*1 provisions modify supercede any or 19(d) 554, 556, 557 other than or § America, UNITED §§ STATES to those proper speci- officers Plaintiff-Appellee,
limitation 556(b)(3). fied § Secretary cannot un- simply Thus the YATES, Defendant-Appellant. E. Michael supercede authority to possess derstood APA as sees fit. provisions authorization to deviate from his States Court of operates hearing officers use of § Circuit. Seventh appointment only after Argued Feb. qualified persons would of otherwise payment achievement mote the benefits. The modification
compensation Rehearing Denied June 19(d) 554 require- supersession § § respon- very limited one. ments is a was formulat- suggestion
dents’ § way place upon Congress in such a making rigid requirement specific APA references to the
and numeric can holding make
require procedures APA modifications of
limited particular legisla- of a form of use draftsmanship. We decline to intrude
tive legislative process into the
extensively.
In view of our the lan- conclusion acts appropriation covers ad-
guage of enact- proceedings
versarial of those acts did contravene the 559, necessarily follows
requirements BRB must the orders be set Accordingly, petitions Director’s
aside. granted, are BRB’s
for review orders aside, set causes are remanded any remaining legal resolution of questions.
factual GRANTED,
PETITIONS ORDERS SET
ASIDE, REMANDED. AND CAUSES
government to attempt prove these as- sertions, but it developed that the state- ments were hearsay based on to the extent proffered evidence purported to cover Clark, Vernon, 111., Roy Eugene Mount them. defendant-appellant.
for
nicely
We need not
in
weigh
this case the
Schwarz,
Atty.,
J.
Henry A.
U.S.
Clifford
extent and under which circumstances hear
Proud,
Atty.,
Louis, 111.,
East St.
Asst. U.S.
say evidence
bemay
considered in the sen
plaintiff-appellee.
tencing
See,
e. g., Williams v. New
process.
241,
1079,
93 L.Ed.
WOOD,
and
SWYGERT
Williams v.
(1949);
1337
358
CHRISTENSEN,
Judges, and
Senior Dis-
576,
421,
79
U.S.
S.Ct.
3
(1959);
L.Ed.2d 516
Judge.1
trict
United
v.
States
432
(7th
F.2d 1136
denied,
cert.
1970),
Cir.
91
CHRISTENSEN,
Judge.
Senior District
S.Ct.
27
(1971);
L.Ed. 625
United
Chewning,
(9th
was
Cir.
appellant,
indicted on two
1972). Cf. States
Schipani,
knowingly
intentionally pos-
counts
435
denied,
(2d
1970),
F.2d 26
Cir.
sessing
distributing
plead-
cocaine. He
U.S.
presentence
guilty
(1971);
count. After
Weston,
investigation, probation
officer’s
F.2d 626
1971).
Nor is it
hearing,
impris-
necessary
him to
sentenced
to evaluate
argument
defendant’s
years
a term of four
in light
onment for
with a
of Rule
32(c)(1), (c)(3)(A),
parole
Fed.R.Crim.P.,
term of three
to follow
special
pre
prepared by
confinement.
second count was
the probation
officer is to be the
single
primary
claim pressed
dismissed.
on this
source of infor
mation on which
sentencing judge improp-
is that the
sentence is to be
appeal
prejudicial
and that
there must be
erly
hearsay
evidence
for a
determining the
defendant
rebut claimed
in
sentence.2 The record
permitted
Defendant was
to deny
does
substantiate
claim.
the accu
racy
hearsay
statements and did not
requested
The court had
counsel for the
accuracy
government
defendant
to furnish
report. The record indicates
impos
to the
information
officer for the
ing sentence the
disregarded
purposes
presentence report.
Both
hearsay statements or claims and acted
right
reserved the
direct-
upon the basis of the presentence report.
to the
ly
court additional evidence
sup-
opposition
port
defendant’s motion
Although the defendant claims that
probation. At the sentencing hearing,
judge displayed a change of attitude toward
counsel made
defendant’s
a statement but
hearing
him after
testimony,
objected
by government
claims made
the record does not bear this out. On the
that defendant
reported
counsel
had been
before
contrary,
was ever men-
marijuana
have
tioned,
sold
after
released on
had
pointed
out that
bond,
drugs
and that he had sold
high
favorable
he had received at the
permitted
school students. The court
appearance
time of
initial
of the de-
Utah,
sitting
designation.
personally
occurring
1. Of
District of
between
himself
and the defendant. He further
testified on
Agent
Brunholtz
testified
basis
others,
furnished
to him
purchased
cocaine
from the defendant
on
defendant
during
supplied
junior
March and
high
two occasions
local
school
(the
students,
following
transactions which were the basis
his arrest he had of-
indictment)
marijuana
sell
fered to
informant
sell,
police department.
had offered
him heroin. All of
a local
This was the hear-
by Agent
say testimony
testified to
objected.
