Appeal from a judgment of conviction sentencing appellant to a ten year term of imprisonment plus a special parole term of ten years for a violation of 21 U.S.C. § 841(a)(1). Sentence vacated. Appellant remanded for re-sentencing.
Before LUMBARD, MOORE and FEINBERG, Circuit Judges.
The appellant, Ismael Antonio Ramos (Ramos), having waived indictment, pleaded guilty to an information, charging him with possession with intent to distribute 17 ounces of heroin in violation of 21 U.S.C. § 841(a)(1). He was sentenced to 10 years imprisonment plus a special parole term of 10 years. From this sentence Ramos appeals. The facts, obtained from the sentencing minutes of May 19, 1977, relating to the imposition of this sentence must be reviewed.
Prior to sentencing, Ramos, at the time of his guilty plea, had been advised by the Court that he was entitled to remain silent; that the maximum sentence is 15 years plus a $25,000 fine and a minimum special parole term of 3 years.
Ramos, then 22 years of age, was told by the Court that he might be entitled to treatment under the Youth Correction Act but that "it is entirely in my discretion and I do not have to give reasons for not giving you that treatment". The Court suggested "if you wish it" Ramos should discuss it with his Probation Officer and that he (the Court) would take it into consideration if Ramos so desired. The advantages and disadvantages of such treatment were outlined. However, neither Ramos nor his counsel seem to have pursued the possibilities of this alternative.
On the day of sentencing, Ramos' counsel referred to the probation report, which so far as a prior criminal record is concerned, referred only to a traffic violation (conditionally discharged) and to letters from Ramos' family. He noted that Ramos was the support of his semiinvalid mother and sisters and then asked for leniency.
The probation report showed that Ramos had traveled to Chicago with some $14,000 supplied by an individual whose name Ramos gave to narcotics agents and who, as a result, was subsequently indicted. Ramos' participation was described "as a 'mule' to transport heroin between Chicago and New York". For this service Ramos, in need of money, was to receive $500.*fn1 Upon his arrest at the time of attempting delivery, Ramos made statements implicating the other individual but as stated in the report "he subsequently refused to testify and is considered to be generally uncooperative". A "period of incarceration" was recommended, although his involvement in criminal activities was recent and he had no prior record except the traffic violation.
Counsel for Ramos told the Court that Ramos feared the consequences to his family if he testified at the trial of the individual for whom he was acting in transporting the heroin. Thereafter, in colloquy in which Ramos' counsel, the Assistant United States Attorney and the Court participated, it became obvious that the Court placed great stress upon Ramos' cooperation with the Government by testifying. The Court said "[if] he is anxious to show his cooperation with the Government, his time is now to say to the Government 'I'm willing to assist you in the trial'." (32-A). Counsel for Ramos even "advised him that possibly a more heavier [sic] sentence could possibly result". (34-A). The Court, after stating that he had read the probation report [which contained references to Ramos' refusal to testify] and that he had considered Ramos' indictment waiver and guilty plea, referred to counsel's "statements with respect to his [Ramos'] cooperation [which] are not very helpful to the Court" and thereupon sentenced Ramos to 10 years imprisonment plus a special parole term of 10 years.
This court cannot be unmindful of the fact that Ramos, on this record, appears to have been only a transporter [ i.e., a "mule"] of the heroin, that he had given the name of the individual for whom he was acting, that his testimony had not been shown to be vital to the successful prosecution of that individual, that he was 23 years of agg at the time of sentencing, and that he was not a user or distributor [in the sense of being a "middleman"] of narcotics.
In our task of reviewing countless appeals of narcotics convictions we have had to become aware of sentences meted out to convicted traffickers in narcotics. Although we are mindful of an appellate policy of giving the broadest discretion to the sentencing judge, we have read the sentencing minutes and the probation report and are more than somewhat in doubt that the length of the sentence was not influenced by Ramos' refusal to testify for [cooperate with] the Government. This doubt is created because the judge gave no reasons for selecting the particular sentence.
The Proposed Rules on Sentencing of the Judicial Council of the Second Circuit (March 17, 1976) provide in section III(C):
"When sentence is imposed, the court should:
(3) State for the record, in the presence of the defendant, the reasons for the particular sentence imposed and for rejecting ...