United States v. Douglas S. Dawson

CUDAHY, Circuit Before BAUER BARTELS, District Senior Judges Judge.**

PER CURIAM. Donald S. Dawson

Defendant-appellant a order district court appeals Fed.R.Crim.P., for Rule motion under re- ‍​​​​‌‌‌​‌​‌​​‌​​‌​‌​​​​​‌‌​​‌​​​‌‌​​​‌​​‌‌‌‌‌‌‌​‍We vacate and of sentence. reduction proceedings consistent mand for further with this order.

I were and two co-defendants

Dawson conspiring of one count charged with of U.S.C. deliver cocaine in violation distributing of with four counts 846 and § 841(a)(1). of 21 U.S.C. § cocaine in violation guilty two of pleaded One co-defendant was sentenced distributing counts and special parole of ten years to a term other has not been years; of term three plead refused Dawson apprehended. he was not claimed that because he guilty alleged any of the transactions involved in government re-in- The the indictment. conspiring on one count dicted Dawson U.S.C. cocaine in violation distribute charge guilty to pled 846. Dawson § was dismissed. He indictment and the first 663.35 had delivered admitted that he agent. to an undercover grams of cocaine Dawson to the сourt sentenced The trial to be years term of fifteen maximum 4205(a), served from Parole Commission prevents the which ** York, sitting designa- Bartels, Judge ern District New Senior The Honorable John R. East- tion. of the United States District Court 4205(a) prevents request until the сom- Parole Commission parole considering sentence, with a considering parole request one-third of the until the pletion of from years. of ten special parole completion term of one-third of the sentencе prison. informed Daw- sentencing, the court At a motion to re-

