United States v. Morris Gene Ferguson

Appellant challenges the imposition at a probation revocation hearing of the entire remainder of a suspended sentence. He urges that the district court abused its discretion in refusing to take account of mitigating circumstances before passing sentence. We agree. The sentence below is vacated and the case is remanded for resen-tencing before a new district judge.

On July 14, 1978, in Tulsa, Oklahoma, Morris Gene Ferguson was sentenced to the custody of the Attorney General for 36 months for conspiracy to violate the Dyer Act, 18 U.S.C. § 2313 . Seventy-two days of the sentence were to be served in a jail-type institution. The remainder of the sentence was suspended and the defendant was placed on probation for 1,023 days. In April, 1979, while on probation, Ferguson entered a guilty plea to using paper similar to the currency of the United States, in violation of 18 U.S.C. § 491 (a). He was sentenced to nine months’ imprisonment, which he served at the Federal Penitentiary at McNeil Island, Washington. Jurisdiction of the defendant’s probation was transferred to the Western District of Washington and on August 7, 1979, a petition for revocation of defendant’s probation was…