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United States v. Fessler


decided: January 6, 1972.


McLaughlin, Aldisert and James Rosen, Circuit Judges.

Author: Rosen


JAMES ROSEN, Circuit Judge.

The appellant, John J. Fessler, pleaded guilty to a charge of assaulting a postal employee with intent to rob a federal post office in violation of 18 U.S.C. § 2114. Judge John J. Kitchen of the United States District Court for the District of New Jersey imposed a sentence of five years imprisonment pursuant to Title 18 U.S.C. § 4208(a) (2).*fn1 Defendant made a timely application to the District Court for reduction of sentence.*fn2 This appeal is from the trial court's denial of the motion. Appellant contends that the five year sentence is excessive.

Defendant was originally arrested on a complaint charging him with armed robbery of the South Vineland Branch of the Vineland, New Jersey, Post Office in violation of 18 U.S.C. § 2114.*fn3 It is uncontradicted that Fessler used a gun in the commission of the robbery. Because of his cooperation with postal authorities in implicating others involved in this crime he was permitted to enter a plea of guilty on an information to the lesser offense of assaulting a postal employee with intent to rob.*fn4

It is settled that a federal appellate tribunal will not review a judgment of sentence that is within the statutory maximum unless there be a showing of illegality or abuse of discretion. Government of the Virgin Islands v. Venzen, 424 F.2d 521 (3d Cir. 1970); Government of Virgin Islands v. Rodriguez, 423 F.2d 9 (3d Cir. 1970); United States v. Restaino, 405 F.2d 628 (3d Cir. 1968), cert. denied, 394 U.S. 904, 89 S. Ct. 1012, 22 L. Ed. 2d 216 (1969); United States v. Brown, 382 F.2d 52 (3d Cir. 1967); United States v. Wallace, 269 F.2d 394 (3d Cir. 1959); United States v. Williams, 254 F.2d 253 (3d Cir. 1958); United States v. Frank, 245 F.2d 284 (3d Cir. 1957), cert. denied, 355 U.S. 819, 78 S. Ct. 25, 2 L. Ed. 2d 35 (1957).

Appellant cites United States v. Ginzburg, 398 F.2d 52 (3d Cir. 1968) as an exception to the general rule of non-review. This reliance upon Ginzburg is misplaced. The court did not say there could be an appellate review of sentence. The sole issue was whether the trial court abused its discretion in failing to afford Ginzburg a requested hearing on his petition for reconsideration in light of all of the existing circumstances set forth in his petition. The case was remanded to the District Court for a hearing on the petition. This court did not reduce the sentence or instruct the trial court to reduce the sentence.

Appellant's argument is twofold: (1) that before and after being sentenced and incarcerated the defendant gave valuable information to law enforcement agencies concerning the commission of crimes by others in addition to the charge under consideration, (2) that appellant's incarceration creates a family and economic hardship.*fn5

The sentence imposed upon appellant by the trial judge is within the statutory limits. The Judge had the benefit of a presentence report.*fn6 He considered all of the facts and circumstances submitted by appellant and his counsel*fn7 in support of the application for reduction of sentence. Sentencing is primarily the responsibility of a trial judge.*fn8 We are satisfied that the District Court Judge took all factors into consideration before passing sentence.

Appellant Fessler has a law degree although he has not been admitted to the bar of any state.*fn9 It is unfortunate that he did not think of the end result before engaging in criminal activity. The hardship imposed on his family is of his own doing. His previous encounters with the law should have given him knowledge of the consequences of illegal conduct.*fn10

The conclusions in Rodriguez, supra, 423 F.2d p. 11 are pertinent to the facts presented here:

"The sentences here imposed were within the limits authorized by the relevant statutes; and aside from characterizing them as excessive, defendants have presented no reason which would justify a conclusion that the sentences were anything other than the result of a proper exercise of judicial judgment. There is, therefore, no justification for any modification of the sentences, even if it be assumed that we have power to intervene."

The order of the District Court denying defendant's motion for reduction of sentence is affirmed.

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