United States v. Michael Winer

Fifth Circuit

United States v. Michael Winer

459 F.2d 975, 1972 U.S. App. LEXIS 9827

CourtCourt of Appeals for the Fifth Circuit

DecidedMay 1, 1972

Docket71-3497

StatusPublished

This text of 459 F.2d 975 (United States v. Michael Winer) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

United States v. Michael Winer, 459 F.2d 975, 1972 U.S. App. LEXIS 9827 (5th Cir. 1972).

Pincite

Opinion

PER CURIAM:

This case presents a tragic story of a young law student who entered a plea of guilty to possession of marijuana. The appellant, Michael J. Winer, a law student at the University of Florida was charged with unlawfully, knowingly and intentionally possessing a quantity of marijuana in violation of 21 U.S.C. § 844(a). Represented by privately retained counsel, the defendant entered a plea of guilty and was sentenced to the custody of the Attorney General for .an indeterminate period under the Federal Youth Corrections Act, 18 U.S.C. § 5010(b). 1 The record indicates that the plea was entered knowingly and voluntarily. On this appeal the appellant contends that the district court grossly abused its discretion in imposing such a harsh sentence upon him.

At the sentencing hearing Winer admitted that he had sold one ounce of marijuana to an undercover agent, but indicated that the sale was made under circumstances of duress or entrapment. On appeal he argues that the district court gave undue weight to the fact of sale in sentencing him to an indetermi *976 nate commitment as a first offender convicted of unlawful possession of marijuana. As we view the cases we are unable to conclude that there was a gross abuse of discretion by the trial court even though this court may not have imposed so severe a sentence.

Although we feel bound to affirm the judgment, we do give emphasis to Rule 35 F.R.Crim.P. which permits a district court in its discretion to reduce the sentence within 120 days after receipt by the court of a mandate issued upon affirmance of the judgment. While that discretion is in the trial court, and in that court alone, it appears that this may be an appropriate case for reconsideration under Rule 35. However considerations based upon compassion and mercy are for the trial court and we leave that determination to the district judge in this case.

Judgment affirmed.

1

. A youth offender committed under this section may be imprisoned for not more than four years, plus an additional two years paroled supervision upon release. 18 U.S.C. § 5017(c).

Free access — add to your briefcase to read the full text and ask questions with AI

PER CURIAM:

This case presents a tragic story of a young law student who entered a plea of guilty to possession of marijuana. The appellant, Michael J. Winer, a law student at the University of Florida was charged with unlawfully, knowingly and intentionally possessing a quantity of marijuana in violation of 21 U.S.C. § 844(a). Represented by privately retained counsel, the defendant entered a plea of guilty and was sentenced to the custody of the Attorney General for .an indeterminate period under the Federal Youth Corrections Act, 18 U.S.C. § 5010(b). 1 The record indicates that the plea was entered knowingly and voluntarily. On this appeal the appellant contends that the district court grossly abused its discretion in imposing such a harsh sentence upon him.

At the sentencing hearing Winer admitted that he had sold one ounce of marijuana to an undercover agent, but indicated that the sale was made under circumstances of duress or entrapment. On appeal he argues that the district court gave undue weight to the fact of sale in sentencing him to an indetermi *976 nate commitment as a first offender convicted of unlawful possession of marijuana. As we view the cases we are unable to conclude that there was a gross abuse of discretion by the trial court even though this court may not have imposed so severe a sentence.

Although we feel bound to affirm the judgment, we do give emphasis to Rule 35 F.R.Crim.P. which permits a district court in its discretion to reduce the sentence within 120 days after receipt by the court of a mandate issued upon affirmance of the judgment. While that discretion is in the trial court, and in that court alone, it appears that this may be an appropriate case for reconsideration under Rule 35. However considerations based upon compassion and mercy are for the trial court and we leave that determination to the district judge in this case.

Judgment affirmed.

1

. A youth offender committed under this section may be imprisoned for not more than four years, plus an additional two years paroled supervision upon release. 18 U.S.C. § 5017(c).

Cite This Page — Counsel Stack

Bluebook (online)

459 F.2d 975, 1972 U.S. App. LEXIS 9827, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-michael-winer-ca5-1972.

Opinion

Related

Cite This Page — Counsel Stack