*1 We note first section convicted, the defendant was does
which republication re- expressly merely
quirement. That section refers
to “controlled substances” which are
defined in section 595. Controlled sub- stances, 595(a),
according to section initially
“shall consist substances question this section.” Thus the
listed in whether, republica-
arises in absence of listed,
tion, initially the substances heroin, cease to be controlled.
of which is definitively question is answered 595(c)
section
schedules shall consist of the substances
initially until amended listed “unless or provision
pursuant to 594.” This section (b) of Sched- reinforced subdivision I,
ule in that which lists heroin schedule specifically excepted or unless
“[u]nless
listed in another schedule.” 19 V.I.C. 595(c), 1(b). We therefore Schedule Legislature persuaded
are in- initially
tended substances listed to
remain whether controlled substances republished
not the schedules did republieation
not intend to be an ele-
ment of the offenses defined section judgment district court will
be affirmed.
UNITED STATES of America Forman, Judge, Circuit dissented LANCER, Appellant. Edward William opinion partly and filed which was con- No. 73-1795. by Seitz, Judge. curred in Chief Appeals, States Court of Third Circuit. Argued Dec.
Reargued Sept.
Decided Jan. *2 Curran, Atty., Wal- E. J. U. S. Robert Section, Jr., Chief, App. Batty,
ter S. Lieberman, Atty., Alan M. Asst. U. S. Mellon, Jr., Attys., Asst. U. E. S. Thomas Pa., appellee. Philadelphia, Barol, Kanner, Kanner, & Stein David Pa., appellant. Philadelphia, Argued Dec. FORMAN, HUNTER
Before GARTH, Judges. Circuit Reargued Sept. SEITZ, Judge, and FOR- Before Chief ALDISERT, DUSEN, AD-
MAN, VAN ROSENN, HUNTER, GIBBONS, AMS, GARTH, Judges. Circuit WEIS and THE COURT OPINION OF GARTH, Judge: Circuit examine the requires us to appeal interrelationship sent validity We obliged to decide among petitioner un other upon the ences1 issues: petitioner’s whether 3651,2 4208.4 36533 and §§ U.S.C. der 2. At vacate sentence that imposed original alleged warrant the Court was: periods Pennsylvania!]] 22164, 22160, warrant issued from Leavenworth pursuant 9, issuance tion any/all Nos. October a detainer was 18 U.S.C. The order entered and the remainder of the sentence be life ment institution for a confined in a tice and well as the defendant by, may impose months and ment tion to life diction to ment than six six months and that well by, tion probation terms and ditions as the court offense is such best. States tice of 1970] Probation § 3651. Upon entering Upon entering time, the is dated any any imprisonment, “discharging 22119, 22172, may imprisonment, any action was initiated of and as of that the sentence motion for Violation of provided further time Lancer was sentenced of a warrant for violation of when satisfied sentence and when satisfied that the offense not offense not to the defendant will be served there- probation on pro and months, any both. try the best suspend 1970. As a result of this warrant for such punishable by the October 9th try conditions as October 222[3]8 illegal October provide placed against se) best jail-type papers offenses under 28 U.S.C. 2255 Suspension of discharging prosecutions offenses If an offense is for such offense is more provided upon the ultimate relief petitioner Penitentiary a the in the Eastern District of interest interest if placed and excessive. judgment punishable by judgment punishable by period 22173, 13, United States place filed deems the maximum the court . granted that the execution institution or will period such terms and con- Probation, against court against 1970; and the 1970. The arrest court withdrawing fine or by the in on the defendant on of the be the Petitioner Lancer’s release and having jurisdic- of best. order is dated on Indictment relevant Petitioner, (at sentence and the probation, of conviction defendant be a motion to served excess having juris- on court deems whether the directing [sic ends any ends the United the United upon punishable suspended conviction exceeding issued or execu- imprison- public public April death or death or in Marshal October a treat- punish- and all In the sought of there- part: such jus- jus- the the six as as 4. 18 have no ed. press tion or dition of od of years. sentence any 18 U.S.C. § 3653 The results of such be deemed to be for the maximum sentence parole may ble for be served Attorney General, formation as a basis for the Bureau of Prisons believes would be become be less justice sentence to be commit the the posed by defendant to specify imprisonment imposed one-third of the maximum sentence im imprisonment the may the time of tion, sentence, year, may (1) designate before the court for the district to was quire probationer] risdiction over him. er The The court (b) (a) Upon entering As *3 indictments, but, amendments to both fine and U.S.C. 4208 serve the sentence imprisonment sentence, and, extension maximum sentence of recommendations which the Director of expiration [******] suspended, may impose any the court revoke the limitation, [******] probation. speedily If the court desires that period relevance might originally parole and best interests of the that the probation, eligible than, and described the when in which event the court the defendant be may limited to one or determine. sentencing the Fixing eligibility judgment. court, thereof, fine and of at such time as the but shall as having jurisdiction for of which the for shall extend prisoner may revoke or probation to the probationer probation, imposed, possible provides prescribed imprisonment, if which commitment shall or parole, a imprisonment. in the absence 3651 in 1970 and 1972 imposition a may change shall subsection study, together imposed, Thereupon term place opinion judgment a minimum term at have been issues here discuss- not in the the more detailed after arrest modify imprisonment in relevant which term in relevant determining and not exceed five the court together exceeding custody be shall be taken prisoner to court more counts become for sentenced1 the ends of or require sentence of sentence more than law, the entire (c) having ju- of convic public to the court any the parole any imposed. board sentence may Proba- of ex- hereof. peri- with' con- eligi shall part: [of part: may may less- him fix in- re to to of at a n herein, we forth set July reasons For the imposed properly was still alia, validly hold, therefore, inter he was whether month, year, ten four valid order for when an a time within Indict- term violation charging probationary his arrest 9, 1970 October We must ment on October was issued Therefore, petitioner court issued.6 the district warrant whether determine also war- a withdrawal entitled petitioner under erred in the_ the detainer. discharge of 420&(b) rant & of 18 U.S.C. provisions re- all but not many holding, his it had revoked (c) after analysis of with the spects accords 1967; and, we must finally, March of Nevertheless, we court, court. the district whether determine obliged to remand could having revoked once sentences certain correct term. reimpose thereafter remaining probation- compute appeared presented, originally As *4 must serve. ary term required to determine we be would maxi involved the the first two issues: I. Facts be for could mum sentence 1, 1965, 6415 where the petitioner, a violation of U.S.C. On June Edward plea Lancer, alleged pleaded no value and indictment William guilty in the was taken without District for to the indictment Court the Eastern District of value; Pennsylvania im proof the second involved of Indictment charg- on ing him, count, of two position of sentences in one having with re- totalling in separate money indictments excess ceived 364 orders stolen post argument before a years. Pennsylvania of five After offices in and Jersey New court, motion, this our own panel of violation of 18 July U.S.C. On rehearing we en banc to consider petitioner pleaded ordered the guilty to issues