United States v. Gino Rosciano

499 F.2d 173, 37 A.L.R. Fed. 265, 1974 U.S. App. LEXIS 7578

Opinions

PER CURIAM.

This matter came before us as a result of our May 2, 1974, order granting an en banc rehearing of the panel decision herein reported at 499 F.2d 166. The question involved is whether a district judge, who has not been requested by counsel to do so, is nevertheless required by Rule 32(c)(1) of the present Federal Rules of Criminal Procedure to give explicit reasons for his denial of a presentence report before imposing sentence after considering mitigating factors. The panel decision is not in conflict with any previous decision of this Court.

The function of en banc hearings is not to review alleged errors for the benefit of losing litigants. Western Pacific R. R. Corp. v. Western Pacific R. R. Co., 345 U.S. 247, 256-259, 73 S.Ct. 656, 97 L.Ed. 986; F.R.A.P. 35(b). Even so, it may not be inappropriate to note that after a sentence reduction hearing, defendant was accorded the possibility of immediate parole under 18 U.S.C. § 4208(a)(2). The Government has advised us that on his prison entry, the Parole Board will be given information equivalent to that in a presentence report. Accordingly, the importance of the case even to defendant is reduced.

Barring some Congressional delay, effective August 1, 1974, an amendment to Criminal Rule 32(c)(1) will require presentence reports “unless the court otherwise directs for reasons stated on the record.” No decision in this case will control under the proposed rule, so that very few future cases will be affected. Similarly, any decision here will affect few past cases, because Rule 35 imposes a 120-day limitations period on motions to correct sentences imposed in an illegal manner.

Consequently, en banc hearing is not necessary to maintain uniformity of our decisions, and the case is not of exceptional importance. See F.R.A.P. 35(a). We conclude that the rehearing en banc was improvidently ordered. Hence our order of May 2, 1974, is withdrawn.