UNITED STATES of America v. Cheryl GORDON, Appellant.
No. 91-3605.
United States Court of Appeals, Third Circuit.
April 13, 1992.
As Amended April 30, 1992.
961 F.2d 426
On appeal, Brentley raises a matter of first impression regarding his right to a complete written transcript of his videotaped trial proceedings. In our consideration of this ground of the appeal, we have reviewed the videotape of the trial. We find that Brentley‘s criminal trial was short and uncomplicated. We do not find any portion of the proceedings that is not adequately recorded on the videotape for easy comprehension. Nor do we find any issue presented to be unduly complex such that it might require transcription for better understanding.
Moreover, we find that Brentley‘s motion for a written transcript gives no reasons why a transcript is necessary except for those reasons cited above. While the motion states that Brentley does not have a VCR or the means of reviewing the videotape, it provides no mention of whether or not a VCR was or could have been made available at the institution where Brentley was incarcerated. Moreover, Brentley‘s counsel gives no explanation for why he could not review the videotape and then discuss it with Brentley. Indeed, our review of the videotape indicates that it would be relatively simple for an attorney to make notes of the proceedings for later discussion with his client. We note also that while our rules permit the defendant to receive up to fifty pages of typed transcript, no portion of the permitted 50 pages has been included in the Appendix on the appeal. We find this to be a further indication that the defendant did not lack the necessary material, either video or written, to participate effectively in the prosecution of the sentencing, the motion for ineffective assistance of counsel, or this appeal.
An indigent defendant is of course entitled to a free trial transcript on appeal. Draper v. Washington, 372 U.S. 487, 83 S.Ct. 774, 9 L.Ed.2d 899 (1963). However,
[a]lternative methods of reporting trial proceedings are permissible if they place before the appellate court an equivalent report of the events at trial from which the appellant‘s contentions arise.
Id. at 495, 83 S.Ct. at 779. Certainly, a videotape of the complete proceedings may be such an “alternative method.” Under the circumstances of this case, we find that the free videotape, which defendant was provided, constitutes an “equivalent report of the events at trial” and that the trial judge did not abuse his discretion in refusing to order that a free, written transcript be prepared for use in connection with the preparation for sentencing, the motion for a new trial, or this appeal. Keeping in mind that Brentley was represented by counsel throughout these proceedings, we find that he has not shown either that he was unable to prepare adequate post-trial motions or that he was precluded from raising any trial error on appeal by virtue of the district court‘s decision to deny his request for a free, written transcript.
For the foregoing reasons, we will affirm Brentley‘s conviction and the judgment of sentence.
Mary M. McDonough (argued), Asst. U.S. Atty., Wilmington, Del., for appellee.
OPINION OF THE COURT
COWEN, Circuit Judge.
Under
I.
Cheryl Gordon pled guilty in May 1989 to violating
In June 1990, the district court found Gordon guilty of violating the terms of probation, but continued probation on the condition that Gordon complete an in-house drug rehabilitation program. Although Gordon completed the drug program, she failed to report to the probation office for required urinalysis on eighteen occasions. Two of the urine specimens which she did submit tested positive for cocaine metabolite. In August 1991, the district court revoked Gordon‘s probation and resentenced her to one year imprisonment, noting:
I‘m going to sentence you for your violation for being in possession of a controlled substance and I‘m going to revoke the sentence of probation that was imposed by Judge Roth and sentence you to a period not less than one-third of your original sentence, which was three years. In effect, I‘m going to imprison you for one year, basically to save your life.
App. at 62.
The district court‘s resentencing decision appears to be based on
If the defendant violates a condition of probation at any time prior to the expiration or termination of the term of probation, the court may, after a hearing pursuant to Rule 32.1 of the Federal Rules of Criminal Procedure, and after considering the factors set forth in section 3553(a) to the extent that they are applicable—
(1) continue him on probation, with or without extending the term or modifying or enlarging the conditions; or
(2) revoke the sentence of probation and impose any other sentence that was available under subchapter A at the time of the initial sentencing.
Notwithstanding any other provision of this section, if a defendant is found by the court to be in possession of a controlled substance, thereby violating the condition imposed by section 3563(a)(3), the court shall revoke the sentence of probation and sentence the defendant to not less than one-third of the original sentence.
(emphasis added). The district court interpreted the term “original sentence” as referring to the three years probation imposed for the initial offense, rather than the period of incarceration originally available, which was zero to four months imprisonment. Thus, the court reasoned that one-third of three years probation was one
II.
A.