and discussed below. these others Indictment a two-count indict- three months unless the court helpful this prisonment originally probation as case, shall be ports the sentence the offender under of law. from date may prescribe, tenced to such sions of which in his nish report prisoner’s previous delinquency or criminal shall not be limited to data experience, social determining tal and tors as (c) Upon be made of the further parole. to exceed an additional three title, section. regulations as the discretion: background, together physical subsection or determining recommendations, imprisonment study. commitment pertinent (2) be term of the sentence shall run This authorized board furnished opinion shall original considered imprisonment, affirm the sentence of im- health, suitability (1) report may his any applicable provision After (a), prisoner cause a Place the circumstances the capabilities, imposed, parole commitment under to the court within receiving Attorney under the recommendations disposition pertinent. section Director, complete such the court and shall fur- regarding be prisoner grants and commit include prisoner or reduce helpful other summary his men- such re- months, prisoner General of provi- time, sen- . fac- but his of 5. 18 tailed might have be both; but if the value of imprisoned not oned does not exceed or zled, stolen, purloined or converted— records States] [any money formation whenever not with case. tion agencies interest, Shall Whoever (d) It U.S.C. § 641 gain, knowing fined not more than analysis shall be the ****** officers and respect [******] not more than disposition 641. Public * * * with be fined not more than their otherwise been concerning furnish or receives, conceals, intent to convert it to his of the factual record than what incompatible views and thing more than ten the sum of duty has government it to have parole the board money, of value of the United required $1,000 year, recommendations relevant disposition in necessary. with such prisoner, and, $100, various property or been of bureaus or both. a more de- $10,000 or retains years, parole property he shall impris- embez- proba- public of his part: use and in- or or ment charging forging uttering On Count the imposition of sentence of a money bank order in violation is suspended. (forging U.S.C. a postal money indictments, the the other six each of On order). date, On that same he also en- suspend- was also of sentence tered guilty pleas to six other indict- ments variously charging him with of- probation imposed. no ed with reveals that Lancer’s The record fenses under 18 U.S.C. §§ actually Indictment bation (theft receipt of stolen mail mat- The Novem- May 1966.8 commenced ter). The six indictments, latter along charging Lancer petition ber with Indictment were transferred (lying, forg- with violation from six different states to the Eastern checks, absconding from ing fraudulent District Pennsylvania under Fed.R. hearing before etc.) led to a supervision, Crim.P. 20.7 taking After guilty pleas to 29, 1967.® court on March indictments, all the district court im- court, entered of the district The order posed following sentences: Lancer’s 29th revoked on March Under Indictment 22119: pe- for a imprisonment ordered tion and (10) Ten years, the first two months of riod of “ which are served jail-type in a NINE YEARS and institution. The execution of the bal- (10) MONTHS, TEN said sentence of ance of the sentence is suspended and imprisonment being imposed under the placed upon probation provisions of Title 18 U.S.Code *5 period (4) for a Four of Years and Ten 4208(b) for a study § as described in (10) months, under provisions of 4208(c); the study results of such 3651, 18, Title U.S.Code. be furnished to the Court within three Under Indictment 22173: months.....” [imposition completion of sentence suspended study, is On Lancer 1,
on
3,
Count
August
and
was returned to
placed
court on
upon probation
period
sentence,9
for a
placed
for final
of Five
and was
on
years
count,
on
probation
said
for
probation pe-
years
months,
nine
ten
and
riod
is to begin at the
with the
expiration
prison
of
of
sentence
that
imposed in
suspended.11 By
April 9,
Criminal No. 22119.
order dated
7.
8. From what can be ascertained from the
Virginia, Georgia,
nois. Fed.R.Crim.P.
of
receiving
Pennsylvania).
indictments from
was then
imprisonment
to
ment.
charges
fragmented record,
The states involved
taking pleas
commence
that he
in that
district
taken to Ohio to
reported
his
under Indictment
area.
(here,
other districts
probation
Missouri, Virginia
having served his term of
imposing sentences
It was
were:
the Eastern
permits
under this Indict-
not until
Alabama,
probation
face unrelated
22119,
for
transfer
District
purposes
and
2,May
in the
West
office
Illi-
of
11. The record
order,
motion made
recites
(filed
length
though,
this
tory
held.
the defendant
9
the removal
years.
years
[**]
4. On
opinion,
March
procedure
[*]
if
among other
as we
any,
On
[*]
the sentence.
August
[*]
27, 1968)
the court was mistaken as to the
entered
by the United States
is unclear with
point
of
occasion,
months,
probation
probation
18 U.S.C.
things:
out in a later
on
1967,
August
“Amend
(See
for
respect to the
the end of 5
Court
a chance for
3,
726,
3653,
Sentence,”
portion
period
1967. A
Attorney
placed
infra).
even
was
of
warrant,
9. The arrest
which issued as a result
original
un-
reverting
sentence
to the
In
probation violation,
in
was executed
22119, the defendant
Number
der Criminal
January
Colorado on
1967.
record
The
probation for a
placed on
been
to have
custody transfers, ultimately
reveals various
years
months. The
period
and 10
resulting
“delivery”
in Lancer’s
to the Eastern
Number 22173
under
Pennsylvania
District of
on March
1967.
by either the
have been affected
should
probation
procedure
the resentence
The
violation or
utilized
the district court
10.
Therefore,
probation
requiring
in
sentence
this
Lancer to serve the “sentence
22119.
[originally]
separate
imposed”
years
indictment
on the
conformed to the statu-
of 5
valid;
(b)
was
the ten
dictment
response
1968, (apparently
sentence, permitted
maximum
under 18
motion, supra
Attorney’s
States
$100,
641 where value exceeds
impo-
U.S.C.
suspended
court
n.ll),
district
properly
plea
after a
could
time,
but,
this
prison
sition
guilty, because the district court could
“four
for
probation
petitioner
placed
the value of 364
judicially notice
(10) months.”
and ten
(4) years
blank,
money
exceeded the
stolen
orders
“hurdle”;
(c) 18
penalty
U.S.C.
$100
again
was
1968, Lancer
January,
preclude consecutive five
3651 does not
(ab-
violation
charged with
separate
terms on
in-
year probationary
hearing on
a court
sconding).12 After
dictments;
and, (d) after
revocation of
was continued.
June
be ordered
imposed.
appeal
again
followed.
arrest
authorizing Lancer’s
The order
13 was
last violation of
his
II.
Theory
Petitioner’s
related
As
entered on October
Essentially,
theory, by
Lancer’s
upon
a detainer based
supra,
note
discharge
(in
he seeks
of all restraints
against Lancer at
placed
order
the form of sentences to
April
be served and
prison on
Leavenworth
detainers), particularly,
the October 1970
precipitated
been
instant action has
The
detainer, proceeds as follows:
this detainer.14
large part by reason of
original
His
sentence of ten
illegal
Indictment 22119 was
vacate sen-
pro se motion
Lancer’s
excessive,
in that
the maximum sentence
indictments,16
eight
all
referred
tence
which could have been
under 18
indictment
significant
although
(in
allega-
U.S.C.
the absence of an
Indictment
appeal
purposes
$100)
value
tion of
excess of
was one
denying
year;18
(a)
in-
that:
motion held
Lancer’s
*6
Atlanta,
penitentiary
would still commence at the conclusion of
was transferred
Georgia,
years
presently
the 4
and 10 months under Criminal
in residence.
he is
where
26, 1972,
April
Number 22119.
indicates that as of
The record
requested
the order of the
It is
then that
noted as
date was
Lancer’s earliest release
12,
Court be so amended.”
