Edward Howard, Jr. v. United States

247 F.2d 537

• Court: Court of Appeals for the D.C. Circuit
• Decided: August 16, 1957
• Docket: 13719
• Status: Published

Opinions

PER CURIAM.

The appeal is from the denial of a motion under 28 U.S.C. § 2255 (1952). Two questions are presented. The first is whether appellant’s sentence should be vacated because he is required to serve consecutively two terms of imprisonment, one for three years to nine years for forgery of a document and the other for three years to nine years for uttering the same forged document. 18 U.S.C. § 495 (1952). The validity of the sentences we think is sustained by our recent decision in Gore v. United States, 100 U.S.App.D.C. 315, 244 F.2d 763; cf. Prince v. United States, 352 U. S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370. But the severity of the total sentence impels Judges Fahy and Washington to refer with approval to the concurring opinion in Gore, which states a position they think applicable here. The second question is whether the sentence should be vacated because appellant was not personally afforded an opportunity to make a statement in his own behalf and to present information in mitigation of punishment before the court imposed sentence. Couch v. United States, 98 U.S.App.D.C. 292, 235 F.2d 519, requires that this question be answered adversely to appellant. The practice there initiated is not applicable to this case, in which the sentence antedated that decision.

Judge Fahy, except for this Court’s decision in Couch, would remand for re-sentence in accordance with the views expressed by him in his separate opinion in Couch.

Affirmed.