481 F. 2d 1062 - United States v. T Maude

This appeal has brought before us appellant's conviction, by a jury, of violations of 18 U.S.C. Sec. 5031 asserted in a two-count indictment. One of the counts charged the forging and counterfeiting of a postmarking stamp;2 the other charged the knowing possession of the stamp with intent to use it.3 Appellant attacks the conviction on a number of grounds, which have been ably advanced by his counsel.4 We have examined each contention with care and, finding no error warranting reversal, we have affirmed.5

* The events underlying the conviction were established by the Government's uncontradicted evidence at appellant's trial.6 Appellant entered the office of the Hay Rubber Stamp Company7 and, in the name "Robert M. Dix," placed an order for a stamp and a set of dates. By appellant's specifications, the stamp was to make an impression consisting in two concentric circles, the inscription "Greenville, N. C." between the circles, and a date inside the smaller circle. In design and dimensions, the stamp invoiced was identical to an all-purpose dating stamp commonly used in post offices.8

The Hay Company had previously been requested by postal authorities to maintain an outlook, for orders of stamps of that kind, with which money orders were being counterfeited.9 Since appellant displayed no evidence of authority to procure the stamp on behalf of the Post Office Department, Hay promptly notified Inspector Alexander McRae, and was instructed to make the stamp as directed. Four days later, Rufus F. Bryant called at Hay for "the order for Mr. Dix," displayed a copy of the invoice, and Hay delivered the stamp and dates to him. Bryant then walked to a parked car in which appellant was seated, and both Bryant and appellant were immediately arrested.10

An on-scene search of appellant uncovered a piece of paper on which appeared Hay's name, address and telephone number, and a rough sketch seemingly depicting the face of a circular stamp. Later that day, Inspector McRae obtained a warrant to search appellant's apartment for money orders recently stolen from a post office.11 The search yielded no money orders, but did turn up identification cards bearing the name "Roger M. Dix."12 Inspector McRae, noting the similarity of that name to the name given when the stamp was ordered,13 seized the cards and, over appellant's objection, the Government introduced them into evidence at trial. The real Roger M. Dix testified that he did not know appellant or how he got the cards. He added that they had been missing about six months, and that he had not given them to appellant or anyone else.

The stamp ordered by appellant-GX-3, as it was marked as an exhibit at trial-was fabricated as appellant directed. It bears repeating that, used with standardized dates, it made an impression consisting in two concentric circles with "Greenville, N.C." between the circles and a date inside the inner circle; and that, as so made, it was an exact duplicate of an all-purpose stamp which sees general service in post offices. Testimony at the trial dealt extensively with the nature and frequency of the functions which its genuine counterpart performed, and differences in the functioning of other stamps.14

The Post Office Department has adopted a variety of stamps for postmarking and other purposes. Most post offices postmark first-class mail with a stamped impression containing a single circle, the initials "U.S.P.O.," and straight or wavy lines which cancel the postage stamps attached. The impression made by the all-purpose stamp, on the other hand, sometimes lacks the designation "U.S.P.O."15 and always omits the lines. That stamp is used principally to validate money orders and mail receipts, but it is also used in postmarking. The all-purpose stamp is regularly employed in postmarking registered and certified mail,16 and in smaller post offices also to postmark first-class mail.17 A third to a fourth of the post offices in the United States use stamps which do not have the legend "U.S.P.O.,"18 and some post offices have only one type of stamp-the all-purpose model.

At appellant's trial, the Government presented five witnesses and twelve exhibits. The defense tendered four exhibits, two of which were admitted,19 but presented no witnesses. The jury found appellant guilty on both counts, and the judge imposed a general sentence of imprisonment for twenty months to five years.

Each of the two counts on which appellant was convicted charged activities involving a forged or counterfeited "postmarking stamp." Appellant first contends that these words, as used in Section 503,20 the underlying statute, refer to objects devoted by the Post Office Department solely to the cancellation of postage stamps on mail matter. Since most post offices cancel first-class mail with a different type of stamp,21 and since the all-purpose stamp which GX-3 simulates is more generally employed in operations other than postmarking,22 appellant argues that GX-3, the stamp fabricated on his order, falls outside the ambit of the statute.

