United States v. Fred Anthony Hamilton

dissenting:

I respectfully dissent.

The only issue on this appeal is whether the district court abused the broad discretion granted it in determining that the appellant’s probation should be revoked for violations of the terms of that probation, United States v. Diaz-Burgos, 601 F.2d 983, 985 (9th Cir.1980), and I do not believe he did so.

Within certain broad limits, there is no doubt that the sentencing court’s exercise of discretion whether to revoke pi'obation can be overturned only for an abuse of discretion. Burns v. United States, 287 U.S. 216, 221-23 , 53 S.Ct. 154, 156 , 77 L.Ed. 266 (1932); United States v. McLeod, 608 F.2d 1076, 1079 (9th Cir.1979); United States v. Dane, 570 F.2d 840, 843 (9th Cir. 1977).

The record does not warrant the majority’s finding that the trial court exceeded its proper limits. The appellant conceded at the revocation hearing that he had not served the eleven weekends remaining in his term, nor had he appeared when required before the district court or the probation office. Those two omissions were undisputed violations of the terms of the probationary grant. The district court’s further finding that Hamilton was not lawfully employed in…

Appellant, Fred Anthony Hamilton, appeals from an order of the district court revoking his probation and reinstating his suspended five year sentence. We vacate the order and instruct the district court to reimpose the unfinished portion of Hamilton’s probation including the twenty-two days of confinement he has yet to serve.

On September 21,1976, Hamilton pleaded guilty to a charge of conspiracy to possess and sell checks stolen from a bank. On October 18,1976, he was sentenced to a five year term, with the sentence suspended on the condition he complete five years probation and spend 120 days in a jail-type setting. The court ruled that the 120 days could be served on consecutive weekends beginning October 23, 1976.

Hamilton completed forty-nine of the sixty weekends. Thereafter he did not report to jail. There is no evidence in the record that he was ever admonished for not com *1414 pleting his jail term. Indeed, the record below suggests that Hamilton’s probation officer did not consider his default to be a notable or serious breach of his probation conditions.

Despite his probation officer’s laxity, Hamilton on his own initiative informed the court of his default on June…

708 F.2d 1412 UNITED STATES of America, Plaintiff-Appellee, v. Fred Anthony HAMILTON, Defendant-Appellant. No. 81-1430X. United States Court of Appeals, Ninth Circuit. Argued and Submitted June 9, 1982. Decided June 21, 1983. William Landers, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee. Gregory Parkin, Costa Mesa, Cal., for defendant-appellant. Appeal from the United States District Court for the Central District of California. Before KENNEDY, POOLE, and REINHARDT, Circuit Judges. KENNEDY, Circuit Judge: 1 Appellant, Fred Anthony Hamilton, appeals from an order of the district court revoking his probation and reinstating his suspended five year sentence. We vacate the order and instruct the district court to reimpose the unfinished portion of Hamilton's probation including the twenty-two days of confinement he has yet to serve. 2 On September 21, 1976, Hamilton pleaded guilty to a charge of conspiracy to possess and sell checks stolen from a bank. On October 18, 1976, he was sentenced to a five year term, with the sentence suspended on the condition he complete five years probation and spend 120 days in a jail-type setting. The court ruled that the 120 days could…