Iacaboni v. U.S.

Citation251 F.Supp.2d 1015
Decision Date20 March 2003
Docket NumberNo. C.A. 03-30012-MAP.,No. C.A. 03-30005-MAP.,No. C.A. 03-30013-MAP.,C.A. 03-30005-MAP.,C.A. 03-30013-MAP.,C.A. 03-30012-MAP.
PartiesFrank IACABONI, Petitioner v. UNITED STATES of America, Respondent Donovan McKenzie, Petitioner v. United States of America, Respondent Mark Pandolfi, Petitioner v. United States of America, Respondent
CourtU.S. District Court — District of Massachusetts

Thomas J. Butters, Butters, Brazilian & Small, L.L.P., Boston, MA, for Frank Iacaboni, Petitioner.

Andrew Levchuk, United States Attorney's Office, Springfield, MA, for United States of America, Respondent.

Miriam Conmrad, Federal Defender's Office, Boston, MA, for Office of the Federal Defender.

Charles W. Rankin, Boston, MA, for National Ass'n of Criminal Defense Lawyers, Criminal Justice Act Bd.


PONSOR, District Judge.


The three petitioners in these cases were all sentenced to short terms of imprisonment, with recommendations that their sentences be served in a community confinement setting. Based on the Congressional mandate that authorizes it to designate a prisoner to "any available penal or correctional facility that meets minimal standards of health and habitability," 18 U.S.C. § 3621(b), the Bureau of Prisons ("BOP") adopted the court's recommendations regarding two of the three offenders and confined them in halfway houses, where they are now serving their sentences as model prisoners. No facility has as yet been designated as the place of imprisonment for the third petitioner, who was sentenced more recently.

In making the recommendations for community confinement, the court relied upon the definition of the BOP's scope of discretion as set forth in § 3621(b). It also relied upon explicit instructions, regularly provided to judges in various formats, to the effect that community confinement is a proper sentencing option for offenders serving relatively modest terms of imprisonment. Finally, the court had in mind the fact that recommendations to community confinement have been made in thousands of cases by hundreds of judges continuously since at least 1965, and in nearly all instances accepted by the BOP. In advising the defendants, counsel presumably also relied on the statute, the widely circulated information and the well established practice.

On December 13, 2002, weeks or months after the three sentencings, a lawyer within the Department of Justice carrying the title of "Principal Deputy Assistant Attorney General" composed an eight-page memorandum in which he characterized as "unlawful," under any circumstances, the long-established BOP practice of placing inmates in community corrections facilities to serve short terms of imprisonment. See Exhibit A, attached. Compelled by this memorandum, the BOP has now taken the position that designations of offenders to community confinement to serve sentences of imprisonment are forbidden as a matter of law and therefore beyond its discretion. As a result, the BOP has informed all federal judges that it will no longer— ever—consider a judge's recommendation that an offender serve a term of imprisonment in community confinement, under any circumstances. See Exhibits B and E, attached. Moreover, the BOP has announced, this new sentencing regime will be retroactively applied. Individuals currently at halfway houses with more than 150 days remaining in their sentences, including two of the three petitioners now before the court, are to be transferred within thirty days to more conventional "prison institutions." See Exhibits C and D, attached.

In their petitions pursuant to 18 U.S.C. § 2255, the three petitioners contend that, given this radically altered sentencing landscape, they are entitled either to an order maintaining their placements in community corrections facilities, or to re-sentencing.1 The court will allow the petitions for the following reasons, stated now in summary and set forth in greater detail below.

First, the well-established practice of the BOP—repeatedly and explicitly conveyed to the judiciary—of carefully considering and, where appropriate, adopting judicial recommendations to place offenders in community confinement to serve their terms of imprisonment was not, and is not, even remotely "unlawful." The amputation of the BOP's discretion attempted by the DOJ's December 13 memorandum disregards the controlling statute, which clearly expresses Congressional intent in this area. Moreover, the BOP's pre-December 2002 understanding of its discretion was recognized implicitly by the Supreme Court and well known to the Sentencing Commission. The suggestion that the old approach was "unlawful" is simply false. Since the BOP's recent forced renunciation of its own lawful discretion flies in the face of the controlling statute, it is invalid.

