United States v. Frank Richard Del Piano

593 F.2d 539

• Court: Court of Appeals for the Third Circuit
• Decided: March 7, 1979
• Docket: 78-1922
• Status: Published

Opinions

OPINION OF THE COURT

PER CURIAM.

This case has previously been before the court in Del Piano v. United States, 575 F.2d 1066 (3rd Cir. 1978), wherein we remanded defendant’s case for a de novo sentencing hearing to the district judge who had previously denied, without a hearing, Del Piano’s Motion to Vacate Sentence pursuant to 28 U.S.C. § 2255. The questions now presented us for decision are (1) whether the district court erred in failing to transfer the case to another judge upon remand, and (2) whether the failure of the district judge to state his reasons for his sentence constituted error as a matter of law.

Because we find the procedures employed by the district judge upon remand to be appropriate, we affirm.

The first contention urged by defendant is that the district judge upon remand erred in failing to transfer the case for re-sentencing. The argument is without merit. This court has, in the past, sanctioned re-sentencing by the district judge who originally entertained, a defendant’s § 2255 motion. United States ex rel. Fletcher v. Walters, 526 F.2d 359 (3rd Cir. 1975); United States v. Radowitz, 507 F.2d 109 (3rd Cir. 1974). In light of the district judge’s careful and thorough handling of the sentencing hearing on remand, we are not persuaded to deviate from our prior approval of such a practice.

Appellant further argues that the district judge’s sentence is defective as a matter of law since no reasons were articulated to support the imposition of the sentence. While we are mindful of the substantial benefit that a statement of reasons for a sentence may have, see, e. g., United States v. Bazzano, 570 F.2d 1120, 1130 (3rd Cir. 1977) (Adams, J., concurring), it is clear there is no affirmative requirement, in this circuit, that every district judge give an explanation for each sentence imposed. United States v. Lee, 532 F.2d 911, 916 (3rd Cir. 1976); Government of Virgin Islands v. Richardson, 498 F.2d 892, 894 (3rd Cir. 1974). Thus, since the sentence imposed was within the statutory limitation and there is no defect in the sentencing procedure, this court will not interfere with the trial judge’s discretion as to the sentence imposed. United States v. Lee, supra at 916; Government of Virgin Islands v. Richardson, supra at 894.

Accordingly, after consideration of all submissions of the parties, the sentence of the district court is affirmed.