United States of America v. Robert Miller, Appellant, 476 F.2d 555 (D.C. Cir. 1973)

This appeal is from a denial by the District Court of a motion to vacate sentence under 28 U.S.C. § 2255. Convicted by a jury of federal narcotics offenses, 26 U.S.C. § 4704(a) and 21 U.S.C. § 174, appellant received the mandatory minimum sentence of ten years. This court remanded for reconsideration of sentence in the light of our holding in Watson v. United States, 141 U.S.App. D.C. 335, 439 F.2d 442 (1970) (en banc), with respect to eligibility under the Nar cotic Addict Rehabilitation Act, 18 U.S.C. §§ 4251-55 (1970).¹ 

The District Judge thereupon committed appellant for observation and report under Title II of NARA.

The NARA staff at Danbury found that appellant was an addict, but concluded that he was not likely to respond affirmatively to the treatment program in use at Danbury. The report urged, however, that appellant should be in a program involving methadone maintenance and individual therapy.² 

The District Court, without (so far as appears from the record) giving appellant or his counsel notice of the report or an opportunity to be heard with respect to it, ordered appellant recommitted to the Attorney General to continue serving his ten-year sentence. Appellant asserts that this improperly cut off his right to allocution. Without finding it necessary to deal with the matter solely in terms of allocution, we do not view this as a satisfactory way of proceeding when the report came back from Danbury. Had appellant or his counsel been apprised of the contents of the report and been afforded a chance to make representations based upon it, it may be that the court would, at the least, have coupled with its sentence a recommendation or request that appellant be afforded treatment. As it is, appellant spent some 15 months in the D.C. jail after his recommitment and has since been at Lorton, in neither case, insofar as we can tell from the record and the representations at oral argument, with opportunity for treatment of his narcotics problem.

We remand for reconsideration of the sentence after notice and hearing with respect to the Danbury report. In so doing, we intimate no views with respect to precisely what other alternatives, if any, are available to the court by way of response to the Danbury suggestions. At oral argument before us, for example, counsel suggested that the nature of the particular program in being at Danbury may perhaps not be taken as defining the range of treatment available under a NARA commitment. In any event, counsel may make such representations upon remand as he believes to be warranted.

It is so ordered.