Bernard Vincent Montgomery v. United States

Tenth Circuit

Bernard Vincent Montgomery v. United States

344 F.2d 955, 1965 U.S. App. LEXIS 5721

CourtCourt of Appeals for the Tenth Circuit

DecidedMay 3, 1965

Docket8019_1

StatusPublished

Cited by2 cases

This text of 344 F.2d 955 (Bernard Vincent Montgomery v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bernard Vincent Montgomery v. United States, 344 F.2d 955, 1965 U.S. App. LEXIS 5721 (10th Cir. 1965).

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Opinion

PER CURIAM.

This appeal is taken from an order of the District Court for the District of New Mexico denying to appellant, after a full evidentiary hearing, any relief upon claims asserted by motion to vacate sentence under 28 U.S.C. § 2255. Appellant, now serving a maximum sentence imposed after entry of plea of guilty to a violation of 26 U.S.C. § 4705(a) (sale of narcotics), asserts that his plea of guilty was not voluntarily entered, that he was denied the right of allocution pri- or to imposition of sentence, and that the remarks of the trial court at time of imposition of sentence were so fraught with personal bias as to constitute a denial of due process.

Appellant’s first two contentions are not novel and may be summarily determined to be completely without merit. The record clearly supports the trial court’s finding that the subject plea was voluntarily and understandingly entered after appellant had received the careful and conscientious advice of his retained counsel. And the record further reflects that the right of allocution was not denied to appellant.

The remarks of the sentencing trial judge 1 were indeed emphatic, couched in the vernacular, and were undoubtedly personally offensive to the appellant. However, a trial judge may and often should appraise both the offense and the offender at the time of sentencing and may use emphatic and forceful language which is understandable to the offender. See Simmons v. United States, 3 Cir., 302 F.2d 71. And certain it is that one who offends, as in this case most seriously, against the law has no constitutional right to be free from personal *956 offense when his crime and character are aired. Appellant’s sentence is not invalid because of the sentencing court’s remarks.

The judgment is affirmed.

1

. The sentencing judge is now deceased and was, of course, not the judge from whose judgment the instant appeal is taken.

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PER CURIAM.

This appeal is taken from an order of the District Court for the District of New Mexico denying to appellant, after a full evidentiary hearing, any relief upon claims asserted by motion to vacate sentence under 28 U.S.C. § 2255. Appellant, now serving a maximum sentence imposed after entry of plea of guilty to a violation of 26 U.S.C. § 4705(a) (sale of narcotics), asserts that his plea of guilty was not voluntarily entered, that he was denied the right of allocution pri- or to imposition of sentence, and that the remarks of the trial court at time of imposition of sentence were so fraught with personal bias as to constitute a denial of due process.

Appellant’s first two contentions are not novel and may be summarily determined to be completely without merit. The record clearly supports the trial court’s finding that the subject plea was voluntarily and understandingly entered after appellant had received the careful and conscientious advice of his retained counsel. And the record further reflects that the right of allocution was not denied to appellant.

The remarks of the sentencing trial judge 1 were indeed emphatic, couched in the vernacular, and were undoubtedly personally offensive to the appellant. However, a trial judge may and often should appraise both the offense and the offender at the time of sentencing and may use emphatic and forceful language which is understandable to the offender. See Simmons v. United States, 3 Cir., 302 F.2d 71. And certain it is that one who offends, as in this case most seriously, against the law has no constitutional right to be free from personal *956 offense when his crime and character are aired. Appellant’s sentence is not invalid because of the sentencing court’s remarks.

The judgment is affirmed.

1

. The sentencing judge is now deceased and was, of course, not the judge from whose judgment the instant appeal is taken.

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Bluebook (online)

344 F.2d 955, 1965 U.S. App. LEXIS 5721, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bernard-vincent-montgomery-v-united-states-ca10-1965.

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