ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY D.C. Crim. No. 74-321
Before Adams, Weis and Higginbotham, Circuit Judges.
Petitioner, Peter A. Campisi, challenges an order of the District Court for the District of New Jersey denying a motion to vacate his sentence on the ground that delay in imposing the sentence violated his rights under Rule 32 of the Federal Rules of Criminal Procedure and under the Sixth Amendment.
On January 16, 1975, Peter A. Campisi entered a plea of guilty to a federal indictment charging him with conspiracy to receive, conceal and possess securities stolen from the mail in violation of 18 U.S.C. § 371. Two of Campisi's three co-defendants also entered guilty pleas. The third co-defendant did not then plead guilty.*fn1 The district judge, intending to sentence all the defendants at the same time, postponed sentencing pending completion of the proceedings relating to the third defendant and the compilation of presentence reports. Petitioner Campisi's presentence report was prepared by March 31, 1975. On May 13, 1975, the third co-defendant pleaded guilty to the same charge of conspiracy. Petitioner Campisi and his three co-defendants ultimately were sentenced to imprisonment for five years on June 9, 1975.
When petitioner entered his guilty plea to the charges in the federal indictment on January 16, 1975, he was being held in the custody of the State of New Jersey since separate charges of murder and conspiracy had been brought against him there. Petitioner subsequently pleaded guilty to those charges as well, and was sentenced by the state judge on June 12, 1975, to a fifteen-year term of imprisonment. The state sentence was made concurrent with the federal sentence, and the length of time that the petitioner had spent in state custody prior to sentencing by the state court was credited toward that sentence.
In his Pro se brief, petitioner argues that the five-month interval between the time of his guilty plea and the date of his sentencing for the federal offense constituted a violation of Rule 32 of the Federal Rules of Criminal Procedure, as well as a denial of his Sixth Amendment right to a speedy trial.
Although the choice of the time for sentencing is generally within the realm of a trial judge's discretion, that discretion is not unfettered. Rule 32(a) (1), Fed.R.Crim.P., provides that "sentence shall be imposed without unreasonable delay." In determining whether a period of delay is unreasonable, it is necessary to look to the circumstances of each particular case. See Pollard v. United States, 352 U.S. 354, 361, 77 S. Ct. 481, 1 L. Ed. 2d 393 (1957); Lott v. United States, 309 F.2d 115, 122 (5th Cir. 1962), Cert. denied, 371 U.S. 950, 83 S. Ct. 504, 9 L. Ed. 2d 498 (1963). On the basis of the record here, we decline to classify the challenged delay as "unreasonable" within the meaning of Rule 32(a)(1).
In order to effectuate a just and individualized sentence of the petitioner, the district judge exercised sound judicial discretion in postponing disposition of his case until his presentence report was completed.*fn2 The judge's action in this regard was by no means extraordinary, for Rule 32(c), requires a presentence report in every case unless the court specifically directs otherwise. Thus, as the district judge perceived the facts here, the actual delay in sentencing was not five months, as petitioner alleges, but only about ten weeks, that is, the delay extended from the day the presentence report was completed, March 31, until June 9, when sentence was imposed.*fn3 Also, as mentioned, it was during this interval that the third co-defendant pleaded guilty to the federal conspiracy charges against him. Under these circumstances, we cannot say that the district judge abused his discretion in deferring petitioner's sentence for some ten weeks so that All defendants named in the indictment could be sentenced at one time. See United States v. Sclafani, 487 F.2d 245, 252 (2d Cir.), Cert. denied 414 U.S. 1023, 94 S. Ct. 445, 38 L. Ed. 2d 314 (1973); Lott v. United States, supra, 309 F.2d at 122.
Inasmuch as we have rejected petitioner's contention with respect to Rule 32, we next consider his Sixth Amendment argument. Initially, we note that the Supreme Court has not held squarely that the constitutional right to a speedy trial includes the right to a speedy sentence. However, in Pollard v. United States, 352 U.S. 354, 361, 77 S. Ct. 481, 486, 1 L. Ed. 2d 393 (1957), the Supreme Court did "assume Arguendo that sentence is part of the trial for purposes of the Sixth Amendment." We shall follow the same approach in scrutinizing petitioner's claim here.
The Supreme Court has identified four factors to be weighed when analyzing whether there has been a violation of a defendant's right to a speedy trial: the length of the delay, the reasons for the delay, whether and when the defendant expressly asserted his Sixth Amendment rights, and whether the defendant was prejudiced as a result of the delay. See Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972).*fn4 Treating petitioner's argument as within the confines of speedy trial analysis, and applying the balancing test ...