concurring.
I concur in the judgment affirming the conviction. I do so because I believe under the present status of the law this court has only a very limited power to review the sentence of a district court in a criminal case. I must respectfully disagree with the district court’s sentence, primarily for the reasons set forth in the dissent since I feel under all the facts and existing circumstances that the administration of criminal justice would be better served by placing the defendant on probation. Nonetheless I feel the sentence was within the discretion of the district court; that the district court exercised judgmental discretion in making an individualized sentence. Once this determination is made I sincerely question whether this court has authority to set aside the sentence made and substitute its own judgment.
Nonetheless, in view of the undue emphasis the district court placed upon the alleged use of the false transcript with the probation office,1 I encourage counsel to return to the district court under Fed.Crim.Rule 35 and once again seek review of the sentence.
It is difficult for me to impute bad motive to the defendant in furnishing the transcript to the probation officer. She was requested to furnish the officer with the documents she had used in obtaining employment. She did so and should not be faulted for complying with the request. Even assuming that it may be stated that she falsely misrepresented her school experience to the probation officer, I have further difficulty in understanding what “net gain” she might obtain by doing so. Evidently the trial court felt that in furnishing the false transcript she was not fully repentant and would return to her fraudulent ways. I suggest that there is such a remote connection, particularly where the factual record shows that the transcript was forged several years previously, that it should have *1125little or no bearing on the sentence given. The fact remains that Mrs. Short voluntarily turned herself in to the authorities and if given the opportunity has offered to make restitution. Certainly our prisons should be the place of last resort to confine incorrigibles and law breakers. Supervised probation holds a better chance for rehabilitating a working penitent mother than a caged cell. Hopefully, defendant will return to the district court and in review of all the factors involved the court will reconsider the sentence made.
. At the Rule 35 proceeding in the district court the trial judge stated:
I’ll tell you very frankly, ma’am, one of the reasons why the sentence was even as rough as it was, if it is rough, was that the information contained concerning the transcript .
Like I say, if the Court had been so advised at that time, the results would have been considerably different.