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November 23, 1981

Marvin McCLAIN, Petitioner,
UNITED STATES of America, Respondent

The opinion of the court was delivered by: COOPER

We undertake the resentencing of this defendant who interposed on October 14, 1975 a guilty plea to three counts based on his participation in an armed bank robbery during the course of which he shot a bank guard. He was indicted for bank robbery, 18 U.S.C. § 2113(a) maximum penalty 20 years and/or $ 5,000 fine and armed bank robbery, 18 U.S.C. § 2113(d) maximum penalty 25 years and/or $ 10,000 fine. Subsequently another charge was added: the commission of a felony while armed, 18 U.S.C. § 924(c)(1) maximum penalty not less than 1 year nor more than 10 years.

On December 3, 1975 we imposed sentence. While the total maximum prison sentence was 35 years, we imposed a prison sentence of 25 years: 15 years on counts 1 and 2 (merged by law Prince v. United States, 352 U.S. 322, 77 S. Ct. 403, 1 L. Ed. 2d 370 (1957)) and 10 years on count 3. We erred. McClain v. United States, 643 F.2d 911 (2d Cir. 1981). The United States Circuit Court of Appeals, Second Circuit, vacated the sentence imposed "and the matter is remanded to the district court for sentencing under section 2113(d) only." *fn1"

Before the superseding indictment was handed down, defendant was prepared to enter a guilty plea to the two counts of the indictment. He was disinclined to do so, however, when advised of the added charge which carried with it an additional maximum prison sentence of 10 years. After a conference with counsel on both sides and with the defendant present, we assured them that we would not impose a sentence longer than 25 years. It was then that the defendant entered a guilty plea to each of the three counts.

 In its opinion our Circuit Court reasoned:

If we vacate appellant's entire sentence and remand for sentencing on only the section 2113(d) charge, the district court may or may not increase the fifteen-year sentence already imposed. If the District Court intends to consider the imposition of an increased sentence, it should afford an opportunity to have the propriety of such an increase briefed and argued; if such an increase is imposed, its propriety will of course be subject to consideration in this Court upon appeal. See Busic v. United States, supra, 446 U.S. (398) at 412 n.19, 100 S. Ct. (1747) at 1756 n.19, (64 L. Ed. 2d 381).
We limit our decision on this appeal to holding that we may vacate appellant's entire sentence under the general supervisory powers granted us by 28 U.S.C. § 2106. See Johnson v. United States, 619 F.2d 366, 368-69 (5th Cir. 1980); United States v. Moore, 176 U.S. App. D.C. 309, 540 F.2d 1088, 1091 (D.C.Cir.1976); Kitt v. United States, 138 F.2d 842, 843 (4th Cir. 1943); Phillips v. Biddle, 15 F.2d 40, 41 (8th Cir. 1926).

 McClain, supra, 643 F.2d at 913-14.

 We carefully considered the imposition of an increased sentence, received and examined briefs and heard argument to the fullest extent. After a meticulous review of all the proceedings heretofore had herein and made a part of this disposition, and addressing ourselves exclusively to the sole criminal prohibition now before us (18 U.S.C. § 2113(d) maximum penalty 25 years and/or $ 10,000 fine), we have concluded that justice due the defendant and community alike makes it imperative that we impose a sentence of twenty years imprisonment. In doing so, we give "credit" (as promised) for the guilty plea, *fn2" and a further reduction by reason of other factors we regard favorable to defendant.

 We are only too well aware that the dilemmas of sentencing make it imperative that the judge proceed cautiously and thoroughly. The search is constant for the amount and kind of disciplinary action, in the light of the offender's moral standards and educability that will be needed to restore him to his place in the community with sound attitudes towards it. This court has had more than a nodding acquaintance with persons convicted of crime, the effects of different types of sentences imposed, the utilization of concepts of rehabilitation, the significance of cooperation with the Government, etc. *fn3"

 Indispensable is a thorough search for all details having even the slightest bearing on a defendant's character, past and present. Often such an inquiry proves rewarding, for it supplies insights into strengths and weaknesses not theretofore revealed and furnishes enlightenment as to how best to write the sentence prescription. This approach is imperative and has long been encouraged and approved. In the exercise of his discretion, the judge may

consider information about the convicted person's past life, health, habits, conduct, and mental and moral propensities .... Highly relevant-if not essential-to his selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant's life and characteristics .... (The) modern philosophy of penology ... (emphasizes) that the punishment should fit the offender and not merely the crime.

 Williams v. New York, 337 U.S. 241, 245-47, 69 S. Ct. 1079, 1082-83, 93 L. Ed. 1337 (1949) (emphasis supplied). See also 21 U.S.C. § 850.

 Indispensable also is a thorough search for solid evidence pointing to the innate potential of offenders for moral rehabilitation and to determine just what it will require for them to establish and maintain themselves along lines heretofore foreign to them and inimical to their way of life.

