507 F.2d 826 | 7th Cir. | 1974
Lead Opinion
Defendant-appellant David D. Johnson pleaded guilty on December 6, 1972, to both counts of a two-count indictment. The indictment charged in Count I that on November 18, 1971, Johnson violated Title 26, U.S.C. § 5861(d), by having in his possession a sawed-off shotgun which was not properly registered. Count II charged Johnson with possession of a different unregistered weapon on January 7, 1972, also in violation of Title 26, U.S.C. § 5861(d). On appeal, the defendant-appellant raises essentially three issues. We affirm.
The first question presented by this appeal is whether the trial judge followed the procedures mandated by Rule 11, Fed.R.Crim.P. when he accepted Johnson’s guilty pleas.
I.
Defendant-appellant argues that the district court totally failed to explain the elements of the offense of knowingly and unlawfully possessing an unregistered sawed-off shotgun as set forth in Count I of the indictment. As a result, it is argued that the defendant-appellant did not understand the charge against him and that the district court failed to personally inquire whether the defendant-appellant understood the nature of the charge.
Rule 11 expressly directs the district judge to make a personal inquiry to determine whether a defendant who pleads guilty understands the nature of the charge against him and to determine whether he is aware of the consequences of his plea. McCarthy v. United States, 394 U.S. 459, 464, 89 S.Ct. 1166, 1170, 22 L.Ed.2d 418 (1969). Rule 11 also requires that the district judge satisfy himself that there is a factual basis for the plea. The judge must decide that the conduct which the defendant admits constitutes the offense charged in the indictment. McCarthy v. United States, Id. at 467, 89 S.Ct. at 1171. The character of the defendant’s understanding relates to the question of whether the plea was entered voluntarily while the requirement that the court be satisfied that there is a factual basis for the plea entered relates to the question of the guilt or innocence of the defendant. Arias v. United States, 484 F.2d 577, 579 (7th Cir. 1973). In this direct appeal we are concerned with both of these Rule 11 Requirements.
The transcript reflects that a clear and complete explanation of both charges in the indictment was made to the defendant-appellant and that he fully understood the essence of the indictment. In addition, the transcript reveals that the court by personal interrogation of the defendant-appellant did elicit from him a factual basis to support the guilty plea. The court first explained the indictment to the defendant-appellant who indicated that he understood it. The court then determined that the guns in question were not registered. The court next inquired of defendant-appellant whether he was in possession of the guns on the dates in question. The defendant implied that he had been in possession of the one gun charged in Count I but that he did not have actual possession of the gun involved in Count II at the time of his arrest.
II.
The second issue presented is whether the district court erred in receiving testimony, after the plea was entered but before sentencing, relating to a crime with which the defendant had been charged in state court and to which he intended to plead not guilty.
After the plea of guilty had been entered and a presentence report had been prepared, a hearing was held for disposition on January 16, 17 and 19, 1973. Before sentencing, the court was informed that the defendant had been charged with an armed robbery that had occurred shortly before defendant-appellant’s arrest on November 18, 1972, for the violation charged in Count I of the federal indictment. The defendant-appellant had been identified in a lineup the next day as a participant in that armed robbery. The court decided that before disposition of the defendant-appellant it would be necessary to learn about the circumstances surrounding the robbery in order to determine the reason why the defendant-appellant had been in possession of the sawed-off shotgun.
It is an accepted principle that a federal trial judge has wide discretion in determining what sentence to impose on a convicted person. “It is also true that before making that determination, a judge may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may consider, or the sources from which it may come.” United States v. Tucker, 404 U.S. 443, 446, 92 S.Ct. 589, 591, 30 L.Ed.2d 592 (1972). See also, United States v. Trigg, 392 F.2d 860 (7th Cir. 1968), cert. denied, 391 U.S. 961, 88 S.Ct. 1863, 20 L.Ed.2d 874. It has been held that it is proper for the sentencing judge to consider evidence of other crimes for which appellant was neither tried nor convicted when determining the sentence to impose. See United States v. Cifarelli, 401 F.2d 512, 514 (2nd Cir. 1968), cert. denied, 393 U.S. 987, 89 S.Ct. 465, 21 L.Ed.2d 448; United States v. Doyle, 348 F.2d 715, 721 (2nd Cir. 1965), cert. denied, 382 U.S. 843, 86 S.Ct. 89, 15 L.Ed.2d 84. As Judge Friendly stated for the court in United States v. Doyle, supra at 721:
The aim of the sentencing court is to acquire a thorough acquaintance with the character and history of the man before it. Its synopsis should include the unfavorable, as well as the favorable, data, and few things could be so relevant as other criminal activity of the defendant, particularly activity closely related to the crime at hand. (Emphasis added).
Judge Friendly went on to point out that nothing warranted a distinction between considering the persons’ past criminal record or crimes not passed on by a court. Id. at 721.
It is undisputed that the sentencing function is a highly individualized one. The task of the sentencing judge is to determine the type and extent of punishment appropriate for a particular defendant after the issue of guilt has been determined. Williams v. New York, 337 U.S. 241, 245, 69 S.Ct. 1079, 1083, 93 L.Ed. 1337, rehearing denied, 337 U.S. 961, 69 S.Ct. 1529, 93 L.Ed. 1760 (1949).
