United States v. Weiner, 27734 Summary Calendar.
| Decision Date | 22 October 1969 |
| Docket Number | No. 27734 Summary Calendar.,27734 Summary Calendar. |
| Citation | 418 F.2d 849 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Jerome R. WEINER, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Frank S. Wright, Emmett Colvin, Jr., Dallas, Tex. (Lead Counsel), for appellant.
Eldon B. Mahon, U. S. Atty., Alex H. McGlinchey, Asst. U. S. Atty., Fort Worth, Tex., for appellee.
Before THORNBERRY, MORGAN and CARSWELL, Circuit Judges.
Pursuant to Rule 18 of the rules of this Court, we have concluded on the merits that this case is of such character as not to justify oral argument and have directed the Clerk to place the case on the Summary Calendar and to notify the parties in writing. See Murphy v. Houma Well Service, 409 F.2d 804, Part I (5th Cir. 1969).
This case arises from a judgment of conviction on one count for violation of Title 18, United States Code, Section 1005, involving false entries in bank records. Appellant was sentenced to imprisonment for a period of five years with confinement for a period of six months, the execution of the remainder of the sentence of imprisonment was suspended and the appellant was placed on probation for the remaining four and one-half year period.
Appellant raises two assignments of error in this appeal, neither of which require reversal. First, appellant contends that the district judge erred in assessing punishment as set forth above because of his erroneous assumption that he had no authority to order restitution as a term of probation, as provided by 18 U.S.C. § 3651. This contention is without merit, for it is nowhere proven that the trial judge was not fully aware of the provisions regarding restitution. Indeed, the trial record shows that when one of the attorneys in this case recommended the granting of probation, the judge made the following inquiry: "Would they recommend probation without restitution?" And again the trial judge stated that "if they employed you to go over here and make this statement, they want to get their money back."
The fact that the district judge questioned the propriety of granting an order providing for both probation and restitution within a period of time does not sustain appellant's assignment of error. It is established that the exercise by the sentencing court of its discretion cannot be questioned on appeal, except when arbitrary or capricious action amounting to a gross abuse of discretion is involved. Dodd v. United States, 213 F.2d 854 (10th Cir. 1954). The appellant has not shown such action in the present case. Only when it is shown that the trial judge relied upon information which was in fact not true is error committed....
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U.S. v. Miller
...in these circumstances that a challenge to a sentence as excessive must be made under Rule 35 to the trial court. United States v. Weiner, 418 F.2d 849, 851 (5 Cir. 1969); Robbins v. United States, 345 F.2d 930 (9 Cir. 1965). On the other hand, sentences for contempt under 18 U.S.C. § 401(3......
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...States v. King, 420 F.2d 946, 947 (4th Cir.), cert. denied, 397 U.S. 1017, 90 S.Ct. 1253, 25 L.Ed.2d 432 (1970); United States v. Weiner, 418 F.2d 849, 851 (5th Cir. 1969); United States v. Latimer, 415 F.2d 1288, 1290 (6th Cir. 1969); United States v. Holder, 412 F.2d 212, 214-215 (2d Cir.......
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...States v. Bishop, supra; United States v. Donahoe, 10 Cir. 1972, 458 F.2d 237, 240 (Holloway, J., dissenting). Cf. United States v. Weiner, 5 Cir. 1969, 418 F.2d 849; United States v. Metz, 3 Cir. 1972, 470 F.2d 1140. As with disclosure of presentence reports, the district court possesses w......
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United States v. Bristol, 72-2815. Summary Calendar.
...941. See United States v. Moore, 5 Cir. 1970, 427 F.2d 38, cert. denied, 400 U.S. 965, 91 S.Ct. 367, 27 L. Ed.2d 384; United States v. Weiner, 5 Cir. 1969, 418 F.2d 849. Consequently, we affirm the sentence imposed by the district Affirmed. * Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v.......