Before McGOWAN, Chief Judge, and ROBINSON, Circuit Judge, and PARKER,* United States District Judge for the District of Columbia.
UNITED STATES COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT
Appeal from the District Court for the District of Columbia (Criminal No. 75-00486).
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCGOWAN
This is an appeal from the denial by the District Court of a motion to vacate sentence under 28 U.S.C. § 2255. It presents, in one view of the sentencing record, a question of law as to whether the Federal Probation Act, which forbids probation in the case of an offense punishable by death or life imprisonment, 18 U.S.C. § 3651, applies to a conviction in the District Court solely of a D.C.Code offense. There is, however, a preliminary question as to whether the District Court was merely exercising its discretion under all the circumstances to deny probation, as it was entitled to do by reference to the terms of the D.C. law (11 D.C.Code § 502(3)) under which probation was a sentencing option available to the court.
The record being unclear as to which statute the District Court considered itself to be acting under, we remand the case to the District Court for the purpose of, first, clarifying the basis of its action and, second, deciding, if that should prove to be necessary, which statute is applicable. I
On July 10, 1975, appellant Michael Garnett was indicted for (1) possession of an unregistered firearm (26 U.S.C. § 5861(d)), (2) armed robbery (22 D.C.Code §§ 2901, 3202), (3) robbery (22 D.C.Code § 2901), and (4) two counts of assault with a dangerous weapon (22 D.C.Code 502). Charged with both federal and District of Columbia offenses, prosecution was brought in the United States District Court for the District of Columbia pursuant to 11 D.C.Code § 502(3), which gives the District Court jurisdiction over federal and District of Columbia offenses joined in the same indictment. *fn1
Appellant failed to appear for trial on November 3, 1975, and was not apprehended until November 18, 1976. On January 3, 1977, the District Court accepted appellant's plea of guilty to the armed robbery count and dismissed all other charges. All of the charges in the indictment stemmed from an episode occurring on June 2, 1975 when, according to the Government's factual proffer at the plea proceeding, appellant used a sawed-off shotgun to rob two passersby on a street in the District of Columbia. *fn2
At the subsequent sentencing hearing, defense counsel submitted a sentencing memorandum detailing appellant's impressive educational background and other assertedly mitigating factors. In addition, appellant read to the court his own prepared statement, in which he argued for a lenient sentence. The court then passed sentence in the following manner:
You do know, Mr. Garrett (sic), that the Court has no choice about not giving probation? This is an offense that is not subject to probation ... he Court sentences the defendant ... to be incarcerated for a period of not less than three years nor more than nine years .... I would like to inquire of Mr. Pace whether Petersburg is a likely place for this sentence.
(Sent. Tr. 16). After some consultation, the court recommended that appellant be incarcerated in the federal prison at Petersburg, as requested by defense counsel.
Appellant, proceeding pro se, subsequently moved to vacate his sentence pursuant to 28 U.S.C. § 2255 (Supp.III 1979), urging that his presentence report contained references to convictions that had been unconstitutionally obtained. On April 15, 1980, the District Court denied the motion, explaining in an accompanying Memorandum Opinion (filed April 16, 1980) that
(a)ll of defendant's prior convictions were for petty offenses characterized by the Probation Office as "traffic violations and Public Drunk (sic)." Contrary to the usual practice of the Probation Office, no factual information concerning these offenses was provided. Consequently, no adverse inference with regard to defendant's prior criminal activity was or could have been drawn.
Additionally, the Court was persuaded to impose a relatively lenient sentence despite the serious and violent nature of the crime, because of a detailed presentence memorandum submitted by Garnett's attorney. Even though he could have received a life sentence, the Court was impressed by several factors mentioned only briefly in his presentence report, such as his educational achievements and family background and support. This, in conjunction with the insignificance of the prior convictions, leads the ...