*2 GOLDBERG, Before WISDOM Judges, LYNNE, Circuit Judge. Judge: WISDOM, Circuit appeal requires examine, This us power briefly, scope of the judge probation, revoke district proper standard for waiver of the hearing at a on revoca- tion of Ross, appellant, David James attacks grounds on two the revocation of his probation, ordered hearing allegedly after a at which Ross First, waived the to counsel. appellant contends, he was not “within probation period” required by Ti- tle 18 U.S.C. at the time he com- § mitted the state which led court, therefore, revocation. power without to revoke his for violation of its conditions. appellant contends that he was enti- tled to the assistance of retained his hearing counsel at the revocation that his waiver of un- derstandingly intelligently made. We hold that the first con- groundless. conclude, tention is We however, that Ross was entitled assistance of counsel at the revocation hearing and that his adequate understanding made with an import proceeding in which he Accordingly, vacate involved. the revocation of re- mand the case to the district court. I. January jury trial, 8, 1973, after a
On
co-defendants, were con-
Ross and his
conspiracy
possess
victed
twenty-six pounds of
tent to distribute
imposed a sen-
marihuana. The court
years imprisonment, and
of three
tence
parole
years,
special
term of three
conviction the
Because
proviso
the defendant be
$400.
with the
months,
court conducted a
prison
for four
confined
May 7,
to determine whether
sus-
the sentence be
the remainder
pro-
should be
revoked.
pended,
Ross be
and that
Through
following
oversight,
year period
Ross’s retained
a five
bation
stayed
counsel was not notified of the
execution
release. The
convened,
how-
week,
When
until Janu-
for one
of the sentence
*3
expressed
ever,
the
put
belief
ary
allow Ross
hearing was “sort of informal’’ and was
returned to his
in order. Ross
business
willing
presence
to continue without
the
in Dallas.
home
signed
of counsel. Ross then
a waiver
few
stay
short. A
home was
His
hearing pro-
of counsel
form
the
and
returned,
arrest-
Ross was
after he
hours
ceeded on
After a
short dia-
basis.
charged
pos-
police
by
with
and
ed
Dallas
logue
defendant,
with
re-
the
the court
amphetamines
and narcotics
session
probation
voked the
and ordered execu-
(barbiturates),
law.
of state
violations
originally
tion of the full sentence as
as-
day
January 9, 1973,
after
the
On
sessed.
police,
stay of the
the
arrest
Dallas
revoked,
federal sentence
II.
custody.
into federal
and
taken
he was
charges,
arraigned
on the state
When
Ross contends that Title
U.
pleaded guilty
3653,1 establishing
and
sentenced
3651 and
S.C. §§
the
(which
guidelines
thirty days imprisonment
probation
for federal
and its
months)
permit
probated
revocation do
fined
not
for 12
and was
a district court
may
modify
part, provides
any
The court
1.
:
revoke or
Section
condi-
proba-
probation,
may change
Suspension
peri-
tion of
or
§ 3651.
of sentence and
the
od of
tion
period
Upon
judgment
probation,
entering
together
any
of conviction of
thereof,
any
punishable by
extension
shall
offense not
death or life
not exceed five
years.
any
having jurisdic-
imprisonment,
court
try
against
part, provides
Section
tion to
offenses
the United
:
jus-
Report
probation
§
when satisfied that
the ends of
ar-
States
officer and
public
probationer.
and
best interest
the
as
rest of
tice
the
well
will
as the defendant
be served there-
any
by, may suspend
imposition
probation period,
At
time within
or execu-
the
jirobation
place
may
tion of sentence and
the defendant
officer
for cause arrest
probationer
probation
period
upon
found,
on
for such
and
wherever
without a
any
proba-
warrant.
such terms and conditions
the court
At
time within the
as
period,
proba-
tion
deems best.
or within the maximum
period
Upon
judgment
permitted
entering
tion
section 3651 of
conviction
title,
any
punishable by
offense not
death
life
the court
the district
or
probationer
punishment
being supervised
imprisonment,
if
which the
the maximum
longer
supervision,
provided
or if
than six
he is no
under
for such offense is more
jurisdiction
months, any
having
the court
for the district
which he was
court
supervision, may
try
against
last
under
issue
war-
offenses
the United
proba-
justice
rant
when
for his arrest for violation of
satisfied that
the ends of
during
probation
occurring
period.
public
tion
best
interest of the
as well
may
thereby,
the defendant will
served
speedily
possible
impose
As
after arrest
months
sentence
excess
six
probationer
provide
shall be taken
before
the defendant be confined
having jurisdiction
jail-type
in a
court
institution or
treatment
Thereupon
exceeding
period
him.
re-
six
over
the court
stitution for
not
require
probation
him to
re-
voke the
months and that
the execution of the
any
imposed,
suspended
lesser
serve the sentence
sentence,
or
mainder of the sentence be
imposition
probation
if
of sentence
for such
the defendant
any
suspended,
impose
period
upon
sentence
terms and conditions
such
imposed.
originally
which
have been
as the court deems best.
