United States v. Steven Edward Mollet

510 F.2d 625 UNITED STATES of America, Plaintiff-Appellee, v. Steven Edward MOLLET et al., Defendants-Appellants. Nos. 72--2945, 72--3135. United States Court of Appeals, Ninth Circuit. Jan. 30, 1975. Lowell Chatburn (argued), of Scholz & Shecter, Millbrae, Cal., for defendants-appellants. Douglas G. Hendricks, Asst. U.S. Atty. (argued), San Diego, Cal., for plaintiff-appellee. Before BARNES and GOODWIN, Circuit Judges, and ANDERSON, * District Judge. OPINION BARNES, Circuit Judge: 1 This is an appeal from three convictions of conspiracy to introduce marijuana into the United States. We affirm the convictions, but vacate the sentences. 2 On May 9, 1972, oral argument was heard on the appeal. On May 25, 1972, we reserved, by order, our opinion upon the applicability of United States v. Almeida-Sanchez, 452 F.2d 459 (9 Cir. 1971), because Almeida was on appeal, awaiting determination by the Supreme Court. 3 * On June 21, 1973, the Supreme Court, ruled in Almeida-Sanchez v. United States, 413 U.S. 266 , 93 S.Ct. 2535 , 37 L.Ed.2d 596 (1973), that a 'roving search' of an automobile, without a warrant and without probable cause, when not a border search, or the functional…

This is an appeal from three convictions of conspiracy to introduce marijuana into the United States. We affirm the convictions, but vacate the sentences.

On May 9, 1972, oral argument was heard on the appeal. On May 25, 1972, we reserved, by order, our opinion upon the applicability of United States v. Almeida-Sanchez, 452 F.2d 459 (9 Cir. 1971), because Almeida was on appeal, awaiting determination by the Supreme Court.

I

On June 21, 1973, the Supreme Court, ruled in Almeida-Sanchez v. United States, 413 U.S. 266 , 93 S.Ct. 2535 , 37 *626 L.Ed.2d 596 (1973), that a “roving search” of an automobile, without a warrant and without probable cause, when not a border search, or the functional equivalent thereof, violated the Fourth Amendment.

On September 5, 1973, we handed down an opinion in this case holding that since this case did not involve a roving search but occurred at San Onofre immigration checkpoint, Almeida-Sanchez did not apply and the search was valid. On October 31, 1973, an order was entered by this court en banc, vacating the decision of the panel herein, withdrawing the assignment theretofore made to this panel and reassigning the case to the court en…

(concurring and dissenting):

I concur in the affirmance of the convictions as to all three defendants, but *627 must respectfully dissent as to Part II vacating the sentences and remanding for re-sentencing as to Mollet and Moxley. I agree that because of the decision in Hayes and Meicke ( 474 F.2d 965 ), the sentence must be vacated and remanded as to Yamron.

The point which distinguishes Mollett and Moxley from Yamron and from the result in Hayes and Meicke lies in the fact that Mollet and Moxley were both sentenced under Section 5010(a), whereas Yamron, Hayes and Meicke were sentenced under Section 5010(b). In Hayes and Meicke Judge Trask and the panel were dealing only with a Section 5010(b) sentence. A Section 5010(a) sentence was not involved, discussed, nor is that sentencing alternative even cited by that panel. I recognize the seemingly broad language of the Hayes panel that “a combination of rehabilitative treatment and retributive punishment is not intended and is improper” when sentencing under the Federal Youth Corrections Act. 474 F.2d at 967 . Nevertheless, it is my view that as a matter of judicial interpretation and application and Congressional intent, Hayes…