1975.
June
appointed
15. Counsel was
after
leave
9,May
12. Lancer was
1968
arrested on
pauperis
granted.
ceed in in forma
was
Memphis,
returned
and was
Tennessee
20,
'Philadelphia
May
on
1968.
16. Indictmentsnumbered:
22173, 22153, 22163, 22164, 22160, 22228.
13. The
petition charging
violation
17. The district court’s
opinion
is found at 361
recites, among
things,
was
Lancer
February
other
F.Supp.
(E.D.Pa.1973).
4,
prison on
released from an Iowa
1969,
one-year
having
term
after
served a
18. Lancer’s motion before the district court
Probationary supervi-
an unrelated offense.
permissible length
does not refer to the
resumed
sion under this Indictment was
prison
where the maximum
term
20,
February
that date and continued until
year.
that can be
is limited to one
supervi-
again
1970 when he
absconded from
however,
appeal,
acknowledges
His brief on
sion.
the district court was authorized to im-
pose
probationary
despite
a five
term
14. Much of Lancer’s
history
prison
can be
being
statutory
limited to the
maximum of
papers.
found in his motion
He recites
).
(See
year imprisonment.
infra
one
(after
February
he was sentenced on
States,
232 F.2d
See Driver v. United
plea
(North-
guilty) by
a
(4th
1956); Mitchem v. United
421—422
Cir.
Florida)
prison
ern District of
term of
(5th
1951);
States,
Cir.
193 F.2d
(5) years
five
U.S.C. 2312
violation of 18
Hollandsworth v. United
34 F.2d
(transportation
vehicles).
He was
stolen
(4th
1929) (probationary
426—427
term
Cir.
Leavenworth,
thereafter incarcerated in
where
statutory
not
tence).
limited to the
maximum sen-
filing
the warrant of October 1970 lead to the
Thereafter,
April
1972 detainer.
he
original probationary
2. His
term of
In
Ciongoli,
United States v.
358 F.2d
four
and ten months under Indict-
(3d
1966),
Cir.
we were
upon
called
expired;
22119 has
ment
to consider a motion to
an
dismiss
indict-
brought
ment
under 18 U.S.C.
illegal
It
consecutive The indictment
alleged
that case
terms
in excess of five value in excess of
attributable
$100
to 51
years;19 and
money
stolen
argument
orders. The
that,
made
inasmuch
the money
as
or-
imposed by
term
The
blank,
ders were
their value had to be
as
result of the
district court
less
Despite
govern-
than
$100.
hearing was unauthorized
March
by
ment’s
prove
offer to
value in excess of
18 U.S.C.
$100, the district court dismissed the in-
Hence,
he was not
Lancer claims that
reversed,
(at
dictment.
stating
We
the order of
legally
441);
F.2d
issued, charging a viola-
“
October
.
.
. The essential wrong which
subsequent
all
acts
tion
proscribes
the statute
is the misappro-
that order must nec-
depend upon
priation
government
property,
essarily be void.
knowing that
it has been stolen.
Thus, no particular value of the stolen
property
proved
need
alleged
or
(18
III. The 1965 Sentence
U.S.C.
conviction,
sustain a
though
such a
641)
punishment
case
lesser
can be
analysis
Our
starts with an examina-
imposed .
.”.
v.
United States
charging peti-
tion of Indictment 22119
Marpes,
(3d
1952)
20. No was penalty provisions 23. The of 18 U.S.C. 659 statutory are not relevant to fines references (theft carriers) parallels interstate disposition to our discussion penalty provisions of § in that it also present case. penalties two levels of depending I, upon supra. property 21. See value of the taken. proof government’s to offer 22. The failure guilty pleas were taken value the time the probation- the district court after government cases,24cited er has violation of been arrested for im- sustain sentence effort an statute, bation. the terms of Under Lancer, as in inapposite, posed upon could revoke Lancer’s the district court allege a them, the indictments each of did) require probation (as it him ei- $100, ingredient an in excess value imposed ther to serve the sentence Indictment. missing in the any lesser sentence.26 that, un with Lancer agree We 22119, his sentence could der Indictment case, present the July more than term of prison not exceed the “sentence imposed” sentence is therefore, hold, We year. one meaning within the of 3653. We have court to the district was error for already July determined that nine though even year sentence ten 1965 sentence was excessive when en of that sentence months years and ten (see supra), tered not III but void. court did The district suspended. were Hence, Lancer’s re was however, ten err, following voked under the maximum time term with a year sentence required which he could have been previ ten months. As years and of four time remaining serve limited to the (note supra), proba ously noted (and a ten year year) under one need not be limited tionary term sentence. Lancer had served two (in this case prison sentence maximum and, jail months in as we construe the by statute. prescribed year) record, apparently had been credited July sentence of Lancer’s entire pre-sentence with four custo months holding 28, 1965, our is not voided dy by Accordingly, the district court. imposed exces court 29, 1967, that the district March Lancer had served six court term. The district prison sive months have jail and could been re year a one validly quired could to serve no more than another six as Lancer’s remains term and apparently months. The district Indictment 22119. Unit sentence acted the first alternative of Pridgeon, 153 ed v. States 3653 in requiring Lancer to “serve the leave L.Ed. 631 We S.Ct. Translating sentence imposed”.27 what court, remand, the task the district do district court intended to in its ac sentence in correcting Lancer’s 29, 1967, order of into March what it holding.25 our cordance with do, could validly the district court in ef
fect
for the
committed Lancer
unserved
portion
(i.e.,
of a valid one
of Probation
1967 Revocation
IV. The
months).
six
to do so
It chose
under the
4208)
(18
§§
U.S.C.
(see
(c)
terms of
discussion
(A).
following) seeking
guidance
such
as a
furnish,
prior
imposing
could
(see
supra)
note
18 U.S.C. §
final sentence.
taken
specifies the action
court,
States,
upon
Then
v. United
387 F.2d
revocation of
See Churder
(8th
1968);
could fix
sentence which could
Cir.
Jalbert
1967).
sentencing.
(5th
*8
have been
at
the initial
Cir.
F.2d 125
This third alternative was not available to the
(3d
25.
