Public-domain · open source
OpenJurist

607 F.2d 757

Docket No. 79-5085.

Sims v. United States

Sixth Circuit Court of Appeals

Decided Oct. 11, 1979.

Sixth Circuit Court of Appeals · decided 1979-10-11

2 counsel of record

Key passage — most relied on by later courts

“may impose any sentence which might originally have been imposed.”

quoted by 3 later decisions, including Michael Lane Landrie v. United States, United States v. Powers

“When the Court suspends the imposition of sentence and places the defendant on probation, it is authorized, upon revocation of probation, to impose any sentence within the limits of statutory authority. Merely placing a defendant on probation is not a sentence under 18 U.S.C. § 3651 .”

quoted by 1 later decision, including Probert v. United States Immigration & Naturalization Service

Applies 18 U.S.C. § 1708 · 18 U.S.C. § 3651 · 18 U.S.C. § 5010

Relies on Roberts v. United States · Manley v. United States · United States v. Fried

Good law ✅— No negative treatment on recordhow we know

Opinion by (per_curiam) · Decided 1979-10-11

How this case has been cited

Cited by 20 later decisions — most recently February 2004

14 federal appellate ·

1201979198019902000decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1*758Wilfred J. Ritz, Alderson Legal Assistance Program, Lexington, Va., Brenda J. Sims, pro se, for petitioner-appellant.

¶2James R. Williams, U. S. Atty., Diane Rubin Williams, Asst. U. S. Atty., Cleveland, Ohio, John M. Siegel, Shaker Heights, Ohio, for respondent-appellee.

¶3Before WEICK and KEITH, Circuit Judges and PHILLIPS, Senior Circuit Judge.

¶4PER CURIAM.

¶5Petitioner-Appellant Sims pleaded guilty to possession of stolen mail in violation of 18 U.S.C. § 1708, in the United States District Court for the Northern District of Ohio, Eastern Division. The Court suspended imposition of the sentence and placed Sims on probation for two years pursuant to the Federal Youth Corrections Act. 18 U.S.C. § 5010(a). On September 3, 1977 a probation violation warrant was issued and served because of four violations of her probation including a conviction for receiving stolen property. Sims’ probation was revoked after a hearing on September 30, 1977. On October 5, 1977 Sims was sentenced to imprisonment for a term of five years which was within the limits authorized by the statute.

¶6Sims contends in this appeal that since the District Court had placed her on probation for only two years, that upon revocation of her probation the District Court was not authorized to sentence her for a period in excess of two years. We disagree.

¶7The applicable statute provides:

18 U.S.C. § 3651.
Upon entering a judgment of conviction of any offense not punishable by death or life imprisonment, any court having jurisdiction to try offenses against the United States when satisfied that the ends of justice and the best interest of the public as well as the defendant will be served thereby, may suspend the imposition or execution of sentence and place the defendant on probation for such period and upon such terms and conditions as the court deems best. . . . (emphasis added)
18 U.S.C. § 3653.
As speedily as possible after arrest the probationer shall be taken before the court for the district having jurisdiction over him. Thereupon the court may revoke the probation and require him to *759serve the sentence imposed, or any lesser sentence, and, if imposition of sentence was suspended, may impose any sentence which might originally have been imposed. (emphasis added)

¶8The statute clearly authorizes the imposition of any term which could have been originally imposed, regardless of the term of the probation. It was so held in Roberts v. United States, 320 U.S. 264, 64 S.Ct. 113, 88 L.Ed. 41 (1943) which explained the difference between the statutory authority of suspending the imposition of sentence and suspending the execution of a sentence already imposed. When the Court sentences a defendant and then suspends the execution of the sentence and places the defendant on probation, then if the probation is later revoked, and the defendant is resentenced, it cannot be for a larger period than originally imposed.

¶9When the Court suspends the imposition of sentence and places the defendant on probation, it is authorized, upon revocation of probation to impose any sentence within the limits of statutory authority. Merely placing a defendant upon probation is not a sentence under 18 U.S.C. § 3651. United States v. Fried, 436 F.2d 784, 787 (6th Cir. 1971).

¶10Sims further contends to increase her punishment after she has begun to serve her sentence places her in double jeopardy in violation of the Fifth Amendment to the Constitution. The trouble with this argument is that she had not begun to serve any sentence. She had not been sentenced. United States v. Fultz, 482 F.2d 1 (8th Cir. 1973); Manley v. United States, 432 F.2d 1241 (2nd Cir. 1970).

¶11The judgment of the District Court is affirmed.

/607/f2d/757 · .json · Public domain