At the outset, Gordon contends that her drug use should not have been considered by the district court at the August 1991 hearing, since the probation violation petition did not formally charge her with use or possession of a controlled substance. During the hearing, the district court prohibited the government from amending the petition to include such a charge. However, the court allowed the two positive urine tests and Gordon‘s admitted drug use to “be taken as evidence” of a probation violation, although the court precluded consideration of the drug use itself. App. at 18. We believe that the district court committed no error as to this issue.
This court has stated that drug use indicated by urinalysis is only circumstantial evidence of drug possession. United States v. Blackston, 940 F.2d 877, 886 (3d Cir.), cert. denied, U.S. —, 112 S.Ct. 611, 116 L.Ed.2d 634 (1991). It is worth noting that Gordon did not challenge the positive results of the urinalysis. In fact, she admitted at the hearing that she had used drugs while on probation, constituting a direct violation of the conditions of her probation. Moreover,
Our review of the record also convinces us that Gordon had adequate pre-hearing notice that her drug possession would be considered by the district court. The written probation violation petition satisfied the notice requirement of
Therefore, we hold that the district court did not err in considering Gordon‘s drug possession when it revoked her probation and resentenced her to prison. Having decided that the drug possession could be considered in resentencing, we must now turn to the meaning of the term “original sentence” in
B.
In arriving at the one year sentence, the district court relied on the final paragraph of
As we explained in United States v. Boyd, 961 F.2d 434 (3d Cir.1992), there are three different standards for imposing a sentence for a probation violation. The first involves
In the case presently before this court, we are concerned with the apparent tension between
The 1988 drug amendment was recently interpreted by the Court of Appeals for the Ninth Circuit in United States v. Corpuz, 953 F.2d 526 (9th Cir.1992). In Corpuz, the defendant pled guilty to counterfeiting, a crime for which he could have received one to seven months imprisonment. Instead, the defendant was sentenced to three years probation. Corpuz was subsequently arrested for possession of methamphetamine and, following the revocation of his probation, resentenced to one year in prison. Relying on the 1988 drug amendment, the district court reasoned that one-third of three years probation was one year imprisonment. The Ninth Circuit affirmed.4
Were we to adopt the Ninth Circuit‘s interpretation of the 1988 drug amendment, we would find that Gordon was properly resentenced to one year imprisonment, since one-third of three years probation is one year imprisonment. This
Corpuz finds significance in the phrase “[n]otwithstanding any other provision of this section” which begins the 1988 drug amendment. The Ninth Circuit noted that “[t]his prefatory qualifier indicates that the added provision was intended to take precedence over the general language of subsection (a)(2) in cases where the probationer violates probation by possessing a controlled substance.” Id. at 530 (emphasis added). We cannot agree that one provision takes precedence over another provision, since it is a fundamental rule of statutory construction that all parts of a statute must be read together. “Only a clear repugnancy between the old law and the new results in the former giving way and then only pro tanto to the extent of the repugnancy.” Georgia v. Pennsylvania R.R. Co., 324 U.S. 439, 457, 65 S.Ct. 716, 726, 89 L.Ed. 1051 (1945); see also Morton v. Mancari, 417 U.S. 535, 550, 94 S.Ct. 2474, 2482, 41 L.Ed.2d 290 (1974) (“In the absence of some affirmative showing of an intention to repeal, the only permissible justification for a repeal by implication is when the earlier and later statutes are irreconcilable.“). Courts should attempt to reconcile two seemingly conflicting statutory provisions whenever possible, instead of allowing one provision effectively to nullify the other provision. Thus, we conclude that a better reading of the “notwithstanding” clause is that it establishes a “floor” below which the district court cannot resentence despite
Congressional intent also can be discerned by looking to other parts of the 1988 Anti-Drug Abuse Act. The act refers to “one-third of the original sentence” for probation violations, yet authorizes courts to revoke supervised release for drug possession and “require the defendant to serve in prison not less than one-third of the term of supervised release.”
In addition to the plain meaning of the statutory language, we find Corpuz to be at odds with both experience and reason, since the decision is premised on the fungibility of probation and incarceration. However, probation and incarceration are like the proverbial apples and oranges. Although both are forms of punishment, their characteristics and objectives are different. These differences should be apparent to judges, as we are sure the practical realities of serving prison time rather than probation are apparent to criminal defendants. For both judges and defendants, there is a genuine distinction with a difference. Whatever subtle jurisprudential similarities exist between the two forms of punishment are no doubt irrelevant to most criminal defendants.