Second, the BOP's manner of adopting this fundamental change, even assuming it had substantive merit, was improper. As will be seen, the BOP's abrupt action, without prior notice or opportunity for comment, violated the Administrative Procedure Act. As such, the announced change in the BOP's approach to community confinement is without effect.

Third, the retroactive application of this policy to offenders already sentenced, and in two cases already serving their sentences, violates constitutional due process protections afforded persons standing before the court to be sentenced. The Government may not repeatedly and emphatically instruct judges, defendants and counsel that short terms of imprisonment may, in proper circumstances, be served in community confinement, and then, after sentencing, change the basic rules.

For these reasons, the court will grant the petitions. In the cases of Iacaboni and McKenzie, the BOP will be enjoined from transferring them from their current community confinement facilities. In the case of Pandolfi, the BOP will be ordered to designate a place of imprisonment by applying pre-December 2002 criteria without consideration of its new and invalid interpretation of its discretion.

A final point must be added. It is no exaggeration to say that the December communications reflected a disregard for—indeed, almost an insult to—the courts. The affront was particularly grave to judges who had imposed sentences in reliance on the then-prevailing sentencing regime. A sentencing option of longstanding acceptance, clearly supported by statute and repeatedly reflected in the practice of hundreds of judges, was abruptly snatched away without opportunity for comment by judges or the Sentencing Commission, and without even prior notice—based upon the transparently specious rationale that the old policy was "unlawful." The lack of respect for the proper role of the judiciary, the plain discourtesy in the brusque manner of notification, and particularly the subversion of the sentencing process by the insistence on a retroactive application of the new sentencing rules, all were highly offensive and gratuitous. Even if the BOP's about-face on community corrections could somehow be justified—and it cannot—it should never have been carried out in the cavalier manner it was.


As noted above, this memorandum addresses the claims of three petitioners. Their cases are summarized below.

A. Frank Iacaboni.

Frank Iacaboni was a bookmaker in Springfield, Massachusetts between 1995 and 1998. He pled guilty on March 26, 2002 to three counts of conspiracy, as well as substantive counts of conducting an illegal gambling business and money laundering. At sentencing on June 19, 2002 there was no dispute regarding the calculation of the Sentencing Guidelines. Iacaboni was in a Criminal History Category I, evidencing his minimal prior criminal record, and an Offense Level 12, producing a guideline range of 10-16 months. Before sentencing, defense counsel argued vigorously for a downward departure, pointing to Iacaboni's recent impressive work record and particularly his pallet-making business, which at that time employed several people. Despite these arguments, the court did not depart but imposed a sentence of ten months custody of the BOP, with the recommendation that the sentence be served in community confinement, followed by three years of supervised release. The court also imposed a fine of $30,000 and an assessment of $500. Significantly, in addition, the court ordered Iacaboni to forfeit some $384,245, on the ground that these monies constituted the fruit of his illegal conduct. Neither the defendant nor the Government appealed the confinement portion of the sentence.

I imposed this sentence in reliance on what I had been repeatedly informed and instructed regarding my sentencing options. This information told me that the BOP carefully considered judicial recommendations to community confinement and accepted them, if such a placement was proper. I of course knew, and fully accepted, the reality that my recommendation was not binding on the BOP and that the placement would not be made if Iacaboni was not appropriate for community corrections. I did not know, and was never informed, that my sentencing options would shortly decrease, and that judicial recommendations to community confinement were on the threshold of becoming meaningless, never to be followed. I certainly had no idea that Iacaboni might be properly placed in community confinement and, sometime later, might face automatic transfer to a distant, "prison institution."

With proper information—that is, without misinformation—my entire approach to the sentencing proceeding would have been different. Part of the reason I declined defense counsel's invitation to depart downward based on the need for the defendant to preserve his legitimate business, and the jobs of his employees, was my confidence that it was highly likely that the BOP would adopt my recommendation for community confinement, which would allow the...

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