*2 сircuit, every judge give district an WEIS, Before ADAMS and Circuit imposed. for each sentence KUNZIG, Judges, Judge.* Lee, (3rd Virgin Cir. Government of Islands v. OF THE OPINION COURT Richardson, (3rd Thus, imposed since the sentence PER CURIAM. statutory was within the limitation and previously This case has been before the sentencing there defect in proce is no States, court in Del Piano v. United dure, this court will not interfere with the (3rd 1978), F.2d 1066 we re- wherein judge’s trial discretion as to the sentence manded defеndant’s case a for de novo sen- Lee, imposed. supra United States v. at tencing hearing to the who judge district 916; Virgin Government Islands Rich denied, had previously hearing, without a ardson, supra at 894. Del pur- Piano’s Motion to Vacate Sentence Accordingly, after consideration of all suant to 28 questions U.S.C. 2255. The parties, of the submissions the sentence of presented now (1) us for decision wheth- court is district affirmed. er failing court district erred in transfer judge upon case another ADAMS, Judge, concurring. Circuit remand, (2) whether the of the failure judge to state his for his reasons I concur of the Court sentence constituted error as a matter because the law as it now stands does not as law. general require sentencing matter Claims, sitting Kunzig, by designation. Robert L. States Court of
*Hon.
showing
illegality
or
unless there be
case to a different
judge to transfer a
injustices
of discretion.”
abuse
for resentenc
remanded to him
when it is
situation have been
may result from such a
give
expla
require
ing, nor
elsewhere,
proposals,
and several
explored
But,
imposed.
for the sentence
nation
the modest to the
scope
varying
it,
mat
really
put
Justice Cardozo
“[W]hat
put forward.4
far-reaching, have been
*3
this,
duty,
is under a
the
is
that
ters
innovation,
power of
within the limits of his
that have re-
Among
suggestions
the
law
relation between
and
to maintain a
is that
trial
widespread support
ceived
morals,
jurispru
of
precepts
between the
reasons for
judges
required
be
to advance
good
reason and
con
dence and those of
In
impose.
they
the sentences
separately
Accordingly, I write
Bazzano,
1120,
science.”
1130-38
States
again,
adopt
once
to
urge my colleagues,
J.,
to
(3d
1977) (Adams,
concurring), I
power,
rulе,
supervisory
pursuant to our
arguments
mustered in favor
canvassed the
judges
explain
to
require
would
trial
procedural
that
to this
re-
opposition
of and in
being imposed,
reasons for the sentence
the
аnd concluded that:
quirement,
are such
at least when the circumstances
help to
that
a rule would
assure
expect the de
might justifiably
one
that
grounded on the facts of a
sentences are
substantially lighter or
to receive a
fendant
case,
would serve the
particular
and
impor
For
substantially heavier sentence.
promoting the defend
broader aims of
get justice, it
people
tant as it is that
should
the fаirness
as well as
ant’s rehabilitation
they
that
should feel
equally important
is
sentencing procedures.
rationality
and
of
receiving it.2
they
and see that
delay
also eliminate the undue
would
the sentenc
when
frequеntly
that
results
affairs,
of
under
prevailing
The
state
appellate
in an
ing process
questioned
is
un-
judges exercise almost
which trial
court,
given
has not
and the trial
sentences,
fashioning
in
power
checked
gains
for the sentence. These
his reasons
sys-
safeguard-steeped
anomaly
in our
burdening
overly
without
would obtain
administering the criminal law. Al-
tem of
invading the
without
judges,
trial
the defendant a
though
system
this
affords
to set sentencеs
realm of their discretion
evidentiary pro-
procedural
of
panoply
knowledge of the
of their
on the basis
opportunity
well as an
to
tections at trial as
circumstances sur
and the
defendant
lеgal
the
issues
meaningful review of
seek
rounding the crime.5
based,
finding
guilt was
it
upon which a
of
im-
highlights the
present case further
concern to the
prime
leaves an issue of
reasons, as a
of a statement
portаnce
the next
few
fate over
defendant —his
facts demon-
pertinent
brief recital of
single judge.
of a
the discretion
years—to
strates.
rule,
appellate tri-
general
As a
“a federal
Piano,
guilty to
pleading
after
sen-
Frank Del
will not review a
bunal
conspiracy,
robbery and
charges of bank
statutory
maximum
tence that is within
Relating
Justice,
Standards
Cardozo,
the Judicial
dards for Criminal
B. N.
The Nature of
(App.Draft
Appellаte Review of Sentences
(1921).
Process 133-34
Project on
American Bar Association
George
2. See Lord
remark to Sir
Herschell’s
Justice, Stan-
Minimum Standards for Criminal
“Important
people
was that
should
Jessel:
as it
Relating
Sentencing
Alternatives
dards
justice,
important
get
it
more
that
was even
Berkowitz,
(App.Draft
Procedures
they
they
and see that
should be made to feel
Requirement
a Written
Constitutional
Chancellors,
Atlay,
getting
Viсtorian
were
it.”