Although the primary purpose of incarceration is punishment, the Supreme Court has long held that probation “was designed to provide a period of grace in order to aid the rehabilitation of a penitent offender; to take advantage of an opportunity for reformation which actual service of the suspended sentence might make less probable.” Burns v. United States, 287 U.S. 216, 220, 53 S.Ct. 154, 155, 77 L.Ed. 266 (1932); see also Frad v. Kelly, 302 U.S. 312, 318, 58 S.Ct. 188, 192, 82 L.Ed. 282 (1937) (describing probation as “a system of tutelage“); Berman v. United States, 302 U.S. 211, 213, 58 S.Ct. 164, 166, 82 L.Ed. 204 (1937) (probation is “concerned with rehabilitation, not with the determination of guilt” and “comes as an act of grace to one convicted of a crime“) (citation omitted). More recently, the Court described probation as a form of “conditional liberty.” Black v. Romano, 471 U.S. 606, 611, 105 S.Ct. 2254, 2257, 85 L.Ed.2d 636 (1985); see also United States v. Beech-Nut Nutrition Corp., 925 F.2d 604, 608 (2d Cir.1991) (“Probation does not confer upon a convicted defendant the absolute liberty which ordinary citizens enjoy. Neither is a person on probation a prisoner absent the walls.“). Similarly, this court has found that the use of probation as an alternative to incarceration dates back to the year 1681. United States v. Stine, 646 F.2d 839, 841 (3d Cir.1981); see also id. at 841-42 (first state probation statute enacted in 1878; federal probation statute enacted in 1925). To say that the nature of probation is well-settled would be an understatement.
In Corpuz, the Ninth Circuit acknowledged this traditional view of probation as rehabilitation rather than punishment, but noted that the Sentencing Reform Act of 1984, Pub.L. No. 98-473, ch. II, § 212, 98 Stat. 1987, 1992-95 (1984), transformed probation into a type of sentence like imprisonment.6 The court noted: “Penologically and semantically, probation is a sentence under the Sentencing Reform Act. It is no longer an alternative to sentencing; it is a sentence in and of itself.” Corpuz, 953 F.2d at 529. Although the statutory provisions enacted as part of the 1984 act refer to the “sentence of probation,”
Even if the phrase “sentence of probation” in
III.
In conclusion, we believe the proper way to resentence a defendant following a probation violation for possession of drugs is to revoke probation and impose a sentence not less than one-third of the maximum sentence for the original offense. Because the district court imposed a sentence beyond the permissible one and one-third month to four month range, we will vacate the sentence and remand for resentencing consistent with this opinion.
GREENBERG, Circuit Judge, concurring.
I concur in the result reached by the majority but do not join in the opinion for the following reasons. The petition charging Gordon with violation of probation was predicated upon her failure to report to the probation office as directed and her failure to participate in urinalysis testing. The formal charges were never broadened to include drug possession, for as the majority indicates, at 429:
At the outset, Gordon contends that her drug use should not have been considered by the district court at the August 1991 hearing, since the probation violation petition did not formally charge her with use or possession of a controlled substance. During the hearing, the district court prohibited the government from amending the petition to include such a charge. However, the court allowed the two positive urine tests and Gordon‘s admitted drug use to ‘be taken as evidence’ of a probation violation, although the court precluded consideration of the drug use itself.
It seems to me that, in view of
Notwithstanding any other provision of this section, if a defendant is found by the court to be in possession of a controlled substance, thereby violating the condition imposed by section 3563(a)(3), the court shall revoke the sentence of probation and sentence the defendant to not less than one-third of the original sentence.
While I do not suggest that a defendant‘s drug use or possession cannot be considered at a hearing for a violation of probation as bearing on the appropriate disposition, I would hold that a defendant to be subject to the mandatory penalty in the proviso must be charged with a substance possession violation. That, of course, did not happen here.
If the proviso is not considered, then the resentencing would have been subject to
In these circumstances I see no need to consider the meaning of the proviso, and therefore I do not join in the majority opinion with respect to its criticism of United States v. Corpuz, 953 F.2d 526 (9th Cir.1992). I do point out, however, that unless the reference to “one-third of the original sentence” in the proviso to
UNITED STATES of America v. Jonathan BOYD and Robert Keith Powell, Jonathan L. Boyd, Appellant.
No. 91-3597.
United States Court of Appeals, Third Circuit.
Argued Feb. 10, 1992. Decided April 13, 1992.
Notes
She believes that she is dying of cancer.... And a large part of her emotional and mental problem is trying to hide that from herself, is trying to get away from that. The drugs are largely a way to not only keep that out of her mind but also to create another problem that can be dealt with and [that] people will help her deal with. A year in prison she may not survive. App. at 64-65.