Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 71-CR-1108 BERNARD M. DECKER, Judge.
Swygert, Chief Judge, Hastings, Senior Circuit Judge, and Pell, Circuit Judge. Swygert, Chief Judge, dissenting.
HASTINGS, Senior Circuit Judge.
This case presents a single question for review on appeal, viz : whether the trial court's refusal to order a presentence report was an abuse of discretion. However, because of the various ramifications of this issue argued here, we shall detail relevant parts of the course of this litigation in order to clarify the situation in what otherwise might be considered a frivolous appeal.
Defendant Gino Rosciano was charged in a two-count indictment. Count I charged that he and nine other men*fn1 conspired to possess goods stolen from an interstate freight shipment in violation of Title 18, U.S.C. § 371. Count II charged a violation of the substantive offense, Title 18 U.S.C. § 659. A trial by jury resulted in a verdict of acquittal on the Count I conspiracy charge, and a verdict of guilty on the Count II substantive offense. Judgment was entered on this verdict and defendant was sentenced to a term of six years imprisonment on March 3, 1972.
Defendant appealed his conviction to this court. On February 16, 1973, a division of our court affirmed his conviction in an unpublished order, 474 F.2d 1350. The only issues raised on that appeal were the giving and refusal of certain instructions and the identification procedure used with respect to defendant prior to the trial. It is conceded that no issues were raised concerning the denial of a presentencing investigation, the denial of probation or the severity of the six-year sentence imposed. Our court denied a petition for rehearing on March 9, 1973. A timely petition for a writ of certiorari was denied by the Supreme Court on June 18, 1973, 412 U.S. 948, 93 S. Ct. 3007, 37 L. Ed. 2d 1001. The mandate of this court was filed in the district court on June 25, 1973.
Three days after the mandate issued defendant filed a motion in the district court for reduction of sentence and for admission to probation or, in the alternative, for such further and different relief as the court might deem proper. A passing reference was made therein that, at the time of initial sentencing, no presentence investigation had been made. Defendant's motion requested that a presentence investigation be ordered for the purpose of verifying the representations made therein and sought a hearing on the motion. A hearing was held July 3, 1973, and the court on that date ordered that the sentence be modified so that defendant could serve his six-year sentence under the provisions of Title 18, U.S.C. § 4208(a) (2), thereby making defendant eligible for immediate parole.
Thereafter, on July 12, 1973, defendant filed a motion for stay of execution pending appeal, or, in the alternative, for 30 days in which to wind up his business affairs. The court held a hearing thereon and granted an extension of stay of execution for two weeks, until July 27, 1973.
On July 11, 1973, defendant filed notice of appeal from the order of July 3, 1973, modifying his six-year sentence. His notice of appeal further stated that he was appealing from that part of such order which, "by implication, [denied] that portion of the * * * Motion for reduction of sentence pursuant to Rule 35 of the Federal Rules of Criminal Procedure which sought a presentence investigation, a hearing on said Motion and probation."
It is now apparent that defendant claims prejudice because the trial court denied his request for a presentence investigation and report in the instant proceeding. It is also clear that he is relying on Rule 35, Fed. R. Crim. P., hereinabove referred to. Rule 35 reads:
The court may correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner within the time provided herein for the reduction of sentence. The court may reduce a sentence within 120 days after the sentence is imposed, or within 120 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within 120 days after entry of any order or judgment of the Supreme Court denying review of, or having the effect of upholding, a judgment of conviction. The court may also reduce a sentence upon revocation of probation as provided by law.
Rule 32(c) (1), Fed. R. Crim. P., deals with the making of presentence investigations and states, inter alia, that this shall be done by the probation service and reported to the court "before the imposition of sentence or the granting of probation unless the court otherwise directs."
On brief and in oral argument, defendant has further refined the crux of the issue presented, viz. : whether the trial court erred in failing "to permit, and consider, a pre-sentence investigation pursuant to Federal Rule of Criminal Procedure 32(c) (1) without indicating the reasons for such a refusal so that they can be subject to review." (Emphasis added.)
Here we are faced with an admittedly narrow point in the sentencing procedure. The district court, after an affirmance of conviction and the issuance of mandate, entertained defendant's motion for reduction of sentence and for the granting of probation or other proper relief. A hearing was held as requested. After considering the motion, which set out in great detail defendant's own characterization of his reasons for relief, and hearing counsel on the question of mitigation, the trial court took the matter under advisement until later in the day. The court thereupon, in effect, sustained the motion for relief by modifying the sentence as hereinabove set out, making defendant eligible for immediate parole. Defendant contends that this is not enough because his showing, had it been supported by a presentence ...