstances here existing Hartford's sentencing under the FYCA was erroneous. Accordingly, we vacate with instructions to resentence Hartford pursuant to the express provisions of 21 U.S.C.A. § 844.

Vacated with Directions.

United States v. Bowdoin No. 72-1738

Unlike Hartford, Bowdoin, a nineteen year old first offender, was not afforded the benefit of sentencing pursuant to the FYCA. Instead, the district judge accepted Bowdoin's plea to having violated 21 U.S.C.A. § 841 for unlawful distribution of narcotics and thereupon imposed the maximum sentence of five years, with a two-year special parole term. Assuming without deciding that a trial judge is vested with discretion to ignore the FYCA, assuming its applicability, and to mete out the maximum sentence prescribed by Congress, nonetheless, the process by which the judge determines the appropriate sentence must constitute the exercise of judicial discretion demanded in each particular case.

A careful examination of the record in the instant case reveals an abuse of judicial discretion by a clear showing that the judge pursued a rigid policy of imposing the maximum sentence for a particular category of offenses, namely narcotics violations. During the colloquy between the court and Bowdoin's counsel at sentencing, the judge stated: "This is one man that is lucky that he only has a maximum of a five year sentence because if there was any more I would give it to him." Thereafter, when counsel expressed concern over possible inaccuracies in the pre-sentence report potentially enhancing the sentence imposed on Bowdoin, the court responded: "I am telling you right now it wouldn't make any difference if there were fifty other charges. If this man pleaded guilty to distributing LSD he would get the maximum penalty which he got." These remarks, as well as others in the record, reflect a rigid sentencing policy based solely on the crime with which the defendant is charged. Such a policy is under no reasonable conception an exercise of judicial discretion. As the Sixth Circuit has stated, "a trial court which fashions an inflexible practice in sentencing contradicts the judicially approved policy in favor of `individualizing sentences.'" United States v. Daniels, 6 Cir. 1971, 446 F.2d 967, 971, quoting Williams v. New York, 1949, 337 U.S. 241, 248, 69 S.Ct. 1079, 93 L.Ed. 1337. See also United States v. Baker, 2 Cir. 1973, 487 F.2d 360, where the court said: "We reaffirm our disapproval of statements by a trial judge reflecting a fixed sentencing policy based on the category of crime rather than on the individualized record of the defendant"; and Woosley v. United States, 8 Cir. 1973, 478 F.2d 139 where it is stated: "A mechanical approach to sentencing . . . ignores the Supreme Court's decree that sentencing be tailored to fit the offender." Not only is a mechanical sentencing formula an abdication of judicial responsibility, United States v. McCoy, 1970, 139 U.S.App.D.C. 60, 429 F.2d 739, but it also runs counter to the considered judgment of Congress in prescribing a non-mandatory maximum sentence. Section 841, under which Bowdoin was sentenced, simply provides a maximum term of confinement for "not more than five years," and thus "is an express legislative sanction . . . of meting out sentences substantially less than five years in prison . . . where there are appropriate mitigating circumstances." United States v. Daniels, supra, 446 F.2d at 971-972. From this express legislative authorization there is clearly evidenced an "implied legislative will to...