2. Provisions of S. 1 as Reported

Section 3725.

Under subsection (a) of section 3724, the government is authorized to appeal to a United States Court of Appeals from a decision, judgment, or order of a district court in a criminal case dismissing an indictment or information or terminating a prosecution in favor of a defendant as to one or more counts, unless further prosecution of the case would be prohibited under the double jeopardy clause of the Constitution. This continues provisions of 18 U.S.C. 3731.

8

The phrase "terminating a prosecution in favor of a defendant" (as to one or more counts) has been added in order to insure that the section receives its currently acknowledged scope of permitting governmental appeals in all cases save those where the Constitution prohibits the appeal. The added phrase makes clear, for example, that the granting of a motion in arrest of judgment may be an appealable type of order, and that the section is not to be construed as limited to orders styled in the form of a dismissal of the indictment or information. This codifies current law. The additional phrase would also be sufficient to allow the government to appeal from an acquittal founded upon an erroneous construction of law, if the Supreme Court in a pending case decides that such an appeal would not be barred by the provisions of the Double Jeopardy Clause.10

Subsection (b) permits the government to appeal to a court of appeals from a decision or order of a district court suppressing or excluding evidence or requiring the return of seized property in a criminal proceeding, if the decision or order was not made during the interval between the time jeopardy attached and the return of the verdict or finding, and if the government attorney certifies to the district court (or magistrate) that the evidence is a substantial proof of a fact material to the case. This continues provisions of 18 U.S.C. 3731.11

Subsection (c) provides that the government may appeal to a court of appeals from a decision or order of a district court denying an application for an order authorizing or approving the interception of a private oral communication, provided the attorney for the government certifies to the district court that the appeal is not taken for purposes of delay. This recodifies existing 18 U.S.C. 2518 (10) (b).

SECTION 3725. REVIEW OF A SENTENCE OTHER THAN A SENTENCE OF DEATHI

1. In General

This section and the following section inaugurate a limited practice of appellate review of sentences in the Federal criminal justice system.

* See United States v. Jenkins, 490 F.2d 868, 870 (2d Cir. 1973), cert. granted, 417 U.S. 908 (1974); United States v. Serfass, 492 F.2d 388, 390 (3d Cir.), cert. granted, 416 U.S. granted. 416 U.S. 955 (1974) (No. 73-1424).

See United States v. Esposito, 492 F.2d 6 (7th Cir. 1973), cert. denied, 414 U.S. 1135 955 (1974).

10 United States v. Jenkins, supra note 8.

11 The "not made" clause has been slightly modified to make clear that the government may appeal from an order granting a motion to suppress or exclude evidence entered after a finding of guilt. See United States v. Beck, 483 F.2d 203 (3d Cir. 1973), cert. denied, 414 U.S. 1132 (1974). The Committee determined to continue the government's inability to appeal when a suppression motion is granted during the trial, because of the interruption thereby occasioned; however, the Committee intends that judges not decide such motions during trial and instead either resolve them before trial (as Rule 41, Fed. R. Crim. P., ordinarily requires), or defer resolution of a subsequently made motion until after the verdict, so as to afford the government an opportunity for appeal in the event of an unfavorable ruling.

42-525-75- -28

The Committee is especially indebted to the work of Senator Roman L. Hruska for the contents of this section. He has led a long and steadfast effort to introduce appellate review of sentencing-an effort stretching back over several Congresses.

12

Appellate review of sentences under the section will not be a matter of right, but will occur only upon the granting of petitions for review by the courts of appeals. The petition system, which is analogous to a petition to the Supreme Court for a writ of certiorari, will enable the courts of appeals to limit those cases that are actually briefed and argued to those where the need for review is the most apparent.1 It will also eliminate a major argument made against a statute authorizing appellate review of sentences that it will needlessly clog the courts with frivolous appeals.

Appellate courts have long followed the principle that sentences imposed by district courts within legal limits should not be disturbed.1 This section is not intended to reverse the traditional practice; it is intended to be used by the appellate courts only to correct clearly unreasonable sentences.