son that it would consider II The court stated duce sentence. A Rule 35 motion for reduction of knows, Now, attorney the court your as discre sentence to the sound ‍​​​​‌‌‌​‌​‌​​‌​​‌​‌​​​​​‌‌​​‌​​​‌‌​​​‌​​‌‌‌‌‌‌‌​‍is addressed days within 120 can reduce this sentence States v. tion of the trial court. United you really if can show that have seen you Brown, cert. de (7th Cir.), 428 F.2d 1191 right and are on the side light the nied, 238, 941, 400 91 27 L.Ed.2d what drug problem. you I don’t know (1970). our re scope appellate 245 The your anything know about sourсes narrow; the view of a Rule 35 denial all, know whatever know and you you but will be set decision of the district court you can be on the side of the law as well abused its dis aside if the trial court opposite speak as on the side. Actions Id.; Donner, United States 528 cretion. louder than words. on other overruled (7th 1976), F.2d 276 Cir. sentence, his but appeal Dawson did not States, grounds, Lawary v. United 599 F.2d sup- filed a Rule motion subsequently 35 (7th power 218 We have no to Cir. ported an affidavit in which he stated by changе imposed or reduce sentences within that he of the sentence felt that a reduction on requisite legislative limits the would be in view of the ten appropriate severe, too ground that the sentence is year imposed upon sentence the co-defend- Burke, Townsend v. 334 U.S. given ant. Dawson claimed that he was (1948), unless the trial 92 L.Ed. 1690 harsher sentence because he had not volun- court failed to exercise discretion at all any teered information about his source. States v. United in sentence. that he not explained had assisted Main, cert. (7th Cir.), 598 F.2d strongly per- because of held principles sonal and because of fear and (1979). L.Ed.2d 311 wife, concern for the of his safety family, and himself. He further added that fеderal its dis The trial court did exercise identity authorities knew the of his source a number of factors cretion. It considered as his well as source’s location as the Dawson. The initially before it sentenced government had the location under surveil- presentence report court reviewed the day alleged lance on the of the offense in defendant and various by the letters filed requested indictment. Dawson also friends and The court also con relatives. imposed sentence be served pursu- charged, crime sidered the nature of the 4205(b)(2) ant so that his conversion, and religious Dawson’s claimed eligibility parole would be determined childhood circum background Dawson’s solely by guide- the Parolе Commission’s stating that it would stances. The lines. sought evidentiary Dawson an hear- if motion to sentence entertain a reduce ing motion, on his which the district court government by with the cooperated Dawson in its discretion denied. drug about supplying information On April sources, the court denied Daw- ‍​​​​‌‌‌​‌​‌​​‌​​‌​‌​​​​​‌‌​​‌​​​‌‌​​​‌​​‌‌‌‌‌‌‌​‍also considered implied that it had order, son’s cooper Rule 35 motion in a short stat- to the fact that Dawson had refused ing that the sentence was sound when im- When Dawson government. ate with thе posed, his Rule 35 change unwillingness that it saw no need for a in indicated his sentence, trial and that the “route to minimum government, motion to assist the custody time is the Parole sentence. It through Commis- court refused to reduce the sion.” court to At the same time the court declined for the district improper to allow failure to the sentence to be served give weight some to defendant’s Roberts v. 4205(b)(2), though section even section cooperate prosecution. with the States v. United ple also enunciated Hartford, 1974), 489 F.2d L.Ed.2d 622 court said: where the agree While we defendant statutorily- of a Appellate modification harsh, we have very appears sentence entirely authorized sentence ... is an on the based take action authority scruti- than the careful different matter sentence. of the severity evaluation of the judicial process which the ny of the not abuse trial court did We find that punishment was determined. particular Rule 35 Dawson’s its discretion incursion into unjustified Rather than an motion. sentencing judge, this province subsequent June On is, contrary, a responsibility latter on the May filed on notice of Dawson’s always has of what necessary incident 1980, Congress held that Supreme the Court of review appellate appropriate been “to autho not in 21 846 did intend U.S.C. § criminal cases. conspiracy for convictions.” terms special parole rize In the original.) quoting in (Emphasis States, 447 lco v. United Bifu in apprоval, Supreme the Court above with 398, 2247, 2258, 65 381, 100 S.Ct. U.S. States, 424, Dorszynski v. United 418 U.S. (1980). authority, that we L.Ed.2d 205 On 443, 41 L.Ed.2d 855 94 S.Ct. sponte sua special pa the of vacate term (1974) “Although well established added: role. of sen bars review of the exercise doctrine Therefore, solely this сase remanded is discretion, review is availa tencing limited parole term. In special of the for dismissal not sentencing discretion is exer ble when respects appealed the judgment all other applied by principle cised at all.” This was from is affirmed. v. in Yates United Supreme the Court 766, States, 363, 366-67, Purpose De- 356 U.S. Remanded For The Limited (1958), and this 768-769, 2 837 L.Ed.2d scribed Herein. Wiley, v. 278 F.2d United States in court BARTELS, Judge, District dis- Senior also United States See (7th 1960). 