(dissenting).
I would affirm the order of the district court.
Seventy years of consistent federal precedent underlie the rule that appellate courts have no power to review sentences which are lawfully imposed under statutes prescribing maximum limits. United States v. Rosenberg, 2 Cir., 195 F.2d 583, 604-607, certiorari denied 1952, 344 U.S. 838, 73 S.Ct. 20, 97 L.Ed. 687, and cases there cited; United States v. Sohnen, 2 Cir., 1960, 280 F.2d 109. This is a limitation not on the standard by which sentences should be reviewed, but on the jurisdiction of the court. See Rosenberg v. United States, 1952, 344 U.S. 889, 890, 73 S.Ct. 134, 97 L.Ed. 687 (Frankfurter, J.). When meting out a proper sentence a district judge is called upon to exercise his judgment in correlating a multitude of factors. It is a wise and deliberate policy that appellate courts apply in barring any review which would call for them to attempt to weigh once more the considerations which bear on this decision of the district judge. Moreover, the district judge has the “feel of the case,” derived in large part from the opportunity to observe the defendant; appellate courts have only a black and white record by which to weigh the relevant factors.
Although the Supreme Court has recently carved out an exception to this deeply rooted principle for “areas where Congress had not seen fit to impose limitations on the sentencing power,” Green v. United States, 1958, 356 U.S. 165, 188, 78 S.Ct. 632, 645, 2 L.Ed.2d 672, the duty of appellate courts in this regard is only to guard against the exercise of “unbridled discretion.” My brethren here believe this imposing standard to have been met by a showing that the course of prior proceedings mooted the coercive aspect of the appellant’s sentence and by a statement from the appellant that his refusal to testify was the result of fear of “gangster reprisals.” Both these considerations were urged in the district court before Judge Levet on the motion to reduce the appellant’s sentence. It was hardly a flagrant abuse of judicial power for Judge Levet to conclude, as I would, that the fear of reprisal, though it may call for more effective police protection, is not a legitimate excuse for a refusal to testify, and that the appellant’s success in delaying his day of reckoning for over three years, until long after the grand jury was discharged, should not redound to his benefit.
In my opinion my brethren set an unwise precedent in reviewing this sentence and in saying that in their judgment it is six months too long.