United States v. Peter Marines

535 F.2d 552, 1976 U.S. App. LEXIS 11409

• Court: Court of Appeals for the Tenth Circuit
• Decided: May 11, 1976
• Docket: 75-1682
• Status: Published

Opinions

PER CURIAM.

Appellant Marines entered a plea of guilty on August 1, 1975 to violation of 21 (a), possession of marijuana. He was sentenced to one year imprisonment, the maximum sentence to imprisonment permitted. The issues presented for our consideration in this appeal relate only to the severity of the sentence. Marines contends that, when the district court imposed sentence, it gave improper consideration to the fact that Marines benefited from a plea bargain by which, in return for his plea of guilty to the misdemeanor charge, a felony indictment based upon the same set of facts would be dismissed. Marines also contends that the district court failed to give proper consideration to various mitigating factors.

A sentence imposed by a federal judge is ordinarily not subject to review if within statutory limits. Roddy v. United States, 509 F.2d 1145 (10th Cir. 1975). However, a sentence is subject to review if founded at least in part on misinformation of a constitutional magnitude. United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972). Here, Marines contends only that the district court improperly considered the relative benefits accruing to each of the parties to the plea bargain and makes no suggestion that misinformation of constitutional dimensions was involved.

We find no merit to any of Marines’ contentions regarding factors considered or not considered by the district court when imposing sentence. A district court has broad discretion when imposing sentence and may and should consider matters other than a defendant’s guilt of the particular crime. United States v. Majors, 490 F.2d 1321 (10th Cir. 1974), cert. denied 420 U.S. 932, 95 S.Ct. 1136, 43 L.Ed.2d 405. See also, Williams v. Oklahoma, 358 U.S. 576, 79 S.Ct. 421, 3 L.Ed.2d 516 (1959); Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1760 (1949); United States v. Metz, 470 F.2d 1140 (3rd Cir. 1972), cert. denied 411 U.S. 919, 93 S.Ct. 1558, 36 L.Ed.2d 311; United States v. Sweig, 454 F.2d 181 (2nd Cir. 1972). It was perfectly acceptable for the district court to consider the fact that a felony indictment, based upon the same set of facts, was dismissed pursuant to a plea bargain by which Marines pleaded guilty to a misdemeanor. We find no evidence that the district court disregarded evidence presented in mitigation of sentence.

The question of whether a sentencing court may take into consideration the fact that an indictment on a more serious charge is to be dismissed in exchange for a plea of guilty to a less serious charge was considered by this court in United States v. Majors, supra. The facts of that case are as follows: Majors escaped from a federal institution while a prisoner there. While in an escape status, Majors stole an automobile which he drove across a state line. Upon apprehension, he was initially charged with a Dyer Act offense which was dismissed when Majors pleaded guilty to an escape charge. When imposing sentence for the escape charge, the sentencing court made reference to the Dyer Act offense. In appealing imposition of sentence, Majors argued that the sentencing court should not have taken into consideration the fact that the indictment on the Dyer Act offense had been dismissed as a result of a plea bargain by which Majors was to plead guilty to the escape charge. In response to this argument, this court stated that “[t]he dismissed indictment and the charge contained in it are within the kind of information which a court may properly consider in passing sentence. The plea bargain and the indictment dismissal resulting from it did not and, indeed, could not, deprive the judge of the right and probably the duty of giving consideration to it.” United States v. Majors, supra at 1324. The Second Circuit reached the same conclusion on a similar set of facts in United States v. Doyle, 348 F.2d 715 (2nd Cir. 1965), cert. denied 382 U.S. 843, 86 S.Ct. 89, 15 L.Ed.2d 84.

When this appeal was docketed, the parties were notified that the court was considering summarily affirming the judgment and sentence. They were additionally extended the opportunity to file memoranda in support of their respective positions. Only appellant Marines has responded with such a memorandum. After carefully and thoroughly reviewing Marines’ memorandum and the record on appeal, we are convinced that the judgment and sentence of the district court should be affirmed based upon the authority of United States v. Majors, supra, and United States v. Doyle, supra.

The judgment of the district court is affirmed.