842; May
25, 1948,
c.
62 Stat.
June
24,1949,
c.
§
Stat.
matter,
Longknife
federal
both
was a
an offense
probation when
revoke
proba-
appear
sentencing
sanction
but before
after
committed
probation
the time the
ac-
probation has
tion before
or
of the sentence
service
tually begins.
probation
In both
argument
su
cases
a certain
begun.
has
granted
the result of a mis-
appeal.
Ross was
semantic,
As
perficial,
representation
defendant
termi
sanctions
observes,
Section
sentencing
pro
alteration,
suspension
court. Revocation
or
nation,
any
proper,
occurring
to be
would
held
since
“at
a violation
bation for
granted if the
period”. The
been
time within
provi
information at the time of
had accurate
us read this
appellant would have
sentencing.
Rundle,
exclusive; only
435 F.2d at
if an individual
See
sion as
Longknife,
724-725;
may probation
F.2d at 20.
probation”
be re
is “on
asserts,
arrested
Otherwise,
there are
Since the defendant
voked.
day
sentencing,
po
charges
state
no
conditions
thought
hardly
the court can
to have
probationer
could violate
tential
*4
revoking proba-
its
in
no notice
abused
discretion
he would have
as
hence
guilty
pleaded
by
which he could
tion once Ross
of conduct
course
charges. Only
pro-
a narrow and
revocation.
those
avoid
scriptive
of
3651 and
Sections
yield
contrary
could
the
result
3653
the
that Section
Aside from
fact
urged by
appellant. We do not so
the
exclusive,
case
terms
not
its
is
3653
provisions.
read these
reject
policy
con
Ross’s
sound
law and
policy requires
Sound
that
courts
appellate re
of
tentions.
standard
probation
should be able to revoke
for a
one;
probation
a strict
cases is
view
defendant’s
committed
before
only
its
abused
if the district court has
commences;
the sentence
an immediate
re
determination
will
discretion
its
activity
rep-
return to criminal
is more
upset.
probation be
United States
voke
rehensible
than one which
occurs at
1304,
Clanton,
1969, 419
5 Cir.
F.2d
v.
later date.
clearly
There
no abuse
1305-1306.
ago
1940,
long
here. As
of discretion
III.
dictum,
observed,
that
Court
this
improper
To
that
conclude
it
not
properly in re
had acted
district court
per
for the
se
court
to revoke
voking
prisoner
the
of a
who
appellant’s probation
is not to hold
possession
of
was discovered to be
hearing
that
at which revocation
awaiting transportation
narcotics while
properly
was ordered was
conducted.
prison.
States,
Cline v. United
5 Cir.
appellant asserts,
Mempa
first,
that
1940,
curiam)
275,
(per
F.2d
116
276
Rhay, 1967,
128,
v.
389 U.S.
88 S.Ct.
(dictum).
254,
336,
19 L.Ed.2d
establishes
Appeals
At
two other
every
least
Courts
to the assistance
of counsel at
rejections
stage
have also recorded their
proceeding,
critical
of a criminal
appellant’s position:
including
hearing
United States
on revocation
Rundle,
1971,
ex
rel.
Sole
3
435
second,
v.
Cir.
waiver of
his
721; Longknife
F.2d
9
v. United
was ineffective because it was
Although
1967,
intelligently
Cir.
F.2d
Run-
381
knowingly
made.2
agree
prosecution
we
with both
dle involved
of these contentions.
state
controversy,
brief,
appellant
In
to this
this section of his
a new
revocation hear-
ing
required.
Gagnon
Scarpelli, 1973,
Gagnon
would be
also cites
v.
411
was decided
U.S.
