United States v. Wesley Clyde Brown

479 F.2d 1170, 1973 U.S. App. LEXIS 9779
CourtCourt of Appeals for the Second Circuit
DecidedMay 23, 1973
Docket739, Docket 73-1068
StatusPublished
Cited by52 cases

This text of 479 F.2d 1170 (United States v. Wesley Clyde Brown) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second 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. Wesley Clyde Brown, 479 F.2d 1170, 1973 U.S. App. LEXIS 9779 (2d Cir. 1973).

Opinions

MANSFIELD, Circuit Judge:

By decision filed on December 6, 1972, United States v. Brown, D. C. Cir., 470 F.2d 285, we vacated a judgment of the United States District Court for the Eastern District of New York, Walter Bruchhausen, Judge, sentencing Wesley Clyde Brown to a term of two and one-half years imprisonment upon his plea of guilty to a one-count indictment charging him with refusal to report for induction in violation of 50 U.S.C.App. § 462(a). The case was remanded for re-sentencing by another judge. We held that the refusal of the sentencing judge to make the presentence report available to Brown, pursuant to a uniform policy the judge had followed, constituted a failure to exercise his discretion under Rule 32(c)(2), F.R.Cr.P., which we found requires the discretion to be “exercised on a case-by-case basis, not by a blanket policy of non-disclosure.” 470 F.2d at 288.

Upon remand the case was assigned by lot to Judge Travia, who made the presentence report available to Brown and his counsel before sentencing and, after holding a sentencing hearing, re-sentenced Brown to the same term that had previously been imposed. From this second sentence Brown, who has been incarcerated since January 27, 1972, appeals. He contends that Judge Travia, upon the resentencing, committed various errors which necessitate still anoth[1172]*1172er resentencing. We cannot agree and must affirm the judgment of the district court.

Since the background of the case up to the point of our remand is set forth in our earlier opinion, we need not repeat it here. Upon this appeal Brown urges that Judge Travia erred in (1) failing' to give any legally justifiable reasons for reimposing the same sentence, (2) failing to identify the facts in the presentence report relied on by him, (3) basing the sentence on Brown’s political beliefs and on erroneous information in the presentence report, (4) failing to “redo” the entire sentencing process, and (5) abusing his sentencing discretion in reimposing the two and one-half year sentence.

To the extent that Brown asks us to review on the ground that the sentence was excessive, we must decline the invitation. We are still bound by the basic principle against appellate review of sentences except in extraordinary circumstances. United States v. Tucker, 404 U.S. 443, 447, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972); Gore v. United States, 357 U.S. 386, 393, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958); Blockburger v. United States, 284 U.S. 299, 305, 52 S. Ct. 180, 76 L.Ed. 306 (1932). Although cracks in the wall are beginning to develop, see Woosley v. United States, 478 F.2d 139 (8th Cir. 1973) (en banc) (5-year sentence imposed pursuant to a rigid policy upon a Jehovah’s Witness for refusing induction vacated on ground that district court had “manifestly or grossly abused its discretion” and “[t]he severity of the sentence shocks the judicial conscience”), the present case is not an appropriate one for departure from the policy against appellate review. Here the sentence was one-half of the permissible five-year statutory limit. In characterizing the two and one-half year sentence imposed on Brown as “harsh” in our earlier opinion —a view from which we do not retreat —we were referring to that fact as an additional reason for requiring the sentencing judge to exercise his discretion on an individual basis in this case. That discretion has now been exercised in favor of full disclosure of the presentence report with respect to Brown, and Judge Travia, in imposing sentence, has acted within the discretionary limits afforded to the district_jmurt, which are broad. United States v. Tucker, 404 U. S. 443, 447, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972); United States v. Sweig, 454 F.2d 181, 183-184 (2d Cir. 1972); McGee v. United States, 462 F.2d 243, 245 (2d Cir. 1972), Absent the sentencing judge’s reliance on constitutionally impermissible factors or upon material inaccuracies, it is not our function to review a sentence falling within statutory limits. United States v. Mitchell, 392 F.2d 214 (2d Cir. 1968); Blockburger v. United States, 284 U.S. 299, 305, 52 S. Ct. 180, 76 L.Ed. 306 (1932); United States v. Holder, 412 F.2d 212, 214 (2d Cir. 1969).

Brown’s contention that the district court erred by failing to state the reasons for reimposing the same sentence and by failing to designate the portions of the presentence report relied upon by it must also be rejected. Were we writing on a clean slate, we might well be persuaded in favor of a requirement that the sentencing judge state his reasons. Such a rule would be “a powerful safeguard against rash and arbitrary decisions” at this crucial stage of the criminal process where the defendant’s liberty is at stake. M. Frankel, Criminal Sentences — Law Without Order 41 (Hill and Wang 1972). It would serve “to promote thought by the decider, to compel him to cover the relevant points, to help him eschew irrelevancies —and, finally, to make him show that these necessities have been served.” Id. at 40. It would also promote fairness by minimizing the risk that the sentencing judge might rely on misinformation or on inaccuracies in the presentence report. See United States v. Needles, 472 F.2d 652 (2d Cir. 1973). If a misapprehension on the court’s part were disclosed, the defendant and his counsel [1173]*1173would then have the opportunity to answer and explain, pointing out the error. A Sphinx-like silence on the court’s part precludes anyone (including the parties, the judge, and an appellate tribunal) from learning whether he acted in error. Furthermore, a statement of reasons by the court could prove to be of considerable assistance to prison and parole au-thoritites in later determining the type of institution in which the defendant should be incarcerated and the time and conditions of parole.

In the present ease it would have been of considerable assistance to have had the rationale of the conscientious sentencing judge, since the information found in the presentence report and accompanying documents, all of which we have examined, is for the most part favorable to Brown. He has no known criminal record, has frankly admitted his offense, and has based his refusal to report for induction on moral grounds. The report describes him as a person who has had a better than average background and education. He has enjoyed the support of his parents and siblings, an average scholastic rating, and a good behavior record in school. He is not addicted to narcotics and, prior to his incarceration, he was reasonably self-supporting.

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Bluebook (online)
479 F.2d 1170, 1973 U.S. App. LEXIS 9779, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-wesley-clyde-brown-ca2-1973.