The opinion of the court was delivered by: CURRAN
The defendant in the above entitled cause was convicted of robbery. On appeal the Court of Appeals affirmed but a majority of the panel, with Judge Wright writing the opinion and Chief Judge Bazelon concurring, remanded the case to the District Court for a reconsideration of the sentence. Judge Bastian dissented to the remand, stating that there was no reversible error to affect the verdict.
'There is no indication here that the court, in imposing as it did the maximum penalty provided by the statute, made use of any of the aids to sentencing placed at its disposal by the Congress of the United States. Under the circumstances, we think the case should be remanded to the District Court for reconsideration of the sentence.'
Judge Wright, himself, says:
'Rule 32(c) of the Federal Rules of Criminal Procedure provides that a probation officer 'shall make a presentence investigation and report to the court before the imposition of sentence or the granting of probation unless the court otherwise directs." (Emphasis supplied).
There is nothing in the record to indicate that this court directed that a presentence investigation should not be made by a probation officer. As a matter of fact, the Probation Office filed a full and complete report prior to sentence.
The Probation Office reported:
'Reports from the various institutions that this defendant has been confined in have indicated that he has made a satisfactory adjustment with the exception of the Minnesota State Prison which indicated that he was an extreme problem, refusing to work, causing disturbances and attempting to instigate a riot.'
The report indicates that the defendant was in the Minnesota State Prison in the 1930's. The probation report also states:
'The classification record of the defendant in the New Jersey State Prison compiled in 1950 found him to be above average mental ability (IQ 115). The psychiatric diagnosis made of him on July 6, 1953 was 'psychopathic personality, unstable, unreliable, recidivistic, anti-social and poor prognosis for good adjustment if released."
These diagnoses were made nine years and twelve years prior to the imposition of sentence. At no time has the defendant been admitted to a mental institution. The Probation Officer also states:
'He presents a classical picture of the psychopathic offender * * *.'
This, of course, is merely the opinion of a probation officer and not one made by a psychiatrist or a psychologist. Despite his opinion, the Probation Officer did not see fit to refer the defendant to the Legal Psychiatric Services which he, himself, had the power to do under Title 24, § 106 of the District of Columbia Code. The Probation Officer recommended ...