these were
Brunholtz
to which defendant
dispelled by
been
violated because
him had
before
hearsay,
majority
misappre-
has
presentence
point
argument
hended
Yates’
demonstrates
The record also
32(c)(1)1
Fed.R.Crim.P. 32.
directs
hearsay objected
reference
the United States Probation Office to make
disregarded
the sentenc-
to prepare
arriving
at the
*3
ing judge
report
upon
investigation.
a
upon the
reliance
placed primary
tence he
may waive this procedure
may find the
court
record
sufficient
itself
provided by
within the limits
Being well
a
32(c)(3)(A)2
basis
consideration,
law,5
upon due
permit
the
requires
the defendant
raised,6
the
vulnerable
upon
and,
comment
it
opportunity
the
judgment
are AFFIRMED.
tence and
discretion,
within the court’s
to introduce
testimony concerning factual
SWYGERT,
Judge, dissenting.
sections,
together,
two
These
taken
dem-
decisions,
by
ma-
policy clearly
by
cited
the
a
intended
Although
onstrate
Con-
have foreclosed defendant’s ar-
channel all factual
may
gress, to
data
jority,
rights
by
constitutional
were
in sentencing through
that his
the
guments
the
got
you
1970), supra;
Allen,
much as
I
the
you
3.
“[A]nd
by
now,
visibly
shaken
(3d Cir.),
nom.,
that
were
are
the
the Court
fact
F.2d
denied sub
least,
outwardly
proceeding,
States,
at
v. United
419 U.S.
Liles
94,
95 S.Ct.
impressed
In
that.
is—was
(1974).
42 L.Ed.2d
correct,
I
him
Clark was
told
Mr.
thought
your you
privately that
I
that
—
part:
1. Rule
reads in
totally
quite
I
shaken
it.
am not
were
probation
service of
the court
sure,
my impression
however Mr.
presentence investigation
shall make
you
reading
pre-
this [the
of
is correct
I—
report
and
imposition
court before the
it,
report]
discussing
I have
sentence
granting
of sentence or the
your
reservations
about
some
serious
unless,
permission
bation
this.
I think
and the
attitude about
court,
presen-
the defendant waives a
this,
you
pretty blunt about
Court is
may
tence
acting
only
way and
in Court
court finds that there is in the record infor-
doing something else.
.
.
.”
meaningful
mation sufficient to enable the
sentencing discretion,
exercise of
court
give
“I
[the
explains
,
record.
weight
certainly.
.
either
evidence]
going
I
I’m
do
well
think what
report
justified
pre-sentence
from the
32(c)(3)(A) provides:
2. Rule
itself,
any
disregarding
testimony
other
imposing
Before
sentence
,
presented
.
I will do .
is
will be well within
tions and it’s
report
.
. what
upon request permit
defendant,
shall
or
[statutory]
those
limita-
represented,
if
his counsel
he
pre-sentence
based on the
report
presentence investiga-
read the
tion exclusive
my
feel
actions
and I
any
recommendation as
get
justified.
did
think the Court
sentence,
but not to the extent that in
you
impression of
Yates and it
false
Mr.
opinion
your
largely
appearance in Court
from
diagnostic opinion
might
contains
ously disrupt
which
seri-
pre-sentence report
up.'
doesn’t back
that the
I
rehabilitation,
program
your
outside of
don’t think
actions
upon
sources of information
promise
obtained
Court have
semblance
—bear
confidentiality,
other in-
your
in Court.”
actions
which, disclosed, might
formation
result in
otherwise,
harm, physical or
841(b)(1)(A)
imprison-
authorizes
U.S.C.
persons;
or other
court shall afford
years,
not more than fifteen
a fine
or his counsel an
the defendant
to-
$25,000, or both.
of not more than
and, at
comment thereon
the
the discretion of
court,
testimony
to introduce
241, 69
Williams New
relating
any alleged
fac-
(1949), supra;
other
tual
presentence report.
mation (c)(3)(A) Rules in- intended that a de-
dicate opportunity meaningful- have an
ly challenge information
sentencing judge. challenge Such can be when the material is contained in made DAKOTA NATIONAL BANK AND however, may, It CO., Banking TRUST a National deny anything but a factu- impossible to do Association, Appellant, is which the defendant
al immediately time confronted for first NATIONAL FIRST BANK AND TRUST especially This true prior FARGO, OF COMPANY National where, case, as in the instant Association, Banking Smith, and James declarant was even identified. original Comptroller Currency, Appellees. persuaded I am not here permit this influence did not information to Government was asked at his decision. The United States Court of argument whether a sentence of oral four Eighth Circuit. normal years was a the Eastern Jan. Submitted of Illinois for such an offense. It District that a normal sentence in the district stated than type offense more four for an Rehearing and Rehearing En Banc generally has a because offender Denied criminal record. The Government prior a usual sentence for
never stated what be in with no record would
person argument, At oral im-
district. year four sentence was not that this
plied
usual; implication can be found in its response question,
speculation,