In Ruiz v. United
(B). § imposed. tence challenge While Lancer does not technique another (designed Still ap- manner in which the district court flexibility in sentencing) was incorporat- plied 3653 in order of March ed into the statute in the form the 1967, he does assert provisions study found 4208(b) in § and impose probation court could not (c). The House Report Committee de- once U.S.C. 4208 his scribed these sections in this fashion: argument, revoked. To answer this two (b) “Sub-Section preliminary questions must be con- possible court, make it for the sidered. confronted the necessity with of mak-
ing a sentence determination in a par- ticularly case, difficult to commit the provisions (1) Are defendant (technically under the statu- where the 4208(b) available (c) tory term) maximum the Attorney to ex- does not probationer General complete study for a over year? ceed one period of three to six months. At the completion available for of this provisions these the court Are revocation of would be conjunction modify with the authorized to the sen- use in study’s findings tence if the 3653? and the judgment of the court indicate such we ini- answering questions, these action . . provision legislative relevant his- look to the tially would extend the authority court’s to enacted 4208 was tory. U.S.C. modify a period up sentence to a to six information, provide additional 1958 to (cid:127) months, thereby making feasible de- services, to sentencing procedures tailed studies selected defendants sentencing judge enable before final sentence must be formu- sentences and flexible29 equitable lated. with needs of offender keeping designed receiving After It was from the public safety. Director Bureau of greater summary Prisons a afford discretion district study, give fixing the court the court in judge, as well the final 4208(b) (c)) discretionary penalty may original access (in affirm the sen- ty pre-sentence respect sentencing. Hearings was overlooked credit See court). H.J.Res. 425 & H.R. before a Comm, Subcomm. of the House on the Judici- and we need not con- issue is raised 28. No ary, Cong., 85th (Tes- 2nd Sess. ser. at 22 served whether the three months sider timony Biggs) (Testimony Hon. John at constitute “lesser Lancer under § Laws) (1958). of Hon. Bolitha J. under § sentence” Admin.News, Cong. See 1958 U.S.Code & Testimony witnesses various Cong., pp. 3891-3906, 85th 2d Sess. *9 every Hearings almost stressed in Committee 13,392 Cong.Rec. (remarks of Con- desirability flexibili- of additional instance gressman Celler). tence a modified sentence study provisions purpose for the any applicable provision of law relationship to the term little bears origina[l] . . Inasmuch as sentenced. can be which the defendant represents sentence of the court (b) [sic] purpose The of Sub-section statute, by maximum authorized “making a sentence the court assist by later modification the court difficult particularly in a determination constitute reduction in sen- assuming case.”32 There is no basis tence . . . judges . A number of occur sentencing decisions that difficult have advised the Committee that this ex- permissible sentence only when the [up extension to six would be factors, months] year. Complicated ceeds one helpful most enabling give them to Bureau of Prisons study by more excep- deliberate consideration to out, just likely to sort are designed is tional cases. when the offense commit- present to be of less a maximum sentence ted carries (c) prescribes . Sub-Section Here, plead- Lancer had year. one than the Director of the Bureau indictments guilty eight separate ed prisoner make the studies Prisons other, and had suffered incarceration re parole eligibility needed for during time his charges unrelated lease determinations the Board of Indictment 22119 should probation under ,”31 Parole . . running. Whatever factors have been initial the district court in its influenced 29, 1967, the March In its order of on, July sentence of Lancer 4208(b) and court acted under § operative have been might might 4208(a). When (c) rather than under § 1967. The learned district March (b) language of statutory Sub-section ap- in an effort to determine judge, (a) with that of Sub-section is contrasted the inter- light sentence in propriate significant that (see supra) it is note the violation of vening incarceration and (a) found in Sub-section two limitations pre- 4208 for the probation, employed § (b). Sub- missing from Sub-section it was enacted. purposes cise for which (a) by the words prefaced is section logic find no in a construction We conviction entering judgment “Upon prohibit the district statute which would language appears . .” No such utilizing study provisions court from (b). Sub-section (c) 4208(b) where the term § year. one We the offender is less than Similarly, (a) purports Sub-section year” limi- that the “one therefore hold “ be limited to cases in which 4208(a) intended was not tation the defendant imprison- sentenced to [is] (c) Congress to use of § bar ment for a term exceeding year one has been revoked on an after Again, .” language such is con- penalty not carrying offense a maximum spicuously (b). absent from Sub-section imprisonment. exceeding language, These statutory differences in as well as legislative history Interrelationship are relevant to our determination and 4208 §§
that the district court did not err in uti-
that,
It
argued
after
lizing
its March
1967 order.
revoked,
has been
the district court is
authority
pursuant
without
to sentence
One Year Term
argument
focusing
4208. This
(b)
fact
that Sub-section
4208(a) (“Upon
the first words of
en
silent with respect
length
of sen
tering
judgment
.”),
of conviction. .
required
tence
before a
can be or characterizes this clause as a “time” limi
dered is consistent with our view that
tation which restricts the use of
H.R.Rep.
H.R.Rep.
Cong.,
No.
Cong.,
85th
2d
No.
85th
2d Sess.
Sess. 9
(1958).
9-10
*10
sentence
might
originally
sentencing.
of initial
We do
to the time
been imposed.”
If sentence could have
agree.
originally been imposed
under
as
§
instance,
18 U.S.C.
first
it unquestionably
could,
then
4208 is
§
we are
4208(b),
with which
the section
§
upon
available for use
pro-
revocation of
concerned,
to
no reference
makes
here
bation
alternative,
under
3653’s third
§
arguably lim-
prefaced by, the
is not
and the
“time”
argument
limitation
(a). The
language of
iting
Sub-section
urged against
use,
must
fall.
If
judgment
a
“Upon entering
words
available under one alternative
”
found
not to be
.
.
. are
conviction
3653, we
logic
§
see no
in concluding
(c).
4208(b) or
in either §
that
4208 is
equally
§
available un-
der the other resentencing provisions of
adopt
we were
Additionally,
if
§
us, it
upon
urged
characterization
“time”
Substantiating
our conclusion that
into con-
bring
necessarily
§
prefatory language
4208(a) (“Upon
do
which we
§
result
3653 —a
with §
flict
entering
judgment
a
in-
conviction
intended.
was ever
not believe
.”) imposes no
an il-
time restriction or
be shown
consistency can best
other
limitation
offender,
on the use of
placed
§
An
lustration.
(c),
per-
of sen-
Fed.R.Crim.P. 35 which
with
in 1972
bation
in mits a reduction in sentence within 120
violates
suspended,
tence
days
imposed.
re-
after
sentence is
If we
not available
4208 is
If §
adopt
were to
urged
because
construction
purposes
upon
us that
4208 can be
only
§
utilized
the “time”
1974 is not
entered,
“Upon entering
judgment
of conviction
was
“Judgment
of Conviction”
(see
.”
then there could be
no modifi-
§
alternative”
the “third
sentence,
meaningless.
cation
(originally
of a
would be
supra)
note 26
revoking
(e.g.
3651)),
another
after
statute
to a
the court
§
Under §
pursuant
(if imposition of sentence
sentence
4208.33 We know
may
“
any
required
.
.
.
no such restriction
either
suspended)
ons to
statute
date
Eugene
March
reau
Bureau’s
States
4208(a)(2)
to include
4208(a)(2).
were concerned
would be a reduction
fore
period
not a reduction.
en the
does not
door
eligibility
obstacle
As a matter
has been construed
theory
Russ Millin had indicated
and not the sentence
of F.R.Cr.P. has
of Prisons to
District
to be amended
could not be
[******]
permit
even after
to a
N.
position as follows:
allowable
position
to overcome
change
Barkin,
1967. Mr. Barkin set
date.
affects
possibility
sentences
Court,
Some
interest,
that since
the term of
provisions
for reduction
Perhaps
Esq., Legal
At
change
accomplished
elapsed.
