376 F2d 42 United States v. I Weiner

376 F.2d 42

UNITED STATES of America,
v.
Herman I. WEINER, Appellant.

No. 16433.

United States Court of Appeals Third Circuit.

Argued March 10, 1967.

Decided April 13, 1967.

Paul M. Chalfin, Philadelphia, Pa., for appellant.

Robert St. Leger Goggin, Asst. U. S. Atty., Philadelphia, Pa., for appellee.

Before McLAUGHLIN, HASTIE and FREEDMAN, Circuit Judges.

OPINION OF THE COURT

PER CURIAM.

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1

This is an appeal from denial of a petition for reconsideration of sentence. The only point really warranting any comment is appellant's contention that the sentence ordered that restitution be made. The Government states categorically that the sentencing Judge used the words "restitution" and "costs of prosecution" interchangeably. And the Government viewing the sentence as a whole, firmly states that from the language thereof it is clear "that the defendant should pay the costs of prosecution and not restitution." At oral argument the United States District Attorney for the Government made the hard, binding statement to this Court that the word "restitution" in the sentence is at most surplusage. We agree with that construction of the sentence. In the circumstances the return of this case to the District Court for such an unnecessary technical correction would be improper.

2

We find no erroneous assumptions of fact by the trial Judge in connection with said sentence. The disclosure of the presentence report was within the discretion of the trial Judge. We have before us no careless or designed pronouncement of sentence on a false foundation as in Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948) or cases following it. We have a sentence within the statutory maximum free from abuse of discretion or other illegality.

3

The judgment of the District Court will be affirmed.