Section 503 does not define "postmarking stamp," nor is a definition contained elsewhere in postal legislation. We think, however, that the meaning of the term is clear enough. It is commonly known that a postmark is the official mark which the Post Office Department places on mail,23 and a stamp regularly used to impress that mark is obviously a postmarking stamp. That understanding is thoroughly consistent with the language of Section 503, and it finds solid support in its legislative history.24 Whatever else the term "postmarking stamp" may embrace,25 we are satisfied that it intercepts at least that much.26

This does not mean, however, that only those stamps which are used exclusively for marking mail, and which are put to that use in all post offices, are postmarking stamps within the meaning of Section 503. Nothing in the statutory language or legislative history suggests that narrow construction; on the contrary, the evident legislative purpose negates such limitations. The congressional concern was the ease with which false postmarkings could be and were being made,27 and the "increasing necessity" of curbing them.28 That objective hardly leaves room for differentiating postmarking devices according to the number of post offices in which they are to be found, or to the singleness or multiplicity of their uses. Rather, the clear purpose of Section 503 is to outlaw the falsification of any official mail-marking stamp, and thereby to eliminate the capability for impressing mailmarks which give the appearance of genuineness.29 In our view, it suffices that the imitated stamp does substantial, though not the entire, postmarking service in the Nation's post offices, and notwithstanding its engagement in other postal functions as well.

GX-3 survives that test. The uncontradicted evidence at appellant's trial established that the Post Office Department's all-purpose stamp, of which GX-3 was a copy, is regularly utilized to postmarking registered and certified mail.30 It disclosed, too, that a number of smaller post offices across the country also use the all-purpose stamp for postmarking first-class mail.31 It is immaterial, then, that most post offices do not employ the all-purpose stamp for postmarking first-class mail, or that many employ it for a variety of purposes. We sustain the jury's finding, implicit in its verdict, that GX-3 was a postmarking stamp within the contemplation of Section 503.

As an alternative to his first contention, appellant argues that unless the expression "postmarking stamp" is limited strictly to devices used to cancel postage stamps, Section 503 becomes unconstitutionally vague. More specifically, appellant's position, in his words, is that "[i]f the term 'postmarking stamp' . . . is to be given a construction sufficiently broad to encompass GX-3-i. e., broad enough to encompass an all-purpose rubber dating stamp primarily used to stamp receipts and validate postal money orders, and bearing no wavy lines or 'U.S.P.O.' designation, but which some small post offices also use as a postmark-then the phrase lacks the 'technical or other special meaning' required by the Constitution."32 Appellant's approach thus proceeds on the premise that persons of ordinary intelligence would not know that a stamp such as GX-3 is used not only to validate money orders but also to postmark mail matter;33 and that resultantly the statute unconstitutionally compels them to speculate as to its meaning, and thus to act, if at all, at their peril.34 This rationale, however, ignores the realities which are as much observed in applying the void-for-vagueness precept as well as other legal principles.

To be sure, penal statutes must "convey[] sufficiently definite warnings as to the proscribed conduct"35 to enable affected citizens to ascertain in advance the activities they are legally free to pursue.36 As we have declared, "[t]he imposition of criminal liability for behavior which a person could not reasonably understand to be prohibited offends the most rudimentary consideration of fairness."37 And as the Supreme Court, summing up the central teaching of the cases, has said, a "statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law."38

On the other hand, due process does not demand unattainable feats of statutory clarity.39 The void-for-vagueness doctrine "is not a principle designed to convert into a constitutional dilemma the practical difficulties in drawing criminal statutes both general enough to take into account a variety of human conduct and sufficiently specific to provide fair warning that certain kinds of conduct are prohibitive."40 A law is sufficiently definite "if the general class of offenses to which [it] is directed is plainly within its terms, . . even though marginal cases could be put where doubts might arise."41 And surely it suffices that the statutory language gives definite warning of the prohibited conduct when measured by general understanding.42 Not only is a penal statute sufficiently certain when it employs "words or phrases having a technical or other special meaning,"43 as appellant suggests,44 but also when its terminology, taken in context, is commonly grasped.45 Particularly is this so where, as here, scienter is made an essential element of the offense.46

