opinion: UNITED STATES of America, Appellee, v. Alan Louis SIDELLA, Appellant.
  No. 72-1636.
  United States Court of Appeals, Fourth Circuit.
  Nov. 27, 1972.
  Paul Crider, Jr., Hampton, Va., on brief for appellant.
  Brian P. Gettings, U. S. Atty., and Roger T. Williams, Asst. U. S. Atty., on brief for appellee.
  Before HAYNSWORTH, Chief Judge, and SOBELOFF and BOREMAN, Senior Circuit Judges.
  PER CURIAM:
  On April 21, 1972, the appellant, Alan Louis Sidella, was convicted of unlawful possession of a controlled substance in violation of 21 U.S.C. § 844. He was sentenced to one year imprisonment. A co-defendant, David Balanda, was tried and found guilty of a similar charge, but was not imprisoned. Instead, he was placed on probation for one year as permitted by 21 U.S.C. § 844(b). Sidella now contends that the one year sentence imposed on him was excessive in view of the fact that his co-defendant received a lesser penalty.
  It was brought out during the sentencing proceedings that Sidella had been convicted in New Jersey of violating that state’s marijuana possession laws. The effects of this conviction on Sidella’s sentence were discussed by the Court and counsel, but no definitive conclusion was reached. The trial judge stated: “[W]hether they mean [prior convictions in] the state court or federal courts, I don’t know.” (Tr-96).
  The trial judge was certainly aware, however of the sentencing alternatives of 21 U.S.C. § 844(b). In sentencing co-defendant, Balanda, the Court stated: “You have no prior record in dealing with or possessing any such product as this. The Court has the power under the law not to find a judgment against you, but to release you on probation for a period of a year.” (Tr-106). When similar treatment was requested for Sidella, however, the Court again expressed concern over his prior conviction and denied probation.
  Since the one year sentence imposed on Sidella was within the statutory maximum for a first offender, the trial court did not openly exceed its discretion. Nor does § 844(b) mandate probation for first offenders. It merely places such disposition in the discretion of the trial judge.
  The fact that Sidella’s co-defendant, Balanda, was placed on probation, thus receiving more lenient treatment than Sidella, is not a clear abuse of discretion requiring the intervention of this Court. United States v. King, 420 F.2d 946 (4th Cir. 1970); United States v. Melendez, 355 F.2d 914 (7th Cir. 1966). Differences in backgrounds and records well may warrant that kind of disparity.
  However, if the trial judge concluded that Sidella’s prior conviction pre-eluded probation under § 844(b), he misread the statute. We read the statute to preclude probation only if there has been a prior federal conviction under that and related sections.
  Since it is unclear from the record whether the trial judge imposed an active sentence on Sidella in a proper exercise of his discretion or because he thought the statute, because of the state court conviction, deprived him of a discretionary power to put him on probation, the sentence is vacated and this action remanded for clarification and re-sentencing.
  Vacated and Remanded.
  . § 844. Penalty for simple possession; conditional discharge and expunging of records for the first offense.
  (a) It shall be unlawful for any person knowingly or intentionally to possess a controlled substance unless such substance was obtained directly, or pursuant to a valid prescription or order, from a practitioner, while acting in the course of his professional practice, or except as otherwise authorized by this subchapter or subchapter II of this chapter. Any person who violates this subsection shall be sentenced to a term of imprisonment of not more than one year, a fine of not more than $5,000, or both, except that if he commits such offense after a prior conviction or convictions under this subsection have become final, he shall be sentenced to a term of imprisonment of not more than 2 years, a fine of not more than $10,-000, or both.
  (b) (1) If any person who has not previously been convicted of violating subsection (a) of this section, any other provision of this subchapter or sub-chapter II of this chapter, or any other law of the United States relating to narcotic drugs, marihuana, or depressant or stimulant substances, is found guilty of a violation of subsection (a) of this section after trial or upon a plea of guilty, the court may, without entering a judgment of guilty and with the consent of such person, defer further proceedings and place him on probation upon such reasonable conditions as it may require and for such period, not to exceed one year, as the court may prescribe.
instruction: What follows is an opinion from a United States Court of Appeals.
  Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
  In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
  To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
  United States of America,
  Plaintiff, Appellant
  v
  International Brotherhood of Widget Workers,AFL-CIO
  Defendant, Appellee.
  International Brotherhood of Widget Workers,AFL-CIO
  Defendants, Cross-appellants
  v
  United States of America.
  Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
  of the Board
  Plaintiff, Appellants,
  v
  United States of America,
  Defendant, Appellee.
  This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
  Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
  If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
  Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.