Appeal from a criminal sentence entered by the United States District Court for the Southern District of New York, Constance Baker Motley, J., on a judgment of conviction after a guilty plea.
Moore, Timbers and Gurfein, Circuit Judges.
Raymond Robin, age forty-eight at the time of sentence, a former and then retired police officer and a licensed bailbondsman, appeals from a jail sentence of thirty (30) years plus fines and probation imposed upon him after his plea of guilty to a three count indictment (June 1974) against him, charging (1) conspiring to distribute narcotics in violation of Title 21, U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(A), and (2) illegally possessing and distributing heroin on two separate occasions in March, 1974, in violation of Title 21, U.S.C. § 846. During the same month that appellant was indicted in the Federal District Court for the Southern District of New York, an indictment containing substantially the same accusations of narcotics violations was handed down in the New York State Courts.
After being fully warned of his constitutional rights, appellant waived arraignment on both indictments on the understanding that he would cooperate with the federal authorities (the Government) and perhaps reach an agreement on the disposition of his case. The federal indictment*fn1 was ordered sealed and remained so for almost a year. In May, 1975, it was ordered unsealed, apparently after the Government became dissatisfied with the type of cooperation offered by the appellant. Appellant was arraigned in June 1975 and released on bail after a plea of not guilty.
In November, appellant petitioned in the Federal District Court before District Judge Motley to withdraw his previously entered plea of not guilty and to plead guilty as charged. The guilty plea was accepted by the court over the objection of the Government, which wished to nolle prosequi the case.*fn2
Appellant was sentenced on January 9, 1976, to fifteen years in prison on each count, with the sentences in Counts One and Two to run concurrently and the sentence on Count three to run consecutively, totalling thirty (30) years' incarceration. Fines totalling $75,000 were also imposed, and a special three year special parole term was ordered to follow the thirty-year term of imprisonment.
Prior to sentencing, a State Assistant District Attorney (Cunningham), who had investigated State charges against appellant, submitted a letter to the Federal District Judge on the subject of the state investigation.*fn3 A copy was sent to appellant's privately-retained counsel.*fn4 On the morning of sentencing, January 9, 1976, appellant's counsel sought access to the presentence report*fn5 which had been ordered prepared after appellant's guilty plea. Counsel was permitted to see the report before the commencement of proceedings at 10:00 A.M., but was prohibited from taking it out of the judge's chambers and from showing it to his client.
The sentencing proceeding was marked by repeated disputes between the Government and the appellant on the underlying facts of the case. Appellant offered a tape and certain State Court exhibits to the Court to rebut the Government's version of the facts surrounding the case, but the Court refused to consider them.*fn6
The Government's posture at sentencing was that appellant was a major heroin trafficker. The Government did not rest this conclusion on the charges to which appellant actually pleaded guilty,*fn7 but rather on extrinsic material which was summarized in the presentence report and the Cunningham letter, both of which served to outline what the Government "expected to prove" at trial. Although the District Judge disclaimed reliance on allegations of crimes not proven,*fn8 she concluded that she could receive the Government's version of the facts at the sentencing proceeding.*fn9 When the Judge pronounced sentence, she addressed appellant in part as follows:
"Mr. Robin, as I have indicated, the Court is convinced that your involvement in narcotics was on a major scale, and that this crime was committed after the very severe penalties enacted by the New York State Legislature went into effect which means that anybody involved in the narcotics traffic after that date is involved on a major scale because he is taking a major risk which you obviously were willing to take in view of the large sums of money involved in narcotics traffic." Tr. at 60.
Appellant filed a timely notice of appeal challenging the sentence. Following oral argument, we ordered that the presentence report be made part of the record on appeal.*fn10 Having examined the report as well as the rest of the record, we believe that serious error was committed in the course of the sentencing procedures which mandates vacatur of the sentence and resentencing before a different district judge.
Criminal sentences are not generally reviewable in this Circuit.*fn11 However, this Court does have the authority to review sentences under certain limited circumstances. Where there is a possibility*fn12 that sentence was imposed on the basis of false information or false assumptions concerning the defendant, an appeal will lie to this Court and the sentence will be vacated.
"Misinformation or misunderstanding that is materially untrue regarding a prior criminal record, or material false assumptions as to any facts relevant to sentencing, renders the entire sentencing procedure invalid as a violation of due process." Townsend v. Burke, 334 U.S. 736 at 740-1, 68 S. Ct. ...