We do not perceive in Section 503 any vagueness offensive to due process. As we have said, the term "postmarking" is commonly understood to refer to a mark officially placed by the Post Office Department on mail matter, and manifestly a "postmarking stamp" is a stamp used to impress such a mark.47 We think ordinary people would realize that the prohibitions of Section 503 extend to the forgery and counterfeiting of such a stamp, and to the possession of a forged or counterfeited duplicate of such a stamp with intent to use it. Neither of these offenses-forgery, counterfeiting nor possession-can be committed unless the infringing acts are accompanied by an evil intent.48 A good deal of ambiguity can be dissipated when "the statute adds as a condition that the conduct is criminal only in case the accused knows that what he intends is wrong,"49 and no residuum of doubt can be detected here. We need not speculate as to whether there could be instances in which the application of Section 503 might become doubtful. It suffices that the general category of offenses which it clearly embraces includes the present case.50

The admission into evidence of the identification cards of Roger M. Dix, which were discovered in appellant's apartment, is the basis for further complaint. Shortly after appellant's arrest, Inspector McRae obtained a warrant authorizing a search of the apartment and the seizure of any stolen postal money orders found therein.51 During the course of the search, Inspector McRae came upon the cards in a bureau drawer and, noting the name they bore and recalling that appellant had used a similar name in ordering the stamp in question,52 he appropriated them. The controversy over their admission springs from the consideration that they were not mentioned in the search warrant as items to be seized.53 The trial judge, over appellant's objection, allowed their introduction.54

The Fourth Amendment provides that search warrants shall "particularly describ[e] the . . . things to be seized."55 Nearly a half century ago the Supreme Court, in Marron v. United States,56 declared that "[t]he requirement that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant."57 Some other courts have similarly held that seizure of an item not specifically described in the warrant legalizing the search was unlawful.58

Nonetheless, over the years since Marron, still other courts have realized that the broadly-stated doctrine of that case has its exceptions.59 For a generation, we ourselves have considered it "well established that given a lawful search some things may be seized in connection therewith which are not described in the warrant. . . ."60 A situation exceptional to Marron-which Marron itself recognizes-is found where, upon execution of a search warrant, a person is arrested on the premises and a search of the premises is independently justifiable as incidental to the arrest.61 Another exceptional situation, bred in the days before Warden v. Hayden,62 arises when the undescribed articles seized are the instrumentalities or fruits of crime.63 Without undertaking to catalogue all possible qualifications upon Marron, we hold that the situation before us invoked yet another.

Inspector McRae entered appellant's apartment pursuant to the authority conferred by the search warrant, the validity of which is not in issue. Nothing before us suggests that, at the time he came across the cards, he was not properly engaged in execution of the warrant. More than a decade ago we held, in Johnson v. United States,64 that where that is so, the fact that an incriminating article discovered is unspecified in the warrant does not impugn the validity of its seizure.65 That conclusion is supported by highly respectable authority elsewhere,66 and once again we reach it here.

The rationale we find appealing is set forth in the principal opinion in Coolidge v. New Hampshire.67 As there stated, "[i]t is well established that under certain circumstances the police may seize evidence in plain view without a warrant."68 And as the opinion continues, "[a]n example of the applicability of the 'plain view' doctrine is the situation in which the police have a warrant to search a given area for specified objects, and in the course of the search come across some other article of incriminating character."69 For "[w]hat the 'plain view' cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused. The doctrine serves to supplement the prior justification-whether it be a warrant for another object, hot pursuit, search incident to lawful arrest, or some other legitimate reason for being present unconnected with a search directed toward the accused-and permits the warrantless seizure."70 And "given the initial intrusion, the seizure of an object in plain view . . . does not convert the search into a general or exploratory one,"71 which was the paramount concern in Marron.72

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In our view, the case at bar is readily and fully encompassed by these principles. We perceive no reason why they should not be applied.73 We hold that the identification cards in question were lawfully seized by Inspector McRae, and were properly admitted into evidence by the trial judge.