It is clear that the trial court in this case could permissibly inquire into the circumstances surrounding the
III.
The final issue presented is whether the sentence imposed on the defendant was cruel and unusual in violation of the Eighth Amendment. The defendant-appellant was sentenced to imprisonment for a period of ten years on each count, the sentences to run concurrently. Title 26, U.S.C.A. § 5871, provides for a maximum sentence of ten years for one convicted of a violation of 26 U.S.C.A. § 5861(d). The proposition that a sentence within the statutory maximum provided by Congress is only subject to review on appeal for manifest
The judgment is affirmed.
. A defendant may plead not guilty, guilty or, with the consent of the court, nolo contend-ere. The court may refuse to accept a plea
. The defendant-appellant never affirmatively admitted possession of the gun charged in Count I of the indictment but his answer implied that he had such possession:
The Court: Is that a fact that you did have in your possession these guns on these dates in question?
The Defendant: The second one, I was not —-was not in my possession when I was arrested.
The Court: But you knew where it was and it was available to you, is that right?
The Defendant: Yes, it was available, but, you see, they arrested my mother and I admitted that the shotgun was mine.
The Court: But it was a gun that you had control over, in effect, is that right?
The Defendant: Yes, I had it in my home.
Concurrence in Part
(concurring in part and dissenting in part).
In my opinion the trial judge erred in receiving testimony relating to the armed robbery charge and, despite his avowal that he was not considering the guilt or innocence of the defendant with respect to the armed robbery, the testimony nonetheless could only have influenced his judgment in fashioning the ten year prison sentence pronounced against the defendant.
Section 201(d) of the National Firearms Act, under which the defendant was indicted, provides “It shall be unlawful for any person . . . (d) to receive or possess a firearm which is not registered to him in the National Firearms and Transfer Record.” The offense is limited to receipt or possession of an unregistered firearm. The statute is intended to regulate firearms and is not concerned with their use. There is a separate statutory provision relating to the use of a firearm to commit a felony. 18 U.S.C. § 924(c).
The record is clear that the trial judge wanted to hear evidence with respect to whether the defendant had used the gun in the armed robbery although he did say he would not take into consideration whether the defendant might be guilty or innocent of the robbery. While it is true that a sentencing judge has wide discretion in considering relevant data, it cannot be challenged that the sentence is imposed only with respect to the crime for which the defendant stands convicted. The other factors considered by the judge are relevant only in so far as they may aid him in determining what is the appropriate punishment for the specific violation. A practice cannot be condoned, however well intended, of convicting a person on one charge and then sentencing him additionally for another uncharged crime which happens to involve the same circumstances. Obviously, the use to which the gun here was put might be relevant in determining how “bad a person” the defendant is. But his sentence is not for being a “bad person”; it is for violation of a particular law.
The trial judge, in my judgment, confused two distinct aspects of sentencing. The prime consideration in imposing a sentence should be the seriousness of the offense actually committed. Other factors are then considered for the purpose of determining what degree of punishment is necessary for the individual person. The judge assumed that the prior use of the gun was relevant to the question of seriousness of the offense. It was not. The statute prohibits only the possession of unregistered weapons. The seriousness of an offense under the statute is dependent upon the number and kind of weapons illegally possessed, not on what their use may have been. Their use is only related to the secondary question concerning the individual defendant’s character and history.
The distinction is important in the instant case. The majority permits the abbreviated hearing only because it relates to the seriousness of the offense. Even assuming that there may be a second crime which is relevant to the seriousness of an offense for which there is a conviction, this is clearly not true in the instant case. The majority’s attempt to limit the opinion to “related” charges is grounded on fallacious reasoning. Since this armed robbery has no relevance to the issue of possession, I can see no analytical basis on which to
Thus, this case actually presents one of the questions raised but not answered in our recent opinion in United States v. Haygood, 502 F.2d 166 (7th Cir. 1974): Is it error for a sentencing judge to consider the facts underlying a separate charge pending against a defendant ?
I would remand for resentencing.
. In the context of this case I believe we are presented with this question even though a specific objection to the hearing was not made. Unlike Haygood, we are confronted with a situation in which the pending charge was in state court. Thus, there could have been no hope by the defendant that if the federal judge considered the facts of this other charge, the state prosecutor would not pursue it. Moreover, here we have the direct appeal as opposed to what was in Hay-good primarily a double jeopardy claim raised as a bar to the prosecution of the second charge.
. I recognize that present authority may permit a sentencing judge to consider hearsay statements even when they relate to other criminal activity for which there has not been a conviction. See Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1760 (1949) ; 18 U.S.C. § 3577. See also United States v. Haygood, 502 F.2d 166, 171 n. 16 (7th Cir. 1974). It should be noted, however, that in Williams the defendant did not challenge the contention that he had committed these other crimes. The specific question of use of prior arrests or pending charges was not addressed in Williams and I believe the case should be strictly limited to its facts.
