Thomas Joseph Sherman, Jr. v. United States

This case raises two questions relating to the tentative sentence provided by 18 U.S.C. § 4208 (b): (1) Does the right of allocution attach at the time of defendant’s commitment under the tentative sentence as well as at final sentencing; (2) under what standard should leave to withdraw a plea of guilty be granted during the period between the tentative and the final sentences?

On July 7, 1966, in the District Court for the District of Hawaii, appellant, with court-appointed counsel present, entered a plea of guilty to an indictment charging that he had made a long-distance telephone call by falsely representing himself to be the owner of a telephone credit card, in violation of 18 U.S.C. § 1343 . The plea was made with the understanding of both appellant and his counsel that the pro forma maximum sentence would be imposed under § 4208 (b) in order that appellant might have the benefit of a study under § 4208(c), a benefit appellant expressed a desire to have.

Appellant was sentenced as anticipated and was ordered committed for study to the federal correctional institution at Lompoc, California. On this occasion appellant was not afforded the opportunity to make a statement in…