Kindred v. Spears, 89-1355

• Citation: 894 F.2d 1477
• Decision Date: 28 February 1990
• Docket Number: No. 89-1355,89-1355
• Parties: Gayle DuWayne KINDRED, Petitioner-Appellee, v. Phillip SPEARS, Warden and United States Parole Commission, Respondents-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 1477

894 F.2d 1477

Gayle DuWayne KINDRED, Petitioner-Appellee, v. Phillip SPEARS, Warden and United States Parole Commission Respondents-Appellants.

No. 89-1355.

United States Court of Appeals, Fifth Circuit.

Feb. 28, 1990.

Sharon Gervason, U.S. Parole Com'n, Chevy Chase, Md., Marvin Collins, U.S. Atty., Wayne Hughes, Asst. U.S. Atty., Fort Worth, Tex., for respondents-appellants.

Melvin J. Klein, Melvin J. Klein & Assoc., Dallas, Tex., for petitioner-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before GEE, JONES, and SMITH, Circuit Judges:

GEE, Circuit Judge:

This appeal concerns the contours of due process protection afforded a prisoner in his dealings with the Parole Commission. Succinctly, the question before us today is whether or not the Parole Commission is bound to provide contemporaneous reasons for its decisions. We hold that the Federal Parole Statute mandates such a contemporaneous reasoning requirement and that, therefore, the decision of the district court must be affirmed.

Facts and Disposition Below

In 1984, Kindred was convicted of conspiracy to transport currency, transportation of stolen currency ($700,000 (Canadian)) and failure to declare $5,000. Kindred had acted as a remote lookout for his cohorts as they robbed two couriers, took them to a rural area, bound them with chains and taped their eyes and mouths. For his part in the crime, Kindred received a sentence of 30 years. At his initial parole hearing in 1985 a panel of examiners rated the severity of his offense as category six and assigned him the maximum "salient factor" score of 10 (affording him a very good parole prognosis). See 28 C.F.R. section 2.20; 18 U.S.C. section 4205(b)(2). The parole examiners' calculations afforded Kindred a 40-52 month window for initial release. The panel recommended that Kindred be required to serve the 52 month maximum.

Upon administrative review, the Regional Parole Commissioner recommended that Kindred's offense severity level be upgraded to category seven, in view of his treatment of his victims (binding and gagging). Pursuant to the Commission's regulations, the case went before the National Commissioners. The Regional Commissioner pressed for an upgrade on three grounds; (i) the use of chains in detaining the victims; (ii) the fact that Kindred had once been a law enforcement officer and (iii) Kindred's admission to a prior unprosecuted offense. ¹

The National Commissioners agreed to the upgrade, thereby extending Kindred's parole window to the 52-80 month range. The Commissioners ordered Kindred to serve the maximum 80 month period. In its decision to upgrade, the National Commissioners relied only on the use of chains and expressly concluded that "a decision outside the guidelines ... is not found warranted." The National Commissioners, therefore, did not expressly rely on the prior unprosecuted offense in reaching their decision. Kindred unsuccessfully appealed the Commission's decision to the National Appellate Board.

In 1987, Kindred obtained his statutorily mandated interim parole review. A panel, persuaded that Kindred had intended only to slow his victims' escape and not to permanently bind them, determined that his offense was mischaracterized and should be downgraded to category six (40-52 months). The panel, however, opted to "go outside" the category six guidelines and recommended the same 80 month time frame for parole as Kindred had earned under the more onerous category seven threshold. This 80 months was to be mitigated somewhat by a 7 month deduction for superior program achievement. The panel stated no reason for exceeding the category six guidelines. The Regional Commissioner adopted the panel's determination.

Kindred appealed once again to the National Appeals Board. The Board affirmed the decision but for the first time expressly cited the unprosecuted offense as the reason for exceeding category six.

Kindred applied for a writ of habeas corpus, complaining that the Commission's decision to exceed the published guidelines violated due process. A magistrate recommended that the writ be granted because, in recommending the self-same 80 month period of incarceration, (although 28 months above the category six limit) the Commission had penalized Kindred for his successful attack on the severity categorization. The magistrate found the Commission's decision to be violative of the due process clause of the Fifth Amendment. The district court adopted the magistrate's recommendation and ordered that the Commission reevaluate Kindred's parole possibilities with the injunction that, should it exceed category six, it could do so only on the basis of some new event or conduct occurring after the original parole determination of 1985. The Government now appeals to us, asserting error in the court's order disallowing an upgrade absent reliance on post-1985 events.