Judge
Kansas
people
and made
best,
in sentence and there-
days
amending
is the
the Bureau
itself. Letter
we note
an earlier
a more
parole
has
this amendment
Hunter,
of sentence
language of the
to me that
feel
City,
only opens
of 18 U.S.C.
sentence,
We have
Counsel,
pursuant
expired, on
under Rule
under one
that Rule
forth the
judgment
Missouri,
eligibility
after the
of Pris-
difficult
parole
it is
tak-
you
Bu-
ney in the Office of the Director of the Bu-
We note the Bureau of
time of initial
Prisons has reaffirmed its
spect
As
which does not include the term
ing
noted,
question
Mr. Barkin’s
reau of
Lewisburg, Pa.)
section
this
their
amendment
ment of conviction
rate, a number of courts have amended
statute itself which states that
sion
4208. Letter
We do not have before
recently
judgment
we are concerned with Sub-section
4208’s use is' not
[*]
judgment
Bureau has
(a)
Prisons to Allan A.
of whether
post-120
be used
letter, only
[*]
involved.
sentencing;
May
allowable under Rule 35 and
from Julia S.
3,May
face value.
in this manner
permitted
conviction
[*]
day
modification to a
“Upon entering
always
Prison’s
to reinforce our view
rigidly
modifications under
us for
[*]
Here,
even
position
.
after 120
Willson,
the Bureau of
Casperson (at
accepted
limited to the
. ”. At
[*]
“Upon
decision,
practice
as we have
where Sub-
subsequent
this
with re-
[*]
.”.
Attor-
provi-
enter-
judg-
days.
this
(b),
*11
cable to this situation because here the
of the statutes
in
express terms
the
new,
court has
and possibly significant
and, hence, we are
by reason
question or
information before it when the case
properly
view that
4208 was
§
comes before it for
disposition.
final
court in its March
utilized
29,
It would seem most incongruous if the
infra).
(See n. 37
1967 order.
court would be unable to reinstate a
probation
defendant
if the new
Reimposition of Probation
facts available
clearly
to it
indicate
the use of §
nary questions
then remains
the
little
bation
doWe
pressed
the
1967 order.
reimposition
Bureau
precedent
Our
has once
by Mr.
have,
answers
of Prisons
4208(b)
whether §
however, the views
Barkin, Legal Counsel
result
been
guide us
probation
and
revoked.
ultimate
who has
(c)
4208 authorizes
our
two
in this area.
the March
after
approving
There
question
written:
prelimi
pro
ex
then
obtaining information to aid the
tencing judge
one case we have found in which a sen-
Mr. Barkin’s
final determination.”
the
ed more information before making cated that it was uncertain and want-
this to be
In addition, in applying
[******]
utilized
first
place
the
§
analysis
revoked
proper
the court clearly indi-
accords with
course to take.
the
probation and
§
purpose
4208(b)
court in
the
in
the defendant without
once
of the statute makes
state
logic
ditions
court must then
even if the defendant
congruous
only when it concludes
should no
Since
and material before
“It
community,
[******]
of this
the defendant to
having revoked
seems
court
revoke and
longer
if it
provision
to me that the
does not have to revoke
immediately
impose a
it would be most in-
remain at
but rather revoke
it.
violates the con-
seems
thereupon
probation. The
quite
probation,
anything new
sentence.
reinstated
clear that
liberty in
apparent.
language
rein-
It
for assistance
employed by
instant case
(N.D.Mo.1968).
by the district court here. We cannot
distinguish the actions taken
Both
looked to
sistance;
in order to obtain information
trict court
Smith court from those taken
probation.
prisonment
determining
Smith v. United
§
4208(b)
courts
and both courts
is the
Nevertheless,
judge
followed the revocation
4208(b)
the sentence to be
probation
were
We
sentencing;
very procedure
district court in
(c)
in the instant case.
seeking
recognize
while in Smith im-
followed the use
(c)
utilized infor-
for that
F.Supp.
information
both courts
that in the
by the dis-
helpful
procedure
imposed.
by the
utilized
Smith
as-
[******]
final
mation furnished in
action which
they
took.
formulating
We do not
believe that
the fact
the Smith
violator, who
Whether
com-
imposed imprisonment
court
after
provi-
committed under
has been
pletion
while the
4208(b), can thereafter
sions of §
imposed probation
district court here
view of the
probation in
reinstated to
availability
should affect the
of §
know,
3653, as far as I
provisions of §
competent
by a
never been decided
of five
has
Smith a term
hip,’
case,
‘shooting from
Again,
imposed. The district
court.
avail-
received,
utilizing
the view that
after
information
I take
circum-
years”
under these
to the Court
determined that a term of “no
able
pre-
logic
behind
imposed.
The rationale
should be
We find little
stances.
after revoca-
interpretation
require
of reinstatement
in an
which would
clusion
appli-
is not
might
tion as set forth
us to hold that
be available
Offender,
Barkin,
June
at 13-14.
Sentencing
Probation Q.
Fed.
the Adult
to the cus-
committed
if as little
after revocation
serve
Attorney
tody of the
General
results but
day’s imprisonment
as one
(nine
originally
the “sentence”
results.
imprisonment”
not if “no
years,
months) (see p.
supra).
ten
made that
argument
been
An
has
use of
The district court’s
(which
examination of §
imprisonment for
(c) resulted in Lancer’s
probation)
during the course
three months
least
for revocation
(which provides
*12
only after
ini-
between
It was
the
study.
a distinction
reveals
probation)
ended,
4208(b) custody period had
“sentence”.35 tial
and
“probation”
§
the terms
furnished
the district
prevents
and the
distinction,
argued,
it
court,
again
ordered.
probation
that
court, once it revokes
the district
comple-
probation
the
Imposition of
probation because
tion,
reimposing
spe-
study is one alternative
tion of the
left
only discretion
the
4208(b),
cifically contemplated by §
determine
is to
point
that
court at
that:
should
violator
which
probation
whether
the
“
a
imposed or
original sentence
serve the
(cid:127)
(cid:127)
. After receiving such re-
If,
argued, “pro-
as it is
lesser sentence.
ports and recommendations, the court
within the
is not a “sentence”
bation”
may in its
(1)
discretion:
Place the
the
then
district
meaning of §
prisoner on probation as authorized by
be-
reimpose “probation”
court cannot
section 3651 of this title
(2)
affirm
of the “sen-
requires
service
cause §
the sentence of imprisonment original-
term).
imposed” (Le., prison
a
tence
ly imposed, or reduce the sentence of
imprisonment, and commit the offend-
recognize
We
that in
statutory
various
er under any applicable provision of
contexts
distinction is drawn between
law. The term of the sentence shall
run from date of original commitment
“probation”
“sentence”, despite
and
the
punitive
probation.36
features of
Wheth-
under this section.” (emphasis sup-
er or not that
prevent
distinction would
plied).
a district court from reimposing proba-
tion immediately after
probation we need not
tual
tinguished
context of this case.
district
judge
decide
it had revoked
after revoking garded as a “sentence”
Here,
the fac-
the dis- existing law, probation may not
Thus while we
[******]
recognize
all purposes38
that under
be
re-
argument
comparison
prevent
35. would also
rests on a
of
modification or reduc-
language
(“
provide
may
probation
of
suspend
of
tion
§ 3651
.
sentence
in a
proceeding brought
imposition
the
place
or execution of
sentence and
Fed.R.Crim.P. 35.