Another major challenge to appellant's conviction asserts that the evidence adduced at his trial was not sufficient to support findings by the jury that he entertained the criminal intent required by Section 503. One of the offenses specified in that section-by the first clause-is the "forg[ing] or counterfeit[ing] of any postmarking stamp."74 which undoubtedly must include as an element of the offense the intent to falsify-to make the bogus article appear to be genuine-which those terms inherently imply.75 Another Section 503 offense-specified by the third clause-is the "possess[ion]" "with intent to use or sell, any forged or counterfeited postmarking stamp."76

These were the two crimes which indictment in this case laid at appellant's doorstep. The first count of the indictment, which was predicated on the first clause, charged appellant with causing the forgery and counterfeiting of a postmarking stamp "with intent to make it appear that such postmarking stamp was genuine."77 The second count, founded on the third clause, charged appellant with possession of a forged and counterfeited postmarking stamp "with intent to use" it. Our careful examination of the trial record convinces us that the evidence legally authorized the jury, if it were so inclined, to infer the existence of the mental elements of the two charges.

As everybody knows, because of the impossibility of demonstrating directly just what a person might at any given time have in mind, intent must be proved circumstantially by resort to the surroundings of the objective activities. In the instant case, the trial judge gave to the jury an instruction incorporating that understanding, and what the jury might have found relevant in the evidence may readily be summarized. Appellant placed the order for GX-3, a stamp identical to the all-purpose stamp used in post offices. He ordered the stamp under the name "Robert M. Dix," and when Bryant picked up the stamp he said that he had come for the order "for Mr. Dix." At the time, as the search of appellant's apartment was to reveal, appellant had identification cards which could aid an impersonation of Dix. The all-purpose stamp which GX-3 duplicated is regularly employed both to postmark mail and to validate postal money orders.78

We believe prudent jurors might reasonably deduce from this evidence that appellant ordered the stamp with intent to falsify an all-purpose stamp-a postmarking stamp79-as charged in the first count of the indictment. The jury could logically have inferred that these several events were not unconnected coincidences, but were manifestations of a plan preconceived by appellant and Bryant to acquire the stamp for use in a scheme involving either the false postmarking of mail or, much more probably, the fraudulent validation of stolen money orders. The innocence of the transaction was seriously jeopardized by the use of Dix' name both when the order was placed and when it was picked up, and by the fact that appellant possessed Dix' identification cards under circumstances strongly indicating unlawful appropriation. The affair becomes the more suspicious when it is realized that acquisition or possession of a bogus postmarking stamp can hardly serve any aim other than contemplated criminality. The jury was free, of course, to conclude that these facts were unrelated and that somehow appellant was a victim of circumstances. But that is not to say that an inference of innocent activity was compelled or that the conclusion which the jury did reach was unreasonable.80 On the evidence here, the choice was one for the jury.

We also believe that possession of a false postmarking stamp with a view to its use as the mechanism by which false impressions are to be made either on mail matter or on postal money orders is an intent within the ambit of the third clause of Section 503. A goal involving a marking on mail which simulates an official marking is ipso facto an intent to falsify a postmark. Moreover, in our view, a violation of the third-clause proscription of Section 503 may follow equally from an intent to apply a false postmarking stamp to illicit uses other than postmarking, including the fraudulent validation of stolen money orders.

Appellant argues, however, that the intent which the first and third clauses demand is exclusively the intent to fabricate a postmarking stamp or possess a fabricated postmarking stamp for use in falsifying postmarks on mail, and that a purpose to use it solely to falsify an official mark on other postal items negates any Section 503 violation. He further complains that the trial judge erred in failing to instruct the jury that appellant must have had the specific intent to forge or counterfeit a postmarking stamp, or to possess it for use, as a postmarking stamp, as opposed to an all-purpose dating stamp. We are unable to import these limitations into Section 503.

