Citations
- 278 F.2d 500
Full opinion text
SCHNACKENBERG, Circuit Judge.
This appeal by LeRoy Wiley, defendant, is from a judgment of the district court, entered October 22, 1959, denying his application for probation, a judgment entered October 23, 1958, insofar as it adjudged him guilty of a violation of 18 U.S.C.A. § 659, having been theretofore affirmed by this court (United States v. Wiley, 267 F.2d 453 455). ’
In his prior appeal, Wiley was unsuccessful in securing a reversal of the 1958 judgment, insofar as it adjudged him guilty on count II of an indictment which charged him and Ulysses McGhee, Joseph Helen, Joseph M. Kelley and Roman Jackson with unlawfully, willfully, knowingly and feloniously having in their possession certain dresses, unlawfully stolen while moving in an interstate shipment and known by them to have been stolen. However, on the prior appeal, we sustained Wiley’s contention that the district court was required by 18 U.S.C.A. § 3651 and 18 U.S.C.A. rule 32 of the Federal Rules of Criminal Procedure to receive and act upon his application for proba- ,. , •, u u 4.x , 4.x, . • 1 tion. Accordingly, we held that the trial . , j ■ 4. . . j . __ judge erred in refusing so to do, m reliance upon his announced standing policy that he does not consider an application for probation by a defendant who pleads not guilty and stands trial.
Although we affirmed the first judgment against Wiley, we remanded the cause to the district court for consideration of his application for probation. United States v. Wiley, supra, 267 F.2d 456.
It will be noted that the court purported to sentence Wiley originally in this case on October 23, 1958. It was four days later that the court sentenced ^ four c0_defendants. At that time it wag pointed ^ foy ^ goverament/s at. torney that McGhee had four prior felony convicyons and was characterized as the ‘