United States v. Hart

¶6PER CURIAM:

¶7Appellant Hart pled guilty to an indictment charging him with distribution of heroin. He received a ten-year prison sentence with a three-year special parole term to follow his imprisonment. Subsequently he filed a “motion for modification or reduction of sentence pursuant to Rule 35 of the Federal Rules of Criminal Procedure,” which sought resentencing under the Narcotic Addict Rehabilitation Act, 18 U.S.C.A. §§ 4251-4255. The district judge denied his motion, and we affirm.

¶8If a defendant is to get NARA rehabilitative sentencing the court must determine that he is an eligible offender and believe that he is an addict; then the court may, in its discretion, place him in the Attorney General’s custody for an examination preliminary to treatment. In the instant ease the district judge did not believe' that Hart qualified for NARA sentencing. In his order denying Hart’s Rule 35 motion the district judge said:

We have carefully reviewed the record and conclude that prior to and upon sentencing of petitioner we made an affirmative determination that petitioner was not an “Eligible offender” in accordance with 18 U.S.C. § 4251, and in our discretion afforded by 18 U.S.C. § 4252, did not order an examination.

¶9Although the district judge did not elaborate on his view that appellant was not an eligible offender, we presume the basis for ineligibility would be 18 U.S.C.A. § 4251(f)(2).1 That provision disqualifies those convicted of making narcotic sales, unless the sales were made for the purpose of appeasing the seller’s addiction. Unfortunately there is nothing in the record that touches on appellant’s purpose in making the sale that resulted in his conviction. Were his status as an ineligible offender the only basis for the district judge’s decision, we would have to consider remanding this case for an evidentiary hearing. See United States v. Phillips, 6th Cir. 1968, 403 F.2d 963; United States v. Porter, D.Minn.1967, 277 F.Supp. 655. But cf. Ramos v. United States, 9th Cir. 1970, 432 F.2d 423.

¶10The district court, however, relied on section 4252 2 as well as section 4251(f). Section 4252 allows a judge to refuse NARA relief if he believes the offender is not an addict or if, after exercising his discretion, he simply chooses not to grant relief. The probation officer’s presentence report provides some support for a belief that Hart was not an addict.3 Furthermore, the district *972judge stated that he exercised his discretion at the time of sentencing and consciously chose not to sentence Hart under the NARA.4 Therefore we must uphold his decision to deny Hart NARA rehabilitation.

¶11Affirmed.