Arnold L. Campbell v. United States

BURGER, Circuit Judge

(dissenting).

It seems to me this court is by indirection taking over the function of the trial judge in revising this sentence based entirely on an interpretation of the record most favorable to appellant and without hearing from the prosecution or the trial judge. Without benefit of reconsideration of these sentences by the trial judge, we cannot make a sound determination and for that reason I would remand the case to the District Court for resentencing on all counts.

It is undisputed that the District Court could have sentenced appellant for a substantially greater term than 6 to 18 years by making all sentences consecutive; since the offenses were directed against seven different victims on three different occasions, this would have been justified. This court now reduces the 6 to 18 year sentences of appellant to 4 to 12 years. The confusing record calls for re-sentencing by the trial judge, who is

surely in a better position to re-construet and re-evaluate the situation than are we. He may have notes or even independent recollection of the event on which he can properly rely.

The law vests in the District Court exclusive power over sentences and there is no warrant for us to interfere with that function, directly or indirectly.