The systematized sentencing procedure introduced by part III of the Code should do much to eliminate unwarranted disparities in Federal sentences. Yet each offender stands before a court as an individual, different in some way from other offenders. The offense, too, may have been committed under highly individual circumstances. Even the fullest consideration and the most subtle appreciation of the pertinent elements the facts in the case; the mitigating or aggravating circumstances; the offender's character. personality, and family and environmental background; and the appropriate purposes of the sentence to be imposed in the case-cannot invariably result in a predictable sentence being imposed. Some variation is inevitable. Sentencing in criminal cases under a system of guided discretion cannot be expected to produce results that conform strictly to a standard mold. A consequence of having a system under which sentences are tailored by the courts to individual cases, however, is that sentences may be imposed from time to time that appear to be not just variations expected within the usual range, but to be either unconscionably severe or absurdly lenient. It is natural that certain facts should arouse one judge more than another, and that the enforcement of a particular statute will seem of more gravity to one judge than to another; judges will differ in approach to sentencing as they do in other respects. Still, sentencing brings the criminal justice process to fruition, and it is a most critical stage both for the offender and the public. It is an anomaly to provide for appellate correction of prejudicial trial errors and not to provide for appellate correction of clearly unreasonable sentences.15

The problem here has many facets. An offender sentenced to a considerably more lengthy term of imprisonment than like offenders for no apparent reason may become far more difficult to rehabilitate. On the other hand, light penalty for a very serious crime may excite public indignation and discontent with governmental processes, possibly even private revenge. The imposition of trivial sentences regularly by a

12 See Hearings, pp. 1568-1574.

13 This position is supported by Mr. Richard A. Givens, former assistant U.S. attorney. New York New York, Hearings, p. 6486.

14 An exception is contempt. See Green v. United States, 356 U.S. 165 (1958); United States v. Bukowski, 435 F. 2d 1094 (7th Cir. 1970), cert. denied. 401 U.S. 911 (1971). 15 See Hearings, pp. 5649-5653 (statement of the Hon. Marvin E. Frankel).

court for a particular kind of violation can virtually nullify criminal legislation. Whatever the case, whether the quarrel is that an individual judge reacted excessively in a case, or that certain groups of offenders are treated with dangerous indulgence, provision for appellate review of sentences should help to reduce the problems generated by sentencing extremes. At the same time, and over the longer course, the provisions of this section may lead to the development of a body of principles which will better rationalize the sentencing process and thus further improve the criminal justice system.16

2. Provisions of S. 1, as Reported

17

Section 3725 is concerned only with sentences imposed for felonies; there will be no appellate review of sentences imposed in misdemeanor cases under the Code. Excluded also from the provisions of this section are sentences equal to or less than that provided for in an accepted plea agreement and sentences for offenses carrying statutory mandatory terms of imprisonment.18 Such sentences cannot be reviewed for propriety of the sentence; they can, however, be reviewed for errors in law, as under current law. Capital sentences are treated separately in section 3726. Current law has appellate review of sentences for dangerous special offenders. 19 These statutes have been incorporated into this section and conformed to its provisions.

The sentence review process begins under subsection (a) with the filing of a petition with the court of appeals. Both the defendant and the government may petition for review, but each will do so under different criteria. A defendant may petition for review of a sentence only if it includes either a fine in an amount exceeding one-fifth that authorized under section 2201 (b), or imprisonment for a term exceeding one-fifth that authorized under section 2301. The petition must be filed within the time allowed for the filing of a notice of appeal. The government may petition for review of a sentence only if it includes either a fine in an amount less than three-fifths that authorized under section 2201 (b), or imprisonment for a term less than threefifths that authorized under section 2301 (b), or no imprisonment at all. The limitations on both defendant and government appeal based upon the size of the sentence imposed is a further restriction on the use of appellate review of sentences in order to avoid any unnecessary appeals. Clearly sentences at the bottom range are less likely to be abusive to defendants. The same applies to the government when sentences approach the upper range of sentences available. The onefifth and three-fifths limitations are necessarily arbitrary numbers representing the Committee's best approximation of the appropriate cutoff points. These provisions can be changed in later years, either by raising or lowering each or both, as experience with the statute in operation is gathered and analyzed.

Under subsection (b), if the court of appeals decides to grant a petition filed under this section, it is to review the entire record in the case, including the evidence presented at trial, the entire presentence re

16 Id. at 5653.

17 Due to an error in the printing of the October 15, 1974, Committee print, the words "is imposed for a felony." which should appear immediately after the word "sentence" on line 38 of page 258, were omitted.

