Unpublished Disposition, 895 F.2d 1418 (9th Cir. 1988)

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U.S. Court of Appeals for the Ninth Circuit - 895 F.2d 1418 (9th Cir. 1988)

UNITED STATES of America, Plaintiff-Appellee,v.Henry Wesley COWANS, Defendant-Appellant.

No. 88-1423.

United States Court of Appeals, Ninth Circuit.

Submitted Feb. 7, 1990.* Decided Feb. 16, 1990.

Before WALLACE, ALARCON and LEAVY, Circuit Judges.


MEMORANDUM** 

Henry Wesley Cowans appeals from the district court's imposition of a ten-year sentence after Cowans pleaded guilty to voluntary manslaughter. This is the maximum sentence under 18 U.S.C. § 1112. Cowans argues that the failure of the district court "to pay attention to the details of the offense is an abuse of discretion." Appellant's Opening Brief at 6.

On April 26, 1988, Cowans pleaded guilty to voluntary manslaughter. The crime occurred on July 1, 1987, prior to the effective date of the Sentencing Guidelines. "A sentence within statutory limits ... is generally not subject to appellate review, for trial courts are afforded virtually unfettered discretion in sentencing." United States v. Stewart, 820 F.2d 1107, 1108 (9th Cir.), cert. denied, 484 U.S. 867 (1987); United States v. Tucker, 404 U.S. 443, 447 (1972). An exception to this rule exists when the district court refuses to exercise its discretion. United States v. Branco, 798 F.2d 1302, 1305 (9th Cir. 1986) (judge had a policy of always imposing the maximum sentence for certain crimes). In such a case we review the sentencing process to ensure that the court exercised its discretion on an individualized basis. Id.

The record shows that the district court properly exercised its discretion. The district court considered Cowans' factual representations concerning the manner in which the homicide occurred. In imposing sentence, the trial judge noted that Cowans had pleaded guilty to voluntary manslaughter. For that reason, the district court attached little weight to Cowans' argument that the deceased had a knife in his hand. Instead, the judge focused on the potential danger to society posed by Cowans as evidenced by his past arrests and convictions, and previous violent behavior. The record does not demonstrate that the district court was following a rigid policy of imposing the maximum sentence for voluntary manslaughter.

The district court properly exercised its discretion in sentencing Cowans to the maximum term.

AFFIRMED.

 *

The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument pursuant to Fed. R. App. P. 34(a), Ninth Circuit Rule 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

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