500 Cir. senting. (10th v. McKay, 491 F.2d 624-25 Cir. 94 cert. 1973), S.Ct. dissent, be- respect, With due I all (1974). L.Ed.2d 560 40 harsh, is but excessively cause the sentence to right inquire because the district court failed to exercise Thus this court has in the imposing the court its discretion in the of sen- whether the district imposition fundamentally unfair majority’s state- acted in a agrеe tence. I with the sentence discretion, or law the of its general ment of that: manner in exercise proposition the at all. This any failed exercise discretion to We no or power change have reduce re- whether the sentence is is no less true imposed requisite the sentences within an directly viewed ground the legislative limits on the v. United States 35 denial. See from Rule v. Townsend severe, sentence is too Donner, (7th 1976), 279 Cir. 528 F.2d Burke, 736 92 334 ‍​​​​‌‌‌​‌​‌​​‌​​‌​‌​​​​​‌‌​​‌​​​‌‌​​​‌​​‌‌‌‌‌‌‌​‍U.S. [68 v. Lawary grounds, on other overruled (1948), trial court L.Ed. unless the 1690] States, (7th 218 Cir. 599 F.2d at failed to exercise discretion all imposing sentence. United States sentence, the district Prior Main, Cir.), cert. (7th 598 F.2d 1094 Dawson’s it evidence of court had before denied, 444 943 62 U.S. [100 mar- possession of prior conviction —for one L.Ed. 1690] serious had no other ijuana. had and however, His stated Unit- brushes add, I law. childhood as this the court unstable, Harris, princi- due very were ed States F.2d adolescence drinking problem and 1977): pally which the trial to his father’s process by “The divоrce. Dawson consequent not insu- judge parents’ determined the sentence is age, and very early appellate princi- This on his own at lated from review.” education, over, Dawson made it clear that his failure grade eighth his limited dеspite carpenter journeyman he became a further information was out to furnish sentencing, Dawson trade. At the time and his safety for the of himself of fear old. years applica- of the Rule family. In its denial tion, did not address the the district court maxi- Following imposition already avail- sufficiency court stated: of the information term the 15-year prison mum able, legitimate fears as knows, or of Dawson’s Now, attorney as your cooperate. sentence within 120 can reduce this reasons for his failure Court really have you if can show that days you not fall within accordingly case does right are on the side of light seen the Roberts v. United pattern factual know what drug problem. I don’t 63 L.Ed.2d 622 anything sources or your know about you authority (1980), suggest which I all, know you at but know whatever you motion. In court’s denial of Dawson’s the side of the law as can be on you infor- Roberts, needed the Actions opposite as on the side. well might pro- have mation that the defendant rеgard. in that louder than words speak Moreover, the de- it did not. vided. Here me it is clear from the above state- To out of his “con- cooperate failed to fendant why reasons ment that there were two his former criminal tinued solicitude for entertain a mo- district court said he would enterprise”, not for fear. 1) reformation tion to reduce the sentence: J., concurring). (Brennan, at 1365 2) infor- provision and and repentance; reading of the Presen- a further Finally, defendant’s source of concerning mation the district court Report tence discloses that drugs. requirement, As to the first detail followed the completely every and in letters, affidavits, recom- numerous punishment pro- recommendation sаtisfied that condi- mendations more than officer, who did not have before him conversion is bation post-conviction tion. While a accept a court must on a not a consideration that were before the all the considеrations motion, judge district here indi- Rule 35 time the latter con- district court at cated that he would consider it in Dawson’s Moreover, in 35 motion. sidered the Rule He did not. His failure to do so was case. ‍​​​​‌‌‌​‌​‌​​‌​​‌​‌​​​​​‌‌​​‌​​​‌‌​​​‌​​‌‌‌‌‌‌‌​‍Daw- April its Order of incon- a failure to exerсise discretion and motion, court nev- the district son’s Rule 35 regularity sistent “with that and fairness upon his additional re- expressly passed er which should characterize the administra- pursuant be served quest that his sentence justice tion of in the federаl courts.” Sal- 4205(b)(2). provisions to the U.S.C. § 646, 647, 81 dana v. United not raised of the sentence was aspect 784, L.Ed.2d 855 court never because the lower upon appeal majori- requirement, As to the second The district court question. ruled on the ty admits thаt one of the conditions of the jurisdiction to con- therefore still retains entertaining a motion to re- district court’s See, g., United sider the same. e. States cooper- duce would be Dawson’s decision to Gee, (D.Tex.1972); United 56 F.R.D. 377 ate. The suсh a difficulty Feliciano-Grafals, F.Supp. States appears condition in this case from Daw- (D.Puerto Rico stating son’s affidavit my it is con- foregoing, reason of the By source, a statement already drug knew his clusion, district with due deference tо the supported by Report, the Presentence denial should the Rule 35 12:40 a. m. wherein it was noted that: “At for review case remanded vacated and the Dawson, hav- on after September At of the above factors. consideration home on Rock- ing stopped supplier’s at his expressly rule court should least the district Bluff, Illinois, Road, arrived at land Lake for a sentence application on the restaurant, grams of delivered 663.35 4205(b)(2). and was arrested.” More- Stacy, cocaine

Case Details

Case Name: United States v. Douglas S. Dawson

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Mar 3, 1981

Citation: 642 F.2d 1060

Docket Number: 80-1690

Court Abbreviation: 7th Cir.