Johnson v. Williford, 81-5764

• Citation: 682 F.2d 868
• Decision Date: 30 July 1982
• Docket Number: No. 81-5764,81-5764
• Parties: Charles A. JOHNSON, Petitioner-Appellee, v. J. WILLIFORD, Warden, Metropolitan Correctional Center; United States Parole Commission; and United States of America, Respondents-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 868

682 F.2d 868

Charles A. JOHNSON, Petitioner-Appellee, v. J. WILLIFORD, Warden, Metropolitan Correctional Center;

United States Parole Commission; and United States

of America, Respondents-Appellants.

No. 81-5764.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted May 3, 1982.

Decided July 30, 1982.

Kenneth Caruso, Dept. of Justice, Washington, D.C., for respondents-appellants.

Frank T. Vecchione, San Diego, Cal., for petitioner-appellee.

Appeal from the United States District Court for the Southern District of California.

Before FLETCHER, PREGERSON and REINHARDT, Circuit Judges.

FLETCHER, Circuit Judge:

The government appeals from the district court's order granting Johnson's writ of habeas corpus. Johnson was convicted and sentenced under a federal statute requiring a minimum term of ten years, without possibility of parole. Neither the sentencing order nor the initial sentence computation report noted Johnson's ineligibility for parole. After numerous reviews by the Parole Commission and various other federal officers, none of whom uncovered the error, Johnson was released on parole.

Some 15 months later when the error was discovered, he was arrested and his parole revoked. In response, Johnson petitioned for a writ of habeas corpus. The district court ordered his immediate release pending action on the petition. Upon hearing, the district court granted the writ. We note jurisdiction under 28 U.S.C. § 2253 and affirm.

FACTS

Johnson was convicted in the Northern District of Florida of conspiring to import marijuana, importing marijuana, and engaging in a continuing criminal enterprise in violation of 21 U.S.C. § 848 (1976). On May 25, 1977, he was sentenced to consecutive terms of five, five, and ten years, respectively, for these three convictions. He began serving his sentence on that day. On appeal, the conspiracy conviction was set aside because conspiracy is a lesser included offense of engaging in a continuing criminal enterprise. The aggregate sentence accordingly was reduced to 15 years.

From August 30, 1977 to September 18, 1978, Johnson was imprisoned at the Federal Correctional Institution (F.C.I.) at McNeil Island, Washington. While there, his sentence computation record was prepared, indicating parole eligibility on September 18, 1980. Johnson was moved to Lompoc F.C.I., and authorities there reviewed his sentence computation on October 11, 1978. On May 17, 1979, the sentence computation was reviewed by the administrative systems manager of the western regional office of the Bureau of Prisons. On July 23, 1979, Johnson's case manager recommended a presumptive parole date of September 18, 1980. This recommendation was reviewed by the unit manager at Terminal Island F.C.I. Copies of the recommendation were supplied to the United States Parole Offices in the Northern District of Florida and the Southern District of California. On September 14, 1979, after a Parole Commission hearing, Johnson's release was continued to the presumptive parole date of September 18, 1980. On February 25, 1980, a case manager at Terminal Island F.C.I. recommended a parole date of September 18, 1980, with prior release to a half-way house. Johnson was released to a half-way house-the Salvation Army-Beachaven Community Treatment Center, San Diego, California-on March 26, 1980. Apparently, no release audit was performed at that time. Johnson was released on parole on September 18, 1980, and remained on parole for fifteen months. At the time of his release, Johnson was 39 years old. Aside from the marijuana related offenses for which he was convicted, the record reveals only one prior incident of criminal conduct-a 10 year old drunk driving conviction. The district court found that he had made an "excellent" adjustment to parole, living with his wife and his two teenage children, operating an agricultural business, reporting regularly to his parole officer and keeping his court appearances. In the words of the district court, "(H)is reintegration into society has been good."

ANALYSIS

I. VIOLATION OF 21 U.S.C. § 848 IS A NON-PAROLABLE OFFENSE.

At the time of Johnson's conviction, 21 U.S.C. § 848(c) provided, in pertinent part, that:

In the case of any sentence imposed under this section, imposition or execution of such sentence shall not be suspended, probation shall not be granted, and section 4202 of Title 18 ... shall not apply.

Former 18 U.S.C. § 4202 had been the general federal parole eligibility statute. However, it was repealed effective May 14, 1976 by the Parole Commission and Reorganization Act, now codified at 18 U.S.C. § 4201 et seq. The new § 4202 merely creates the Parole Commission.