Support
in
and Facts
of Reasons
Statement
Jurispru-
460,
Pound,
quoted
II.,
Mechanical
Sentencing
Pro-
A Due Process
Decision:
dence,
605,
(1908).
n.4
8 Colum.L.Rev.
(1974); Kutak &
posal,
60 Iowa L.Rev.
Gottschalk,
Fessler,
a Ratiоnal Sentence:
In Search of
3. United States
Review,
Concept Appellate
A Return to the
(1974).
53 Neb.L.Rev.
Frankel,
generally
Sen-
Criminal
M.
4. See
(1972);
Order
tences —Law Without
Goldfarb
omitted).
(footnote
5. 570 F.2d at
(1972);
Singer,
American
After
&
Conviction
Project
Minimum Stan-
Association
on
Bar
decision,
Wood,
by Judge
imposed a sentence
January
was sentenced
on
identical with
27, 1964,
twenty-five years
prior
total
one.
completed
imprisonment. When he had
then,
justice system
In essence
our
has
serving
years,
petitioned
twelve
Del Piano
original,
to Del Piano that his
conceded
court
pursuant
28 U.S.C.
year sentence was
twenty-five
unconstitu
to have his sentence vacated
tionally imposed
original
because
sen
ground
Judge
Wood had considered six tencing judge
improperly
had
considered
juvenile adjudications
delinquency
at
prior
determining
certain
cоnvictions
represented by
which Del
was not
Piano
Also,
severity of the
our
sentence.
Court
counsel, thereby warranting resentencing
agreed
has
with the
defendant
Tucker,
under
rule
resentencing judge erroneously resentenced
U.S.
S.Ct.
judge
judge
because the district
that was
notwithstanding
original
the
sentence’s ille-
now to conduct the
hearing
de novо
had in
gal
prior
reliance on
uncounseled convic-
ruling
his earlier
expressed
opinion
an
that
tions. And it cannot be said on the record
original
the
sentence was appropriate. The
judge
bеfore us that the
abused his discre-
judge
motion,
denied the
and conducted the
any
against
tion or
Del
showed
bias
Piano.
de novo sentencing hearing on June
1978.
Quite
contrary, upon reading
to the
the
At the conclusion
the hearing,
judge
the
transcript
resentencing proceeding,
of the
stated that
presentence
he had reviewed the
one
by
judge’s
is struck
the
concern that
report,
officer,
discussed
probation
it with a
permitted
any
defense be
introduce
sentencing
considered the
sub
memoranda
by
mitigating
appropriate.
evidence it deems
mitted
defense counsel and the Assistant
Still,
Attorney,
justice system
for the criminal
and heard
to work
the tes
timony
effectively,
appearing
only
dispense jus-
the witnesses
it not
must
on de
tice,
fendant’s
judge
perceived
behalf. The
then
it
vacated
must be
to do so.
I As
and,
explaining
sentence
withоut
his
observed Bazzano:
App.
required
satisfy
6.
right
defendant’s
allo-
judicial
cution and to avoid
review of a district
States,
(3d
7. Del Piano v. United
by
Morе justice criminal system our that for by in it as respected participants
be public, it must be observed by as
well enough for it to be fair. is not
to be that, too, correct, although technically Requiring
a fundamental aim. set forth a trial of a sentence be
basis principle that promote would in the perform high its function best
“to satisfy appearance
way ‘justice must ”9 justiсe.’ case, present a statement of rea-
In the have as the sentence would served
sons for to the de- to demonstrate opportunity well-wishers,
fendant, public, and the his fact, undoubtedly was
what by the first sentence swayed was not that, impression; by his own earlier
or he judiciary, regards of the
characteristic deprivation liberty
the state-sanctioned *5 matter; and that the crimi- weighty
to be legitimate. and basically fair process
nal judiciary, an undemocratic as
Inasmuch government, in a can democratic
institution long so it is legitimacy only its
retain justice, guided by to be a sense
seen of such an should
importance
not be underestimated. Tinari, DiFabio, V. Nino Philip
Vincent Pa., appellant. for Philadelphia, Cottone, M. Atty., D. U. S. Sal S. John Scranton, Jr., Atty., U. S. Cognetti, Asst. Pa., for appellee. America, Appellee, STATES of
UNITED GARTH, and Circuit Before HUNTER BROTMAN,* Judge. Judges, District NELSON, Appellant. Mike 78-1587. No. OF THE COURT OPINION Appeals, States Court Third Circuit. PER CURIAM: Argued 10, 1979. Jan. Nelson was convicted Appellant Mike Decided March 1979. abetting aiding December
Rehearing April Denied 1979. substance, importation of a controlled 2 and U.S.C.
violation of 18 U.S.C. of this case 952(a) facts §§ opin- in the district court set forth fully * Brotman, Stanley omitted). United States (footnote S. Honorable 570 F.2d at Jersey, Judge New the District of District sitting by designation.