Pependrea v. United States

33 Citing cases

  1. United States v. Rivera-Marquez

    519 F.2d 1227 (9th Cir. 1975)   Cited 25 times
    In United States v. Rivera-Marquez, 519 F.2d 1227 (9th Cir.), cert. denied, 423 U.S. 949, 96 S.Ct. 369, 46 L.Ed.2d 285 (1975), customs officials made a pat-down search.

    In this case we believe that it does. The scope of our review of sentences under the Eighth Amendment was defined in Pependrea v. United States, 275 F.2d 325 (9th Cir. 1960). "It is well settled that a sentence within a valid statute cannot amount to `cruel and unusual punishment,' and that when a statute provides for such punishment, the statute only can be attacked * * *."

  2. State v. Stiles

    2009 Ohio 89 (Ohio Ct. App. 2009)   Cited 1 times

    The Court further noted that "[a]s a general rule, a sentence that falls within the terms of a valid statute cannot amount to a cruel and unusual punishment." Id. at ยถ 21, citing McDougle, 1 Ohio St.2d at 69, citing Martin v. United States (C.A.9, 1963), 317 F.2d 753 (overruled on other grounds, United tates v. Bishop (1973), 412 U.S. 346, 93 S.Ct. 2008, 36 L.Ed.2d 941); Pependrea . United States (C.A.9, 1960), 275 F.2d 325; and United States v. Rosenberg (C.A.2, 1952), 195 F.2d 583. {ยถ 52} The trial court sentenced Stiles to fifteen (15) years to life imprisonment on count one, murder in violation of R.C. 2903.02(B).

  3. United States v. Tateo

    377 U.S. 463 (1964)   Cited 640 times   2 Legal Analyses
    Holding the Double Jeopardy Clause "does not preclude the Government's retrying a defendant whose conviction is set aside because of an error in the proceedings leading to conviction"

    It is also suggested that Tateo could have proceeded to verdict and appealed the sentence. The reply to this by his counsel in this Court seems to me unanswerable: "But it would be an audacious trial lawyer indeed who would advise a client in a Federal Court to risk a life in prison without hope of parole on the basis of an appellate review of his sentence, for there is no power to review a sentence within the statutory maximum either in the Supreme Court ( Gore v. United States, 357 U.S. 386, 393) or in the Court of Appeals ( Pependrea v. United States, 275 F.2d 325, 329 (C.A. 9))."Whether counsel is correct in this conclusion, compare United States v. Wiley, 278 F.2d 500; Note, 109 U. of Pa. L. Rev. 422 (1961), is beside the point; the dilemma is real under the authorities.

  4. Davis v. Davis

    585 F.2d 1226 (4th Cir. 1978)   Cited 7 times
    In Davis v. Davis, 585 F.2d 1226 (1978), reversing Davis v. Zahradnick, 432 F. Supp. 444 (W.D.Va. 1977), the Fourth Circuit refused to overturn a forty year sentence for possessing and distributing approximately nine ounces of marijuana.

    Davis has not attacked the validity of the statute imposing the sentence for his crime; he has instead claimed that, in his particular case, the sentences imposed upon him were cruel and unusual even though they were within statutory limits. While some circuits rule that an attack on a sentence within statutory limits will be considered an attack on the sentencing statute, see e. g., Pependrea v. United States, 275 F.2d 325 (9th Cir. 1960), cf. Weems, 217 U.S. p. 382, 30 S.Ct. 544, this circuit apparently allows a convict to present a claim in the manner by which Davis has proceeded, i.e. whether the "sentence in this case is so excessive and disproportionate to the underlying offenses as to constitute cruel and unusual punishment." (italics in original) Hart v. Coiner, 483 F.2d 136, 139 (4th Cir. 1973), cert. den. 415 U.S. 938, 94 S.Ct. 1454, 39 L.Ed.2d 495 (1974).

  5. United States v. Washington

    578 F.2d 256 (9th Cir. 1978)   Cited 18 times
    Holding that a sentence which is within the limits set by a valid statute may not be overturned on appeal as cruel and unusual

    It is established in this circuit that a sentence which is within the limits set by a valid statute may not be overturned on appeal as cruel and unusual. United States v. Rivera-Marquez, 519 F.2d 1227, 1229 (9th Cir.), cert. denied, 423 U.S. 949, 96 S.Ct. 369, 46 L.Ed.2d 285 (1975); Anthony v. United States, 331 F.2d 687, 693-4 (9th Cir.), cert. denied, 368 U.S. 852, 82 S.Ct. 85, 7 L.Ed.2d 49 (1961); Pependrea v. United States, 275 F.2d 325, 329-30 (9th Cir. 1960). Furthermore, a sentence must "at least appear to be cruel and unusual before its authorizing statute can be attacked on Eighth Amendment grounds."

  6. Cooley v. United States

    501 F.2d 1249 (9th Cir. 1974)   Cited 59 times
    In Cooley v. United States, 501 F.2d 1249, 1252 (9th Cir. 1974), cert. denied, 419 U.S. 1123, 95 S.Ct. 809, 42 L.Ed.2d 824 (1975), we held that the omission of the colloquy between the defendant and the court was not per se reversible error, when the record reveals a knowing and intelligent waiver. That case involved an unusual fact situation in which the background and experience of the defendant in legal matters was apparent from the record.

