United States v. Steven Edward Mollet

510 F.2d 625

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 30, 1975
• Docket: 72-2945, 72-3135
• Status: Published

Opinions

OPINION

BARNES, Circuit Judge:

This is an appeal from three convictions of conspiracy to introduce marijuana into the United States. We affirm the convictions, but vacate the sentences.

On May 9, 1972, oral argument was heard on the appeal. On May 25, 1972, we reserved, by order, our opinion upon the applicability of United States v. Almeida-Sanchez, 452 F.2d 459 (9 Cir. 1971), because Almeida was on appeal, awaiting determination by the Supreme Court.

I

On June 21, 1973, the Supreme Court, ruled in Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 (1973), that a “roving search” of an automobile, without a warrant and without probable cause, when not a border search, or the functional equivalent thereof, violated the Fourth Amendment.

On September 5, 1973, we handed down an opinion in this case holding that since this case did not involve a roving search but occurred at San Onofre immigration checkpoint, Almeida-Sanchez did not apply and the search was valid. On October 31, 1973, an order was entered by this court en banc, vacating the decision of the panel herein, withdrawing the assignment theretofore made to this panel and reassigning the case to the court en banc. On May 9, 1974, the court en banc decided United States v. Bowen, 500 F.2d 960, cert. granted, 419 U.S. 824, 95 S.Ct. 40, 42 L.Ed.2d 47 (October 15, 1974) (No. 73-6848), holding, contrary to the views hereinbefore expressed by this panel, that the Supreme Court rule in Almeida-Sanchez did apply to fixed checkpoints as well as to roving searches unless the fixed checkpoint was the functional equivalent of the border, but that as to fixed checkpoint searches the Supreme Court rule in Almeida-Sanchez would apply prospectively only. This court, on June 14, 1974, in United States v. Morgan, 501 F.2d 1351 (en banc), held that the checkpoint at San Onofre is not the functional equivalent of the border. On July 22, 1974, this court en banc ordered this case returned to the original panel for disposition. Accordingly we proceed pursuant to the remand.

We are now controlled by the decision of the court en banc in Bowen, supra, holding that searches at fixed checkpoints not the functional equivalent of the border are subject to the ruling of the Supreme Court in Almeida-Sanchez, but effective only as of the date of that opinion. Since the search here occurred on March 8, 1972, prior to the decision in Almeida-Sanchez on June 21, 1973, it was valid under the law of the circuit as of that date.

II

At the time of oral argument the court, on its own motion, raised the question of the legality of imposing both fines and confinement in sentences rendered on September 8, 1972, under the Federal Youth Corrections Act, 18 U.S. C. §§ 5005 to 5024.

Yamron (20 years old), was fined $5,000, and committed for supervision under 18 U.S.C. § 5010(b), and sentenced to 6 months, plus 5 years probation.

Mollet (22 years old), was fined $1,000 and imposition of sentence as to imprisonment suspended under § 5010 (a), with 5 years probation.

Moxley (25 years old), was fined $2,-000, and imposition of sentence as to imprisonment suspended under § 5010 (a) with 5 years probation.

On March 5, 1973, 6 months after date of sentencing, the consolidated cases of United States v. Hayes, and United States v. Meicke were decided by a panel of this court (474 F.2d 965), holding that punitive fines are inconsistent with the rehabilitative theory and provisions of the Youth Corrections Act; and hence that a trial court’s election to commit a youthful offender for rehabilitative treatment and supervision under the alternative sentencing provisions of the Federal Youth Corrections Act forecloses the imposition of retributive punishment under other provisions of the Act, including the imposition of a fine (and we would assume, imprisonment).

We are bound by the previous opinion of this Court in United States v. Hayes and Meicke, supra.

Therefore, we affirm the convictions of each defendant, but each sentence is vacated and each case is remanded to the district court for the re-sentencing of each defendant.