778,
Supreme
ap-
May 14, 1973,
hearing,3 of our con- a brief original period of sentence. required finement counsel was clusion that By revoking probation court appropriate. suspension in effect earlier vacated its Rhay notes, Mempa v. As Ross sentence and increased the term “appointment counsel instructs original incarceration from the every indigent required at for an year four three term. months a full stage proceeding where aof criminal Finally, colloquy in its rights a criminal accused substantial hearing at the revocation indicated at be affected.” it viewed Al L.Ed.2d at 340. S.Ct. opportunity to correct an error though indigent, not an sentencing at trial: presence and entitled to the assistance Well, say THE I COURT: will retained at the revocation counsel you, Mr. Ross: You sold me a bill proceeding if it to which was a goods when we tried the matter. Circuit, Mempa applies. how Mempa requiring ever, been has read personally uncertainty I had some hearings only at those relocation my you mind toas whether were tell- place. resentencing at which takes ing the truth. The circumstances Henderson, Shaw F. very strong against you. were 2d con 1118-1119.4 are Since thought you good made im- *5 vinced that was essential pression and there was a little uncer- ly resentencing, no diffi we have more tainty my in own mind. culty than did the district court con thought After the lie detector test, I cluding required. that counsel was you probably guilty that were We view revocation as a re- jury course, passed had on it. sentencing First, for several reasons. up pass your wasn’t guilt to me to on charges Ross was arrested on the state innocence, or you I but did think were day relatively the same that lenient young promise man of some imposed. federal sentence one gave you what I considered a relative- stay week of execution of his sentence ly light sentence. immediately vacated and he was custody. I greatly federal So Thus impressed with your honesty credibility when the or day not, you got speak occurred and strictly after you it was home and were ing, probationary possession a violation of found in only terms of not mari- huana, resulted in quantity the revocation. but a of hard narcot- ics, the revocation too. was held within a effect, position you non to have a THE retroactive COURT: If have retained Mr. seemingly confirmed, passing, Oaperton, you are entitled to have him McDonnell, Court. See Wolff v. 418 U.S. here. 539, 2963, (1974). you 94 41 money S.Ct. L.Ed.2d 935 If have no with to which em- any event, ploy lawyer, you we need appoint- not wrestle with the are entitled to problem, indigent person. since we must vacate ment and remand of counsel as an pre-Gagnon you this case even under that, I am standards. sure understand but I want Gagnon’s apply, you course, standards will to sure do. proceedings further on remand. hardly Mempa 4. This is universal. continued, 3. The court Gag : (Scarpelli follows See Gunsolus v. Okay. non), record, 1971, THE COURT: 416; For 7 Cir. F.2d 454 Hewett v. then, you you Carolina, 1969, I 1316; advise are entitled North 4 415 F.2d counsel at 1968, Ashworth v. United 6 Cir. Tes, 245, DEFENDANT ROSS : F.2d sir. not be viable post-Gagnon world. represents He still and order THE COURT: I revoke the you? into execution. sentence Yes, sir. DEFENDANT ROSS: all for now. That’s have will have to THE COURT: We defendant, course, clear, is down, am he him come I told right properly advised once days today and it will take a few trial it, Arizo- Miranda v. waive counsel get him here. na, U.S. Honor, Your I it DEFENDANT ROSS: 707, but 16 L.Ed.2d hearing was sort must be understood that equally the waiver clear understanding of informal and that he wouldn’t have a full made with forgone right to be here. nature of the possible consequences of the as the well right not have I would waive charges against defendant and of okay him here is me. proceeding in he is involved. Von THE You want to waive COURT: Gillies, 1948, 332 Moltke v. U.S. your Caperton to have Mr. or 723-724, 68 S.Ct. L.Ed. lawyer your some other here be- Particularly role crucial is the 320-321. half? penetrating in- judge, trial whose you You are entitled to do terrogation explanation careful can wish. the waiver of the assure that Yes, DEFENDANT sir. ROSS: defendant is made with a THE You are entitled to understanding COURT: full ramifications. lawyer just your present Gillies, Moltke Von 723- you at the forth and were trial so 724, 68 S.Ct. you I want to be sure understand that. here, Applying such standard yes, Well, DEFENDANT ROSS: sir. to show that the record fails just you I would like to talk to about knowing in counsel was it if could. telligent he one. He told that nothing did to coun- counsel, point but at no impression teract *6 consequences advised of the dire merely reiterating informal”, “sort is, proceeding; from could flow he could waive counsel if he so immediately returned desired. prison previously serve sus Finally, pended years eight we cannot overlook the two months of Although fact the absence of the defendant’s his term. oversight certainly was due to an determined that Ross’s part inquiries voluntary, the Governmént never itself. upon understanding touched fault was not the Ross’s defendant’s. In these significance circumstances, of the waiver —or of the absence of coun accomplished fact, Indeed, sel an itself. from Ross’s the standard concluding statements, reasonably for the waiver could knowing intelligent high actually inferred that did must be in Here, grasp import proceeding: deed. the standard was not met. Accordingly, judgment we vacate the here, THE COURT: Come around revoking Ross’s and remand please. case the district court a new oversight through I understand on revocation of the defendant- Capteton Mr. advised to be today. LYNNE, Judge (concurring). your understanding Is that ? I concur However, the result. Yes, DEFENDANT pretermit ROSS: sir. would not reconsideration power district court to revoke probation for an offense commit- prior him ted to the commencement probationary
of his sentence.
Counsel Ross should be unfettered opinion II Part of the court’s to con-
tend that a close of 18 U.S.C. §§ (1970), a statute which I strictly, require
would construe seems to split sentencing under the
provisions period commence after Moreover, incarceration. cited the cases rely “right-privilege”
in Part II on the firmly distinction which has been dis-
credited, particularly
in Footnote 4 of
Searpelli,
778, 782,
(1973).
The district court should be left free to reasoning
determine whether
Longknife and Rundle will withstand process scrutiny.
current due al.,
James M. BACON et Plaintiffs- Appellants,
TEXACO, INC., Defendant-Appellee. No. 74-2045
Summary Calendar.*
United Appeals, States Court of
Fifth Circuit.
Nov. *7 * Cir.; Enterprises, Rule Casualty (5th 5th see Isbell Inc. v. Citizens Co. N. Y. et al. 1970), 431 E.2d Part I.