 It must be recognized that

Much harm is done by the myth that, merely by putting on a black robe and taking the oath of office as a judge, a man ceases to be human and strips himself of all predilections, becomes a passionless thinking machine.... We are born with predispositions.... Only death yields complete dispassionateness, for such dispassionateness signifies utter indifference.... Impartiality is not gullibility. Disinterestedness does not mean child-like innocence.
In re Linahan, Inc., 138 F.2d 650, 651-54 (2d Cir. 1943) (Frank, C. J.).

 Indeed, in the pursuit of our judicial mission, hardly a day passes without the forceful reminder by Mr. Justice Holmes (The Common Law p.1) that "The life of the law has not been logic: it has been experience."

 We are compelled to conclude that this defendant has been a determined offender against community well-being.

 The bank robbery

 According to official data reflected in the pre-sentence report and obtained from the office of the U.S. Attorney and a Special Agent of the FBI, the defendant and one LeRoy McClain (believed not to be related to defendant) on June 23, 1975 at approximately 2:55 P.M. entered the Chase Manhattan Bank at 162 Third Avenue, in the Borough of Manhattan, City of New York. The defendant held a pistol at the head of the bank guard, Seymour Frankel (Frankel). A struggle ensued between the two; McClain fired several shots three of which entered Frankel's neck and chest.

 The defendant then directed LeRoy McClain, who also brandished a revolver, to "Get the money." The latter vaulted the bank counter, collected and placed the money ($ 5,493) in a leather bag they had brought with them. The third accomplice, Mildred Skeete who had remained outside the bank, entered when the shooting occurred; she was handed the bag containing the bank's money; the three then fled.

 The defendant and Skeete were arrested by FBI agents on July 3, 1975. She pleaded guilty to 18 U.S.C. § 2113(a) and (d); we sentenced her to six (6) years on December 3, 1975. LeRoy McClain was later apprehended, convicted and sentenced (15 years on December 7, 1976) by Judge Palmieri of this Court.

 The bullets rendered Frankel unconscious; his physical condition was critical and to such an extent that he became a quadraplegic; at the Rusk Institute, his serious condition was emphasized by the sad comment: "Just a vegetable!" After we imposed sentence, we were officially informed that Frankel at age 45 died on March 16, 1977 "while hospitalized for the injuries which he sustained at the hands of the defendant." *fn4"

 At sentencing defendant's counsel advanced the theory that "McClain was shot by the bank guard's gun, and the only question then is when it was done, and he (McClain) believes it was done before he pulled the trigger." *fn5" The Government promptly responded: "Your Honour, the testimony at trial would have shown that there was a tussle, and the two witnesses who actually saw the shooting would have testified that during the course of the tussle McClain's gun shot, and there is no indication that the guard's gun was shot."

 We then commented: "The long and short of it is that you put a bullet into a guard's body, and that bank guard remains and will for the rest of his days be a paraplegic. You crippled a man for life. You say that someone shot at you. We have checked that all out. There is nothing along that line that supports what you maintain. That the drugs that you were taking might have robbed you of what a normal man would have possessed at that moment in the sense that you didn't respond because of the impact of drugs, that was your choice .... I was concerned about what happened inside the bank once your client entered it, and I wrote the Government a letter asking for a detailed examination. I studied the report. I made such inquiry as I thought I should, and I am satisfied that my pronouncement with regard to what he did is so, and I reject as unsupported the contention that you advance. I am entirely dissatisfied with it. It was that kind of thing that prompted me to want to be informed one way or the other as to what there was to it. Because it does make a difference ... as to the amount of time or imprisonment imposed." *fn6"

 We regard it significant that from the date of the proceedings at sentence (December 3, 1975) up to the very present not a single word has been said or written by defendant or in his behalf with respect to the circumstances surrounding the shooting of Frankel.

 Afforded an opportunity to address the Court before sentence was imposed, the defendant had this to say: "... you asked me do I have anything to say. Of course. How much difference it would make, it's what your Honour thinks that matters. I would like to be transferred from MCC as soon as possible. I would also ask that your Honour consider granting me an A-2 number upon sentence. I state at this time defendant Skeets' part was more concern for me, therefore I ask that your Honour be more lenient with her. Any consideration given her will be most appreciated. Respectfully, McClain." *fn7"

 When McClain on October 14, 1975 entered his plea of guilty to each of the three counts, we commented:

THE COURT: All right. I told your lawyer that I would not sentence you to the maximum of 35 years, that I would not exceed 25 years unless I saw good reason.
Over and above what was revealed to me up to this moment, if I should decide on the basis of reading a report about you from the Probation Department that the amount of sentence should exceed 25 years, I will allow you to withdraw ...

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