Johnson's argument is that § 848(c) does not, by its terms, prohibit the granting of parole. It does so only by its reference to former § 4202. Thus when Congress repealed that statute without making an appropriate amendment to § 848(c), violations of § 848(c) ceased being non-parolable. This argument is without merit. "Congress clearly intended to make parole unavailable to those who violated § 848. There is no indication that Congress intended to change this penalty when it reenacted the parole statutes." United States v. Valenzuela, 646 F.2d 352, 354 (9th Cir. 1980). See also 18 U.S.C. § 4205(g) (savings clause in Parole Commission and Reorganization Act); S.Rep.No. 94-369, 94th Cong., 2d Sess., p. 23 (1976), reprinted in (1976) U.S.Code Cong. & Ad.News 335, 344 (explaining savings clause). See generally Muniz v Hoffman, 422 U.S. 454, 470, 95 S.Ct. 2178, 2187, 45 L.Ed.2d 319 (1975) ("It will not be inferred that the legislature, in revising and consolidating the laws, intended to change their policy, unless such an intention be clearly expressed.").

II. THE GOVERNMENT IS ESTOPPED FROM ENFORCING THE NON-PAROLABILITY PROVISION OF § 848 IN THIS CASE.

A. The Government is not Immune from Estoppel in this Case.

In general, equitable estoppel is not available as a defense against the government, especially when the government is acting in its sovereign, as opposed to its proprietary, capacity. Federal Crop Insurance Corp. v. Merrill, 332 U.S. 380, 68 S.Ct. 1, 92 L.Ed. 10 (1947); Saulque v. United States, 663 F.2d 968, 976 (9th Cir. 1981) (dictum). See generally Schweiker v. Hansen, 450 U.S. 785, 788-89, 101 S.Ct. 1468, 1470-71, 67 L.Ed.2d 685 (1981) (summary disposition) (per curiam); United States v. Lazy FC Ranch, 481 F.2d 985, 988-89 (9th Cir. 1973). Nevertheless, this court has held that "where justice and fair play require it," estoppel will be applied against the government, even when the government acts in its sovereign capacity if the effects of estoppel do not unduly damage the public interest. Lazy FC Ranch, 481 F.2d at 988-89 (citing Moser v. United States, 341 U.S. 41, 71 S.Ct. 553, 95 L.Ed. 729 (1951); Brandt v. Hickel, 427 F.2d 53 (9th Cir. 1970); Schuster v. C.I.R., 312 F.2d 311 (9th Cir. 1962); Gestuvo v. INS, 337 F.Supp. 1093 (1971)). The Supreme Court has never explicitly endorsed this theory, see Schweiker v. Hansen, 450 U.S. at 788-89 & 788 n.4, 101 S.Ct. at 1470-71 & 1471 n.4 (1981), although "no fewer than eight circuits ... have stated that there are some circumstances in which the Government will be estopped," Hansen v. Harris, 619 F.2d 942, 959 (2d Cir. 1980) (Newman, J., concurring) (collecting cases), rev'd per curiam, 450 U.S. 785, 101 S.Ct. 1468, 67 L.Ed.2d 685 (1981), and Moser has been cited as a case wherein the Supreme Court by its holding, in fact, estopped the Government. Lazy FC Ranch, 481 F.2d at 989.

In a recent decision, Miranda v. INS, 673 F.2d 1105 (9th Cir. 1982), our court reaffirmed the application of equitable estoppel against the government acting in its sovereign capacity. ¹ The court, relying on an estoppel theory, had originally reversed a decision of the Board of Immigration Appeals. Miranda v. INS, 638 F.2d 83 (9th Cir. 1980). The Supreme Court vacated the panel's original decision and remanded for further consideration in light of Hansen. Miranda v. INS, --- U.S. ----, 102 S.Ct. 81, 70 L.Ed.2d 77 (1981). Upon reconsideration, the Miranda panel adhered to its original judgment. It described Hansen as a case in which application of estoppel would circumvent "the conditions defined by Congress for charging the public treasury," Miranda, 673 F.2d at 1105-06 (quoting Federal Crop Insurance Corp. v. Merrill, 332 U.S. 380, 385, 68 S.Ct. 1, 3, 92 L.Ed. 10 (1947)), while application of estoppel in Miranda would not create a drain on the public fisc, id. at 1106. In this respect, the instant case is indistinguishable from Miranda.

We turn now to an examination of whether the threshold requirements for estoppel against the government described in Lazy FC Ranch are present here. Under Lazy FC Ranch, the government's wrongful conduct must threaten "to work a serious injustice" and the public's interest must not "be unduly damaged by the imposition of estoppel." 481 F.2d at 989. The Parole Commission's deliberate decision to release Johnson on parole, and his subsequent successful reintegration into the community, suggest that his continuation on parole status does not seriously threaten the public interest. The injustice to Johnson if he is reincarcerated is apparent. The government says in its brief, "petitioner's case is in some respects a sympathetic one." We think this is an understatement. The record discloses at least eight separate administrative reviews of Johnson's projected parole date. Each review confirmed that Johnson could be paroled. His expectation of release on parole on September 18, 1980, was raised almost as soon as he began to serve his sentence, and was encouraged and heightened by the successive administrative reviews.

The government argues that Johnson has received a windfall, and that while a return to custody would disappoint his expectations, "those expectations were not justified in any event," in light of his...