4208(b)
probation
.”)
§
both
.
and Rule
(“
probation
with
that
.
§
§
.
3651 is
revoke
authorized at a
probation
require
judgment
time after
him to
serve
of convic-
.”).
(emphasis
interpret
tion. We
.
decline to
the interrela-
supplied).
tionship
of these
statutes
manner which would restrict
their use and
States,
necessarily
which
and,
See
Korematsu
lead to
inconsistent
believe,
we
63 S.Ct.
followed
conjunction
lized in
with revocation of
and continuation of
in the first
probation proceedings under
If
contended,
for exam-
is not
instance.
It
employed,
so
the district court after
court was without
ple,
4208(c)
has received the
study, may
Lancer on
power to continue
again impose probation, even though it
as it
in its order of June
did
previously
probation.
had
revoked
Ac
framed
cordingly,
29th order been
Had the March
the district court here did not
rather
probation”
employing
as a “continuation
err in
(c)
in its
*13
29,
order,
March
1967
and exercising
there
its
probation”
than a “revocation
in
discretion
reimposing probation
its validi-
at the
argument
as to
little
could be
err,
conclusion of the study.
It did
how
a mechanistic
not think that
ty. We do
ever,
imposing
greater
in
probationary
distinguish between
seeking to
argument
is permissible.
term than
permissi
on the basis of
se-
the two orders
probation
ble term of
that
justi-
could have
between them
mantic differences
been
at that
time was
in the
restricted
reaching a- different
result
fies
to a
maximum of five
less-
that
argue
order.39 To
case of each
number
months theretofore
served on
is authorized to continue
judge
district
probation by Lancer under
Indictment
proba-
on
probation violator
an accused
22119.40
power
without
to revoke
tion but is
tence for all
ing
Compilation,
(Nature
eral
The comment
nizing
present
sion
cited in
Criminal Laws
Comm,
Sess. 430
the conditions of the
the execution
tions.
tence the offender if he
ment which
authority
means a sentence not
or
“(b)
tenced to
charge
“(1)
convicted
The Final
to the Administration of Criminal
Criminal
require suspension
on Reform
[*]
In this
[******]
law
on
...
Such
Hearings
(1971)
sentence to
“probation”
in the
purposes.
of a federal offense
as a
Report
provided
[*]
Code treat
[*]
imposes
following
a sentence
and Procedures of
report
Judiciary,
of Federal Criminal
“sentence”,
A
Before the Subcomm.
[*]
[*]
(1974) provides
person
conditions
ABA Standards Relat-
the National Commis-
probation):
the term
sentence or
is not
other sentence.”
this
probation
[*]
should
violates
[*]
involving
unconditional
92nd
court to
Chapter.”
who
regarded
states:
3101:
[*]
while
[*]
Cong.,
‘probation’
the Senate
as a
has
to resen-
in § 1.1
confine-
Justice,
involve
be sen-
modify
retains
[*]
condi-
recog-
[*]
Laws,
been
sen-
dis-
1st
on
or
40. As recited
immunity
the
been
final
April order.
discussion
tered until
ing
excess
clude
months”,
appear
April
that
(after
corrected order
1965),
rectional device .
probation
“
“Sentencing
remaining
our
although
sentencing August
required
order
his
probation
neither our
be affected
on
in a
court for
of a total
computation
wrong
for the
. Subsection
of four
App.D.C.
April
supra
“placed
is a
later
provisions
the district court
to serve on
earlier,
time which Lancer could
order was
should
sentence,
placing
9,
move
its determination on remand
under
under Indictment 22119 in
part
prisoner.” King
conclusion
by any
1968. This
of five
[Lancer]
(4) years
(calculated
10,
completed)
(see I
of the time
of this
by
V).
§of
Lancer
..”
(1)
probation
an affirmative cor-
3,
entered.
correction of
years.
F.2d
We leave to the
on
be a
determines that
supra)
nor
opinion
and ten
completed
judge
probation
on
was not en-
would
disposition
v. United
probation
when the
game
spent by
(See
the final
We note
July
As will
April
involv-
means
have
pre-
(10)
our
9,
(4) years, eight (8)
more
four
served
than
V.
of Probation Term
Service
(7)
days
months and seven
on
challenges
Lancer also
the consecutive
under this Indictment.42 Inasmuch as
probation imposed
July 28,
terms
required
(4)
Lancer was
serve four
to.
first,
original
He claims
that his
ten
months on
years,
un-
year,
ten months
four
term
Indictment
it is evident that
der
expired
Indictment 22119
had
completed
he has not
his initial
(the
date the
October
order was
tionary term.
authorizing
entered
the warrant for his
probation). Second,
last violation of
he
The above calculation has deliberately
claims
authorizes no
more
periods
excluded: other
of incarceration
years probation
five
that,
than
(see
spent
charges
under unrelated
I su-
therefore,
year proba-
the second five
),
pra time when Lancer was in violation
tionary
term
under Indictment
spent during
time
custo-
22173 was
and incapable
support-
void
dy
following
transfers
such violations.
ing the
warrant ordered on October We have
made
initial calculation
resulting
detainer. We find no taking
into consideration
the most
argument.
merit
either
evident deductions from the time Lancer
spent
claims to
probation;
(A). Probation Served Under Indict-
is, jail
very
time served under this
In-
ment 22119
dictment.
other required
When
deduc-
tions are
made
district court on
*14
probation
his
that
Lancer’s contention
remand,
apparent
it will become
had been
22119
Indictment
under
time
Lancer still
has
substantial
9,
results
1970
October
served
fully
probation
to
time
serve on
under Indict-
computation
mechanical
from
ment
on the
calculating
22119. Even
ba-
date of
between
interval
time
gross
incomplete
us,
sis
record
before
28, 1965)
the date of
(July
apparent
is
that Lancer falls far short of
for his
authorizing a warrant
order
having completed
probationary
his
term
gross
9, 1970).
in-
(October
arrest
under this Indictment.
months) totals five
30-day
(using
terval
28,
July
Lancer was sentenced on
(11)
eleven
(2) months and
two
(5) years,
(2)
jail;
He served two
months in
was
however,
take into
fails,
days.
It
28,1965;
September
released on
and was
we
custody,
in
spent
time
account
then taken to Ohio to face unrelated
(6)
six
approximately
at
calculated
have
2,
charges.
May
began
On
1966 he
his
(5) days.41
and five
months
(4)
(10)
year,
probation-
four
ten
months
ary term in this district. A petition dat-
7,
ed November
1966
“jail-time”
reveals
Subtracting
least
(six
that date Lancer
probation.