True it is, as we have held, that the stamp in question must be a forged or counterfeited postmarking stamp-because Congress has said so81-and that an intent to use it to falsify postmarks on mail suffices under either clause. But we do not find within the language82 or the legislative history83 of Section 503 a moratorium on all illegitimate purposes save those which would falsify postmarks on mail. On the contrary, the language of the first and third clauses condemns the "forg[ing] or counterfeit[ing] [of] any postmarking stamp" and the "possess[ion] with intent to use or sell" of "any forged or counterfeited postmarking stamp,"84 and so Section 503 has read from its inception.85 This language hardly connotes a confinement of its scope to those forged and counterfeited postmarking stamps which are fabricated or possessed just to falsify postmarks on mail.86 Rather, the language contrasts sharply with that of the second clause-which was put into the section by amendment of the original prohibition87-which proscribes the "forg[ing] or counterfeit[ing]" of "any . . . impression" [of an official postmarking stamp] "with intent to make it appear that such impression is a genuine postmark."88 This contrast, careful analysis discloses, was not a grammatical accident89 but, history tells us, a deliberate step to enlarge rather than constrict the purview of Section 503.90 In sum, the first and third clauses recognize the evil proclivities of the false postmarking stamp for what they really are, and outlaws the fabrication of postmarking stamps with intent to falsify them as genuine, and the possession of bogus postmarking stamps with intent to put them to illicit uses. That is hardly consistent with the notion that we are at liberty to write into those clauses limitations which Congress has not seen fit to impose itself.

As appears vividly from the undisputed evidence, the all-purpose stamp, which qualifies as a postmarking stamp,91 does service in other postal operations as well, including the validation of postal money orders.92 By the same token, a stamp which can impress a false postmark on mail matter-imitating the official postmark made by the all-purpose stamp-possesses also the capability of falsifying the same official marking on money orders which the all-purpose stamp is customarily employed to make.93 We think the objective of Section 503, in terms of specific intent which outlaws fabrication or possession of a forged or counterfeit postmarking stamp, was to intercept every scheme which would put the false stamp to a use which would simulate a use which the Post Office Department officially makes of the genuine article. And the evidence clearly supported the inference that appellant and Bryant had in mind the false validation of postal money orders. We accordingly reject appellant's claim that the state of the evidence legally disabled the jury from finding the intent prerequisite to conviction. We reject also the concomitant contention that the trial judge's specific-intent instructions, which embodied the views we have expressed, gave the jury too much range to make the necessary determinations.

After the evidentiary presentations were completed, both sides asked the trial court to include in its charge to the jury an instruction defining the term "postmark."94 The trial judge denied both requests. The charge which the judge gave included instructions to the effect that prerequisites to conviction were proof beyond a reasonable doubt, on the first count, that appellant forged or counterfeited a "postmarking stamp" and, on the second, that he possessed a forged or counterfeited "postmarking stamp." Appellant contends that the judge's refusal to elaborate on the meaning of these terms was error.

It is, of course, of the utmost importance that the judge instruct the jury, "clearly and fully, on the principles of law that apply to and govern the case on trial."95 This duty extends to careful explanation of the essential elements of the offense,96 and to accurate definition of words and phrases having technical meanings.97 Patently, however, there is no need for the court to tell the jurors what as individuals they already know. Thus it is unnecessary for the trial judge in his charge to define words which are in common use, and are such as are readily comprehended by persons of ordinary intelligence, where the words are applied in the judge's instructions in their conventional sense.98

Appellant's instant claim is substantially similar to two others which we have already found lacking.99 In so doing, we pointed out in each instance that the word "postmark" has a widely accepted and familiar meaning-an official mark of the Post Office Department on matter transmitted through the mails.100 As one court has said, "[t]hough 'postmark' is peculiar to the mails it is a word commonly used and understood. It is not necessary to consider it as a technical word."101 We have no cause to believe that common understanding of a postmarking stamp -a stamp officially used to make a postmark-is any less pervasive. In the case at bar, the jury needed only to draw upon this fund of general knowledge to determine whether GX-3 was a postmarking stamp. Indeed, appellant's requested definition,102 which matched popular understanding of the defined term,103 would have added nothing to the jury's store of knowledge.

We are advertent, however, to the running debate between appellant and the Government, both in the trial court and here, as to the precise concept of a postmarking stamp which Section 503 embodies.104 But the question at hand-with reference to the court's refusal to define "postmark"-is not so much what the statutory language actually means as it is what the jurors at appellant's trial must have felt it meant. It matters not that the reach of Section 503 may be broader than the common image of a postmarking stamp, for it is evident from the verdict that even under the narrower concept-appellant's definition105-he was guilty in the eyes of the jury. So, even if, as the Government asserts, the statutory term "postmarking stamp" encompasses stamps used to validate postal money orders as well as those used to officially mark mail, the jury's verdict, presumably based upon the narrower understanding, was fully valid.