18 The Code contains two such mandatory sentences, in section 1811, dealing with trafficking in opiates, and in section 1825, dealing with using a weapon in the course of a crime.

10 18 U.S.C. 3576; 21 U.S.C. 849.

Section 3726.

port, information submitted during the sentencing proceeding, and. if the defendant was sentenced as a dangerous special offender, the findings of the court on that decision under section 2302(b).

Under subsection (c), upon review of the entire record, the court of appeals is to determine whether the sentence is clearly unreasonable, in view of (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the purposes of sentencing that must be considered pursuant to Part III of the Code; (3) the opportunity of the district court to observe the defendant personally; and (4), if the defendant was sentenced as a dangerous special offender, the findings made under section 2302 (b). The court must also determine, when section 2302 (b) findings have been made, whether such findings were clearly erroneous.

Under subsection (d), if the court of appeals finds that the sentence imposed is not clearly unreasonable, it is to affirm the sentence. It also is to affirm the sentence if there were findings under section 2302(b) and such findings were not clearly erroneous or, if erroneous, the sentence was not affected thereby.

If the court determines that the sentence imposed is clearly unreasonable, and excessive, it is to set aside the sentence and either impose a lesser sentence, remand for imposition of a lesser sentence, or remand for further sentencing proceedings.

If the court determines that the sentence imposed is clearly unreasonable, and insufficient, and if the court has granted a petition for review filed by the government, the court is to set aside the sentence and either imposes a greater sentence, remand for imposition of a greater sentence, or remand for further sentencing proceedings.20 It should be noted that the only time a sentence can be increased is if the government has filed a petition for review which the court has granted. If the court of appeals determines, in a case in which the defendant was sentenced as a dangerous special offender, that the findings made under section 2302 (e) were clearly erroneous, and this affected the sentence, the court is to set aside the sentence and to remand for further sentencing proceedings.

Section 3725 calls for the sentence to be affirmed even if the finding as to a dangerous special offender was erroneous if the error did not affect the finding. The Committee intends that the well established and traditional harmless error rule of current law be applied in such a situation.

As to the procedures to be followed, the Committee intends that the Federal Rules of Appellate Procedure be applicable to a proceeding under this section or under section 3726. Many of these rules will be applicable as they now exist; others may need modification. The Committee expects that the Judicial Conference and its Advisory Committees will issue specific proposed amendments to cover the details of these procedures where necessary.

SECTION 3726. REVIEW OF A SENTENCE OF DEATH

1. In General

Limited to the matter of capital sentences, this section is distinguished from the general sentence review section (section 3725), inas

20 Provided due process considerations are observed, increasing the sentence should be entirely permissible. Cf. Chaffin v. Styrchombe, 412 U.S. 17 (1973) (no constitutional bar to imposition of a greater sentence upon retrial and reconviction).

much as the appellate review provided for here covers both sentence appropriateness and issues regarding procedural requirements, and inasmuch as the courts of appeals are required to grant petitions for review filed under this section.

2. Provisions of S. 1, as Reported

Subsection (a) of section 3726 provides that, within the time allowed for filing notice of appeal, a defendant under sentence of death may petition the court of appeals for review of the sentence, and that the court must grant any such petition filed and accord such a review priority over all other cases.

Subsection (b) provides that the court of appeals is to review the entire record in the case, including the evidence presented at trial, the entire presentence report, the information submitted during the sentencing hearing, the procedures employed in such hearing, and the findings of the court made pursuant to section 2402 of the Code.

Subsection (c) requires that, upon review of the entire record, the court of appeals is to determine whether the sentencing procedures employed were contrary to law and whether the findings under section 2402 were clearly erroneous, taking into account that the jury or, if there was no jury, the judge, had the opportunity to observe the defendant personally.

Under subsection (d), the court of appeals is to affirm the sentence if the procedures employed in the sentencing hearing were contrary to law in a manner constituting harmless error only, or if the findings under section 2402 were not clearly erroneous or, if clearly erroneous, the error did not affect the sentence. If the court determines the sentencing procedures employed to have been contrary to law in a manner not constituting harmless error, the court is then required to set aside the sentence and remand for redetermination of sentence in accordance with provisions of chapter 24. If the court of appeals determines that a finding made under section 2402 was clearly erroneous, and to have affected the sentence, the court is to set aside the sentence and remand the case for imposition of a sentence other than death.