(6)
(5)
served
was
viola-
days)
months and five
(Up
time,
tion
this
gross
(5)
from
time
of five
interval
(6)
spent
Lancer had
six months and
years,
(2)
(11)
two
five
months and eleven
(5) days
days
probation).
on
From November
reveals
Lancer
could
jail
spent
jail,
(2)
42. Time
has not
two
months in
been counted as
Petitioner served
spent
probation.
provided
time
on
Indictment
the absence of
his sentence
express
28,
sentencing
28,
(from July
September
direction
court
22119
con
1965 to
cerning
probation
1965).
again
custody
the time when
for a
to com
He was
(and
3,
29,
(four
intervening
jail
mence
August
its relation to
1967
1967
from March
time,
etc.),
parole,
probation
Therefore,
(5) days).
(4)
tolled
months and five
28,
during
periods
upon
jail
such
July
and would resume
total
1965
time served after
22119,
(6)
release from confinement. United States v.
Indictment
was six
months and five
Gelb, D.C.,
267, aff’d,
F.Supp.
(5) days.
175
269
F.2d
This calculation does
include
(2d
denied,
Cir.),
822,
(4)
675
pre-sentence
custody
cert.
361
80
the four
months
66,
(1959) (intervening
S.Ct.
4
apparently
L.Ed.2d 66
fed
which the
credited to
confinement);
Gerson,
eral
Lancer.
States
(6th
1962) (intervening
Our of 18 U.S.C. 3651 (as authorizing in excess of identity between arguable (5) years five more suggested by two these indictments indictment) than one is bolstered trial coun- petitioner’s statement analysis practical differences be- (before court) these sel our situation found tween and that indictments, six in- and the other two dictments, context, judge, Fox. In the Fox part from and stem 47. Fed.R.Crim.P. 46. Fed.R.Crim.P. the district guilty he formation A other than that position information state in each ment approval er more acts or on each offense er offenses scheme or (a) (a) Joinder of Offenses. felonies or was arrested or is the same or same or [*] district. Indictment constituting of the case in information writing nolo of [*] plan. in which the United pending act if the similar transactions arrested or held in a district misdemeanors or contendere, 20(a) provides: 8(a) provides: Upon receipt pending in or charged [*] he wishes that which the indictment or offenses transaction character in a parts Information the indictment or in- held, subject [*] States in the same indict- against separate to consent connected to waive trial charged, of Two or more [*] or are or on attorney both, him count for Pending. common [*] defend- togeth- wheth- to dis- two or are of based plead 48. The probation. of tion of sentence without maining pended imposition of sentence as to the re- which essary for ed ant hold, sion for “sentences” which the defendant ant’s statement and of the written *16 cution shall continue in that district. the court in the of the United States mation is Indictment States, (9th (1916); 288 U.S. ****** we proceeding six Cir. probation. clerk of dispose us to pending in which the indictment or infor- Collins Similarly, indictments, at 1945). 22173 this deal with is a of sentence under Count 2 of time. Cf. Miller v. Ader- or certified 27, shall A In was this court for the district nullity. the district court sus- S.Ct. attorneys, is held and the light suspension 37 S.Ct. and made placing transmit appeal, suspended of the manner in Ex Parte Unit- effect of copies the clerk of of no L.Ed. is unnec- approval 61 L.Ed. 148 F.2d without defend- imposi- thereof papers prose- provi- these one district sentences one offender under separate with indictments. There is one sentence, indictment. The reason, therefore, good for us regard bation, Fox, in such a case can be inapposite Pisano, structured as supra, supra, very and controlled at the outset. By and United Buchanan, States v. contrast, when several involved,49they can arise in F.Supp. (E.D.N.C.1972). indictments are ge- different We conclude that probationary a valid ographical jurisdictions. If 3651 is (10) (four term of almost ten years, years (4) require construed to year an overall five (10) ten months on Indictment maximum, probationary despite the 22119; (5) years five on Indictment involved, number of indictments district 22173) by the district court courts would problems face difficult July under the two indict- repeat the case of offenders. At the ments. sentence, time of information might not be current or available as to the amount VI. Conclusion probationary time which still may be Although we agree with the district imposed under such an overall five year court that (vacation the ultimate relief maximum. questions, Serious many re- sentences) sought by Lancer cannot quiring litigation would be inevitable un- granted, we are obliged nevertheless der such a construction of 3651: which to vacate the district court order of Au- multiple (and sentences gust 1973 and remand to that court part each) what is to be deemed ex- for such additional proceedings as are cessive; probationary time, how much opinion. consistent with this sentence, under which remains to be served, These, etc. and countless other By disposition, we do not indicate difficulties become immediately evident respect that the district court in year if the five maximum provision of (after discretion not appropriate regarded 3651 is applying as to multi- proceedings) enter an order similar to ple indictments, in the absence of a re- the one which we have vacated. At the quirement, binding courts, on all least, the district court will be obliged multiple periods run concur- to:
rently.50 requirement No such exists un- (1) correct the present der law. (and Indictment 22119 any subse- problems, quent same order perceive entered on the basis We do one counts separate sentence); erroneous dealing with as dealing as, indictment, perceive well as we Sess. 434-35. The comment recognize 49. We that Lancer was sentenced this section recites: eight judge. indictments This situation came about as a result of “This Section does have a counter- proceedings (see Fed.R.Crim.P. part n. 47 provision in Title 18. The supra) respect analysis. and in no affects our running multiple periods concurrent Had Lancer not consented to the Rule 20 probation is premise based on the same proceedings pleaded guilty, and had he not period is the limitation of the maximum problems envisage very we here could five will work with- —either well have surfaced in at least seven relatively different in a short of time or it will jurisdictions if a “five maximum rule” providing not work at all. applied. concurrently prison tion runs with a or a *17 parole offense, term for another the Section existing differs from law . . .” recognize prob- 50. We that a solution to this proposal yet and, has to be enacted proposed making multiple lem has been view, represent existing our does not periods probation, imposed of whether at the By holding express state of the law. our we times, same time or at different run concur- opinion advisability (as no view or as to the rently. Report The Final of the National legality) imposing distinct from the of a term Commission on Reform of Federal Criminal years of in excess of five Laws, multi- Hearings cited Before the Subcomm. ple indictments which is determination a mat- on Criminal Laws and Procedures of the Sen- Comm, ter for the district court’s discretion. Judiciary, Cong. ate on the 92nd 1st The 1967 Revocation of Probation. term, Sole- remaining if (2) determine issue, ly as to that he Judge concurs in any, to be served Forman’s dissent. under Indictment 22119. appropriate. is observation further One HUNTER, III, JAMES Circuit Judge, deliberately limited ourselves to We have ADAMS, with whom FORMAN and Cir- only those issues consideration Judges, join, dissenting: cuit the framework within presented challenge his sentences under Lancer’s Although I am in agree- substantial However, and 22173. Indictments ment with