    `"If there is one rule in the federal criminal practice which is firmly established, it is that the appellate court has no control over a sentence which is within the limits allowed by statute." Gurera v. United States, 8 Cir., 1930, 40 F.2d 338, 340.' Pependrea v. United States, 275 F.2d 325, 329, 330 (9th Cir. 1960); see also: Bowman v. United States, 350 F.2d 913, 917 (9th Cir. 1965)."

  7. United States v. Birnbaum

    402 F.2d 24 (2d Cir. 1968)   Cited 6 times

    The question before us for decision is not whether this court or another sentencing judge might have reacted differently to the request for modification of the sentence. Absent an abuse of discretion, Judge Cooper's determination must stand and cannot be disturbed on appeal. E.g., Heath v. United States, 375 F.2d 521 (8 Cir. 1967); United States v. Piccioli, 352 F.2d 856, 859-860 (2 Cir. 1965); Mount v. United States, 333 F.2d 39, 45 (5 Cir.), cert. denied, 379 U.S. 900, 85 S.Ct. 188, 13 L.Ed.2d 175 (1964); Pependrea v. United States, 275 F.2d 325, 329-330 (9 Cir. 1960); Roth v. United States, 255 F.2d 440 (2 Cir.), cert. denied, 358 U.S. 819, 79 S.Ct. 31, 3 L.Ed.2d 61 (1958); United States v. Rosenberg, 195 F.2d 583, 603-609 (2 Cir.), cert. denied, 344 U.S. 838, 73 S.Ct. 20, 97 L.Ed. 687 (1952). Moreover, there being no abuse of discretion which would permit appellate reversal of the sentencing judge's decision to adhere to the unreviewable sentence he had originally imposed, it would also be improper to permit review through the use of a collateral method, such as a writ of coram nobis.

  8. United States v. Dawson

    400 F.2d 194 (2d Cir. 1968)   Cited 64 times

    ter observation leads into appellant's final contention regarding count 1, that the sentence imposed thereunder (two years imprisonment), considering the relatively minor tax evasions proved by the Government was harsh to the point of constituting cruel and unusual punishment in violation of U.S.Const. amend. VIII. The count 1 conviction was under 26 U.S.C. ยง 7201, which provides for a maximum sentence of five years imprisonment or a $10,000 fine or both. It is well settled that a sentence imposed within the limits of a statute cannot amount to cruel and unusual punishment, and that when a statute provides for punishment thought to be violative of the amendment the constitutionality of the statute itself must be attacked. See, e.g., United States v. Rosenberg, 195 F.2d 583, 607-609 (2 Cir.), cert. denied, 344 U.S. 838, 73 S.Ct. 20, 97 L.Ed. 687 rehearing denied with mem. opinion, 344 U.S. 889, 73 S.Ct. 134, 97 L.Ed. 652 (1952); Martin v. United States, 317 F.2d 753, 755 (9 Cir. 1963); Pependrea v. United States, 275 F.2d 325, 329-330 (9 Cir. 1960). No attack is made on the validity of the statute here.

  9. Pocatello v. United States

    394 F.2d 115 (9th Cir. 1968)   Cited 12 times
    Affirming district court's admission of five-year-old's testimony

    The appellate court has no power to modify or reduce the sentence. Pependrea v. United States, 9 Cir. 1960, 275 F.2d 325, 329. Any motion for reduction of sentence must be addressed to the district court under Rule 35, F.R.Crim.P. The crime of "rape" is included among the offenses over which the federal courts have jurisdiction under section 1153, which provides that the "offense of rape shall be defined in accordance with the laws of the State in which the offense was committed * * *". Section 18-6101 of the Idaho Code provides in pertinent part:

  10. Bowman v. United States

    350 F.2d 913 (9th Cir. 1965)   Cited 48 times
    In Bowman v. United States, 350 F.2d 913, 915 (9th Cir. 1965), the court found that in light of the Supreme Court's decision in Murphy v. Waterfront Commission, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964), the trial court had erred in overruling a claim of privilege against self-incrimination asserted by witnesses called by the government to testify against defendant.

    In any event, this court has repeatedly held that it has no authority to review the sentence so long as it falls within the statutory limits. Anthony v. United States, 9 Cir., 1964, 331 F.2d 687; Ellis v. United States, 9 Cir., 1963, 321 F.2d 931; Jones v. United States, 1963, 117 U.S.App.D.C. 169, 327 F.2d 867; Pependrea v. United States, 9 Cir., 1960, 275 F.2d 325; Bryson v. United States, 9 Cir., 1959, 265 F.2d 9; Flores v. United States, 9 Cir., 1956, 238 F.2d 758; Brown v. United States, 9 Cir., 1955, 222 F.2d 293; Berg v. United States, 9 Cir., 1949, 176 F.2d 122; Biren v. United States, 9 Cir., 1953, 202 F.2d 440. Affirmed.