We are mindful, too, that the evidence showed that the all-purpose stamp, which GX-3 copied, is utilized by post offices both to postmark mail and to authenticate money orders.106 That circumstance left open the possibility that one or more jurors, lacking the guidance that a definition by the court would have afforded, might have deemed GX-3 a postmarking stamp simply because of its use as to money orders and the further possibility that that view might not conform to Section 503.107 We think, however, the these contingencies do not impugn the verdict. The evidence demonstrated that GX-3's genuine counterpart-the all-purpose stamp-is a stamp employed extensively to postmark mail,108 and thus is surely a postmarking stamp within the contemplation of Section 503.109 Unless that evidence was totally rejected, it could only lead to a finding that GX-3 was a mail-marking stamp, whatever else as a stamp it might be. With the evidence on that score compelling, because highly significant and wholly uncontradicted, it seems extremely unlikely that any juror could have doubted that such was the fact. We hold that any conceivable error resultant from the court's failure to give an instruction confining the concept of postmarking stamps to mail-marking devices was in any event harmless.110

We come, lastly, to appellant's contention that Section 503 does not authorize conviction under the first and third clauses simultaneously. The point he seeks to make is that the act of forging and counterfeiting a postmarking stamp and the act of possessing such a stamp merged into a single crime for which there could be but a single conviction. We do not agree.

The problem here is not one of consecutive sentences,111 for the trial judge imposed a general sentence on the two counts, but rather is one of multiple convictions.112 The question is "[w]hat Congress has made the allowable unit of prosecution,"113 and in the absence of a contrary legislative intent114 "the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not."115

When we apply that test to the instant case, we are led to the conclusion that the two offenses of which appellant was convicted did not merge. Conviction under the first clause of Section 503 required proof that appellant caused the forging or counterfeiting of a postmarking stamp with intent, as specified in the first count of the indictment,116 to make it appear that the stamp was genuine.117 Conviction under the third clause, on the other hand, required proof that appellant possessed the forged or counterfeited postmarking stamp with intent to use it deceptively.118 Each offense had its own elements, and the two offenses had few in common; the acts physical and mental, comprising them were incongruent. The first-clause offense of forging or counterfeiting a postmarking stamp did not necessitate subsequent possession of the stamp or of an intent to use it, as distinguished from an intent during the fabrication process to falsify it. The third-clause offense of possession a forged or counterfeited postmarking stamp did not necessitate possession by the party who forged or counterfeited it, or possession with an intent other than to put the forged or counterfeited article to some devious use. The indictment charged the two offenses as separate enterprises comprising separate historical events, and the evidence demonstrated that indeed they were.119 Nothing in the text or the legislative history of Section 503 suggests a congressional purpose to treat them as a single crime.120

One other matter deserves comment, and that is the general sentence-of imprisonment for a maximum five-year period-which the trial judge imposed on the two counts following appellant's conviction. Sentencing in the case at bar occurred some months prior to our decision in United States v. Straite,121 wherein we condemned general sentences on two broad grounds.122 We pointed out that "[w]hen an appellate court reverses less than all of a multi-count conviction, it usually must remand, either because the general sentence imposed is greater than the maximum permitted on the remaining counts, or because of the possibility that the sentencing judge was influenced by the multiplicity of offenses."123 We added that "the general sentence hampers the prison and correctional authorities in the accomplishment of their rehabilitative purposes, and confuses the defendant by disguising the essence of the court's decision on the individual offenses committed."124 Because a general maximum 15-year sentence had been imposed on Straite for two maximum 10-year and one maximum 15-year offenses, we vacated the sentences and remanded for resentencing.125

We maintain our complete accord with the holding in Straite and the wholesome policies underlying it.126 But the fact of the matter is that none of the difficulties identified in Straite is visited upon appellant here. Our disposition of this appeal augurs no reconstruction of appellant's sentence since we affirm his conviction on both counts.127 The exigencies of rehabilitation do not call for resentencing since during the pendency of the appeal appellant was placed on work release and then on parole, on which he presently remains. In these circumstances, we are unable to perceive any useful purpose which a remand for resentencing could achieve.128

For the foregoing reasons, the judgment of conviction appealed from has been affirmed.129