Discussion

The Parole Commission enjoys absolute suzerainty over matters of parole. See 18 U.S.C. section 4203 (conferring power on Commission to establish guidelines to aid in the exercise of its powers); Maddox v. United States Parole Comm'n, 821 F.2d 997, 999 (5th Cir.1987). In its calculations on parole questions, the Commission may consider any information not constitutionally barred. This broad decisional power encompasses authority to consider unprosecuted criminal activity. Maddox, 821 F.2d at 999. Moreover, and exceptionally, the Commission may for "good cause" go outside its own guidelines provided that "the prisoner is furnished written notice stating with particularity the reasons for its determination, including a summary of the information relied upon." 18 U.S.C. section 4206(c). The question before us today is whether the Commission's tardy justification for the upgrade violates the standard set forth in section 4206(c) or the due process guarantee of the Fifth Amendment.

In attempting to resolve this question, the legal issues reduce to:

I. The proper application of the presumption of vindictiveness enunciated in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969).

II. Whether or not the district court made a finding of vindictiveness on the part of the Parole Commission.

III. The due process implications of the Parole Commission's failure to follow its own internal procedures.

I. Pearce and the Presumption of Vindictiveness.

The basic theorem of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) holds that, where a defendant has successfully challenged his conviction and is resentenced after a retrial, a sentencing judge may not impose a harsher sentence than was first imposed unless the new sentence is based on events subsequent to the first trial. Imposition of a harsher sentence by the original judge triggers a presumption of vindictiveness that acts as an aid to defendants who would otherwise have to shoulder a heavy burden of proof. Marshall v. Lansing, 839 F.2d 933 (3d Cir.1988) would extend the notion of institutional vindictiveness into the area of parole decisions.

The gist of the government's argument to us is that the district court applied the Pearce presumption to the instant case and that it erred by doing so. Section II of our opinion deals with whether or not the district court did apply Pearce. For the moment, however, we shall assume arguendo that it did so and move directly to the question of whether Pearce governs this case.

The government contends that a defendant must demonstrate the existence of two factual predicates to earn the Pearce presumption; (i) reversal by a higher tribunal and (ii) imposition of a harsher sentence below. Essentially, the government argues that Pearce is a brightline test designed to assuage a chilling effect on appeals or collateral attacks on sentences by defendants. To this end, the government puts forward the notion that Kindred fails the second prong of the Pearce test because his sentence on second reconsideration was more lenient. Kindred makes no response to this argument. We find the government's position here unpersuasive. The contention conceals an intellectual sleight of hand. Although, de jure, Kindred's sentence looks less harsh, (recategorization down and 7 month award) de facto, Kindred is being made to serve the category seven maximum for an offense that merits only category six severity.

The government is on surer ground in its claim that Kindred fails the first prong of the Pearce test because it was the Commission itself and not any other, higher, tribunal that changed Kindred's sentence. Thus, according to the government, the crucial event from which vindicativeness could be imputed was lacking. The gravamen of Kindred's opposing claim for Pearce is that, rather than a reversal by a higher tribunal being the trigger event to impute vindictiveness, presence of a motive for self-vindication in the original sentencing authority can fire vindictiveness.

The case law does not lend support to Kindred's argument. Prudentially, the Supreme Court's purpose in fashioning the presumption in Pearce was to protect a defendant's right to appeal his conviction against the chill of a vindictive tribunal. 395 U.S. at 724-25, 89 S.Ct. at 2080. The Court captured the notion of vindictiveness in the discrete occurrence of a reversal on appeal prompting the lower court to punish the defendant. Vindictiveness does not exist in a vacuum. As a matter of logic, vindictiveness becomes a danger only where an event prods the sentencing court into a posture of self-vindication. Absent a triggering event, the court will not presume vindictiveness. See Texas v. McCullough, 475 U.S. 134, 139, 106 S.Ct. 976, 978-79, 89 L.Ed.2d 104 (1986). Reversal on appeal or an order to the lower tribunal to grant a new hearing (Marshall ) constitutes a salient triggering event. In the instant case nothing occurred to trigger the presumption of...