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United States v. Felder

decided: April 25, 1983.

UNITED STATES OF AMERICA
v.
TERRY FELDER, APPELLANT



ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA.

Seitz, Chief Judge, Higginbotham and Sloviter, Circuit Judges.

Author: Sloviter

Opinion OF THE COURT

SLOVITER, Circuit Judge.

Appellant Terry Felder challenges both the proceedings leading to his conviction and his sentence under the dangerous special offender statute, 18 U.S.C. § 3575. We find no reversible error relating to Felder's conviction.*fn1 With regard to Felder's claim that the sentence was disproportionate in severity to the maximum sentence otherwise provided for his felony, we vacate and remand for resentencing because the trial court gave no express consideration to the statutory requirement of proportionality.

I.

Terry Felder was convicted by a jury of one count of violating 18 U.S.C. App. § 1202(a)(1), which proscribes possession of firearms by a convicted felon. The maximum sentence set forth for this offense is two years. Felder, however, was alleged by the government to be a dangerous special offender within the meaning of 18 U.S.C. § 3575. A defendant is characterized as a special offender if s/he is a recidivist (essentially one who has committed two or more previous felonies, one of them within the last five years); a professional criminal (if the current felony arose from a pattern of conduct "which constituted a substantial source of his income, and in which he manifested special skill or expertise"); or an organized criminal (if the felony involved a criminal conspiracy in which the defendant played a supervisory role). 18 U.S.C. § 3575(e); see Rummel v. Estelle, 445 U.S. 263, 299, 63 L. Ed. 2d 382, 100 S. Ct. 1133 (1980) (Powell, J., dissenting). A special offender is further characterized as dangerous if "a period of confinement longer than that provided for [defendant's] felony is required for the protection of the public from further criminal conduct by the defendant." 18 U.S.C. § 3575(f). Such persons may be sentenced "to imprisonment for an appropriate term not to exceed twenty-five years and not disproportionate in severity to the maximum term otherwise authorized by law for such felony." 18 U.S.C. § 3575(b).*fn2

After a hearing, the trial court determined that Felder was a dangerous special offender, primarily because of his two prior felony convictions and various prior arrests. The court then sentenced Felder to twelve years imprisonment, which Felder here asserts violates 18 U.S.C. § 3575 because it is "disproportionate in severity" to the two year maximum sentence for the underlying offense.

II.

Preliminarily, we address our standard of review of the district court's sentencing decision. In the usual criminal case, our review of sentences imposed by the district court is extremely circumscribed. If a sentence is within the statutory limitation and there is no defect in the sentencing procedure, we do not interfere with the trial court's discretion as to the sentence imposed. See United States v. Del Piano, 593 F.2d 539, 540 (3d Cir.) (per curiam), cert. denied, 442 U.S. 944, 99 S. Ct. 2889, 61 L. Ed. 2d 315 (1979); see also United States v. Dickens, 695 F.2d 765, 782 n.26 (3d Cir. 1982) (sentences within the maximum allowed by statute are not generally reviewable on appeal).

Sentences imposed on a dangerous special offender under 18 U.S.C. § 3575, however, are expressly made reviewable by this court under 18 U.S.C. § 3576 which provides, in pertinent part:

With respect to the imposition . . . of a sentence after proceedings under section 3575 . . . a review of the sentence on the record of the sentencing court may be taken by the defendant or the United States to a court of appeals. . . . Review of the sentence shall include review of whether the procedure employed was lawful, the findings made were clearly erroneous, or the sentencing court's discretion was abused. The court of appeals on review of the sentence may, after considering the record, including the entire presentence report, information submitted during the trial . . . and the sentencing hearing, and the findings and reasons of the sentencing court, affirm the sentence, impose or direct the imposition of any sentence which the sentencing court could originally have imposed, or remand for further sentencing proceedings and imposition of sentence, except that a sentence may be made more severe only on review of the sentence taken by the United States and after hearing.

The importance of appellate review of the sentences imposed on dangerous special offenders was stressed in the legislative history. The Senate Report called appellate review of sentences "the most effective technique" for "reducing the incidence of disparate and unwise sentences." S. Rep. No. 617, 91st Cong., 1st Sess. 92 (1969) [hereinafter cited as S. Rep. No. 617]. Although a principal concern of the Committee was what was viewed as inadequate sentences for organized crime offenders, see id. at 85, it is clear that the appellate review provision was designed not only to correct "inadequate sentences", a function upheld in United States v. DiFrancesco, 449 U.S. 117, 66 L. Ed. 2d 328, 101 S. Ct. 426 (1980), but also to provide a vehicle whereby the court of appeals could remedy "individual excessive sentences." S. Rep. No. 617 at 92. As the Senate Report states,

appellate review of sentences can contribute to rationality in sentencing by making sentencing decisions more public and promoting the evolution of sentencing principles, enhance respect for our system of justice, relieve pressure on appellate courts now lacking sentence review power to find grounds to reverse convictions on which unconscionable sentences were ...


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