the majority opinion, I cannot ignore part of Lancer’s we cannot agree portion with that of the opinion discharge all petition which seeks approving consecutive terms Indictments restraints 22153, 22163, exceed the five imposed limit 22160 and 22228. in 18 3651. Accordingly, U.S.C. § I must ignore we the fact that the sen- Nor can V(B) dissent from Section of Judge Indictments, under those tences opinion. Garth’s as under Count of Indictment as well 22173, as a matter of law. Ex are void 18 U.S.C. relevant States, 242 U.S. 37 S.Ct. parte United part: (1916); see note 48 su- 61 L.Ed. Probation be limited to one or that we have not treated pra. The fact indictments, but, more counts or in the matters need not restrain the with these limitation, express absence of shall ex- considering court from their dis- district tend to the entire sentence and judg- along with the other matters to position ment. Indeed, remand. al- be dealt with on though we ficiencies court to re-evaluate be brought appropriate no such all the light by for the district requirement, apparent Lancer’s de- with [*****] any extension thereof, shall together [*] years. exceed five (Emphasis petition, structuring added.) with a view to inte- sentences.51 We grated and consistent plural form, indictments, Since obviously express opinion no as to what used, the statute seems to contemplate respect be. those sentences should With situations where a judge sen- given to the directions here we do not tences a defendant on several indict- taking of evidence if in preclude the ments at the same time. discretion, district court’s it is warrant- ed. import The clear para- of the second graph is that only five-year period The order of the district court will be probation may given. be The five- vacated and cause remanded for year probationary term must extend to ceedings opinion. consistent with this the entire sentence so that even if sever- joins consolidated, Judge Chief in all of al indictments are Seitz this the limi- opinion except Paragraph IV tation is applicable.1 entitled See Fox v. United periods, exceeding five factor, affecting five corrective action 51. One duration, may take, in total be decide to district court which the comprising each offense the court’s elapsed “entire length has since of time which judgment” 2) sentence and imposed. See sentences were Lancer’s void purpose, equated “offense” should U.S. 354 at 361- Pollard v. United “indictment.” L.Ed.2d 393 Oth 77 S.Ct. resentencing to be considered er factors The word “offense” is used in § 3651 custody periods and the purpose are the various defining types for the of of- origi intervening date of between the events fenses for grant which the court can present. e., nal and the (i. “any punishable tion offense imprisonment” accept death life apparent view I cannot 18 U.S.C. *18 3651). sense, 1) § Used in this court in this case that consecu- “offense” cannot
738
States,
from each
Cir.,
district
(10th
(E.D., Pa., 1967). independent procedure by which a defendant can frustrate majority applicabili- discounts the government plan impose to stringent ty of correctly noting Fox and Pisano penalties. separate those cases dealt not with Second, the majority sup- advances no indictments transferred under Rule port for its conclusion that 3651 would § F.R.Cr.P., separate but with counts of have permitted an Alabama district simple same indictment. The words court not to suspend sentence but distinction, support of 3651 do not § also suspend to proba- commencement of however. provides “[proba- years. tion for five If 3651 authorizes tion may be limited to one or more this, it is far less to me evident than the (Emphasis counts or indictments.” add- majority suggests. ed.) No basis for distinction between separate counts of the same indictment separate
and entirely
Third,
indictments is im-
majority’s
I do not think the
plied in
Accordingly,
3651.
Judge position
supportable
policy
is
on
basis.3
Garth’s conclusion that
the Fox-Pisano
punishment
Probation is a form of
which
inapplicable
construction
3651 is
liberty.
in abridges a defendant’s
Kore-
“separate
is,
States,
context
indictments”
matsu v.
U.S.
view,
my
unwarranted.
87 L.Ed.
S.Ct.
ambulatory
is a
Though it
mild and
Without a
support,
major-
shred of
nonethe-
punishment, probation
mode of
ity next concludes that
there
if
had been
extending the potential
less results in
no Rule 20 transfer
do not believe
“[w]e
period during which a defendant’s liber-
that 18 U.S.C.
3651 would
pre-
ty
necessarily
is
may be restrained. This
cluded the Alabama District Court from
revoked, a
so because once
is
imposing
term,
a five
may
to
required
be
serve his
to follow a five year probationary term original
credit for the
sentence without
petitioner by
the District
probation.4 If
spent
time
in addition
Pennsylvania”.2
Court in
sentences,
imposing
consecutive
is
con-
allowed
with this
problems
There are several
terms,
five-year probationary
secutive
First, although petitioner
argument.
potential period
of restraint
be
transfer,
requested
Rule 20
the maximum
increased far
excess of
Attorney
United States
equated solely
“indictment”;
(provisions
be
sepa-
statute
be
must
fashion).
multiple
together
rate counts of a
count
read
in a consistent
indictment
separate
each involve
“offense[s]
Opinion
Majority
735-736,
pp.
supra.
at
punishable by
imprisonment.”
death or life
g.,
States,
E.
(10th
Fox v. United
F.2d
Majority Opinion
supra. Although
Cir., 1965).
8(a)
per-
Cf. Fed.R.Crim.P.
which
majority opinion
policy
addresses
issues
(although
require),
mits
does
certain
here,
identical
those raised
feels bound
situations,
charged
two or more offenses
be
law
current
result other
than
reach a
in the same indictment.
policy
that dictated
considerations.
sound
support
reading
majority’s
No
however,
importantly,
More
the mere fact
advanced,
law is
Since the
however.
issue
type
that § 3651 defines the
of “offense” for
clearly
impression,
one of first
I think the
probation may
granted,
which
be
does not
statute
should be
reach a sensible
read to
permit
the inference that consecutive
purpose
result
with the
consistent
terms,
tionary
exceeding five
in total
infra,
cited here in
text
n.
duration, may
offense,
for each
especially when such inference would be in-
language
consistent
quoted
with the
This has been held not
to offend double
in the
Cf.
jeopardy.
text.
g„
Roberts v. United
Fultz,
E.
United States v.
Cir.,
(8th
S.Ct.
1973)
are
to afford
social risks
that when Lancer’s
agree
I
by
opportunity
another
unfortunate
revoked he
22119 was
under Indictment
” 6
court
a district
clemency.’ Whenever
been
in accord-
imprisoned,
could
probationary term
five-year
considers a
3653,
for a term
ance with
U.S.C. §
not
simply
insufficient
is
the defendant
exceeding
portion
of
unserved
“good
In such a situation
social risk.”
one-year sentence.
Instead of
his valid
may be
imprisonment
by parole
followed
Lancer to serve the sentence
requiring
To
consecu-
better alternative.
however,
imposed,
the District
originally
terms, and
five-year
tive
probationary
to commit him the custo-
Judge chose
potential
accordingly
period
increase
for a three
Attorney General
dy of the
restraint,
compatible
of
does
seem
citing 18
study,
U.S.C.
to six month
affording
the “unfortu-
policy
4208(b)
authority.
as
months la-
Four
clemency.”
nate another opportunity
completed, the
ter,
was
execution of
Judge suspended
District
such,
As
I believe
sentence5
one-year
the remainder
probation-
consecutive
imposing
erred in
four-year
new
placed petitioner on a
I
years.
five
ary terms in excess
6, again
term
ten-month
por-
the excessive
void
would therefore
authority.
citing Section
term.
probationary
tion of the
359, 363,
872,
history
For a
U.S.
discussion
S.Ct.
of the Proba-
L.Ed. 1399
(1938).
Murray,
tion Act see United States v.
347, 357,
146,
U.S.
48 S.Ct.