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holding that the court could, in its discretion, consider the fact that the defendant was arrested while on bail awaiting trial in determining what sentence to impose, even though the arrest did not result in an indictment of the defendant
Summary of this case from Norvil v. StateOpinion
No. 73-3960. Summary Calendar.
Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409.
May 9, 1974.
Joseph E. R. Houle, pro se.
Anthony J. P. Farris, U.S. Atty., James R. Gough, Asst. U.S. Atty., Houston, Tex., for respondent-appellee.
Appeal from the United States District Court for the Southern District of Texas.
Before BELL, SIMPSON and MORGAN, Circuit Judges.
This appeal is from denial of a motion in the nature of one seeking relief under 28 U.S.C.A. § 2255. Appellant claims that the sentence was based on impermissible considerations, to wit, the fact of his arrest while on bail awaiting trial, and a series of Canadian convictions allegedly suffered without the benefit of counsel.
The claim that these matters were considered is based on the following discussion at sentencing:
"The Court: All right, sir. Let's see, you were arrested for this offense back in July, was it not?
"The Defendant: Yes, sir.
"The Court: And were you out on bond, presentence report tells me you were picked up again with ten pounds of marijuana. Is that right?
"The Defendant: Yes, Your Honor.
"The Court: You were arrested on that charge, I am not asking if you were guilty or not.
"Mr. Hall (Appellant's attorney): There has been no indictment returned on that offense, your Honor. He and a number of other people were involved.
"The Court: You have a long record going back to 1949 in Canada. On counts one and two jointly, I impose a period of confinement of twenty years to be served."
As for the subsequent arrest, it is clear that a sentencing judge's wide discretion permits consideration of arrests even if, as here, they do not result in indictment. See United States v. Marcello, 5 Cir., 1970, 423 F.2d 993, 1012; United States v. Sweig, 2 Cir., 1972, 454 F.2d 181.
As for the Canadian convictions, appellant urges that United States v. Tucker, 1972, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592, is applicable. We think his reliance is misplaced. That case, which prohibits sentences based on prior convictions in which the right to counsel was violated, turns on Gideon v. Wainwright, 1963, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, which established that such convictions have been unconstitutionally obtained. The key to Tucker is the Court's belief that a sentencing judge would be faced with a "dramatically different" situation if he knew that "[i]nstead of confronting a defendant who had been legally convicted of . . . previous felonies," he was "dealing with a man who . . . had been unconstitutionally imprisoned" for a period of time. 404 U.S. at 448, 92 S. Ct. at 592, 30 L.Ed.2d at 597.
Gideon, of course, is based on the United States Constitution, and cannot be imposed upon Canadian proceedings. That being true, it cannot be said that the sentencing judge should view appellant as a man who has been heretofore illegally incarcerated, and Tucker is thus inapplicable.
Further, we cannot say that the rationale of Gideon is applicable to Canadian proceedings. As stated in Tucker, 404 U.S. at 447, 92 S.Ct. at 591, 30 L.Ed.2d 596, n. 5, that rationale is capsulized in the following quote from Gideon:
"[R]eason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured of a fair trial unless counsel is provided for him." 372 U.S. at 344, 83 S.Ct. at 796, 9 L.Ed.2d at 805.
Gideon turned on experience with and judgments about " our adversary system of criminal justice" (emphasis added). We decline to assume that such experience may be the basis for a judgment that a foreign system, utilizing procedures with which we are unfamiliar, has failed to provide a fair trial if it does not conform with our right-to counsel concepts.
As with the subsequent arrest, the previous Canadian convictions were properly considered in the court's exercise of discretion. While appellant was free to submit explanatory information, as he has done, it is not within the power of this court to review his sentence, even if it has not been lessened by his explanations. See United States v. Hartford, 5 Cir., 1973, 489 F.2d 652, 654 (distinguishing between an appellate court's review of sentence duration per se and its review of the judicial process by which that sentence is determined).
Affirmed.