Jones v. United States

• Decision Date: 31 December 1969
• Docket Number: No. 19745.,19745.
• Parties: William Herbert JONES, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

419 F.2d 593 (1969)

William Herbert JONES, Appellant, v. UNITED STATES of America, Appellee.

No. 19745.

United States Court of Appeals Eighth Circuit.

December 31, 1969.

William Herbert Jones, pro se.

Robert E. Johnson, U. S. Atty., and James A. Gutensohn, Fort Smith, Ark., for appellee.

Before BLACKMUN, MEHAFFY and LAY, Circuit Judges.

BLACKMUN, Circuit Judge.

We are concerned here with the meaning of the words "mandatory penalty" as employed in a federal criminal statute. Do these words relate to a prison term of fixed or minimum length, as contrasted with the common "not more than * * * years", or, on the other hand, do they relate to a prison term which must be served and as to which postconviction benefits of suspension of sentence, probation, and parole are specifically denied?

William Herbert Jones appeals pro se and in forma pauperis from the denial of his motion, allegedly based on 28 U.S. C. § 2255 and Rule 35, Fed.R.Crim.P., to vacate and set aside his sentence and for resentencing.

In August 1965 an indictment was returned in the Western District of Arkansas charging Jones with a violation of 18 U.S.C. § 2114¹ in that on May 25, 1965, while effecting a robbery of the United States Post Office at Bonnerdale, Arkansas, of cash and blank money orders, he, by the use of a pistol, assaulted, wounded, and placed in jeopardy the life of the acting postmaster. After a plea of not guilty Jones was tried to a jury and was convicted. The 25-year sentence specified by the last part of § 2114 was imposed on October 19. The judgment, however, contained the following additional provision:

"It is further adjudged that pursuant to the provisions of Section 4208 (a), Title 18, United States Code, five years is hereby fixed as the time after which the defendant shall be eligible for parole."

The reference to § 4208(a)² is obviously directed to § 4208(a) (1) and not to § 4208(a) (2). The reference in § 4208(a) (1) to one-third of the maximum sentence is geared to the general parole eligibility provisions of 18 U.S.C. § 4202.³

Jones was assigned to Leavenworth. He alleges that on reaching the penitentiary he was informed that the parole provision did not apply to one who had received the 25-year sentence provided by § 2114.

In his petition, filed April 18, 1969, to the district court Jones asserted that § 2114 "carries a mandatory penalty"; that a provision for parole "is inapplicable"; that his sentence is illegal and should be vacated; that he should be returned for resentencing; and that the new sentence "should not be inconsistent with the original intent of this most honorable Court." Presumably, Jones would imply, by all this, that a 5-year sentence was the proper one.

The district court denied Jones' motion without a formal hearing but ordered the modification of the judgment of conviction "by striking therefrom all reference to the provision of 18 U.S.C. 4208(a)." In its memorandum-order the court said:

"The sentence of twenty-five years is mandatory by the terms of the statute he was charged with violating, and since the length of the sentence is mandatorily fixed by the statute, the court was in error in providing in the judgment of conviction that, under the provision of 18 U.S.C. 4208(a), the defendant would be eligible for parole after service of five years of the sentence.

"The court is of the opinion that the sentence as pronounced was and is valid, and that the mere insertion in the sentence of the provision in an attempt to make applicable 18 U.S.C. 4208(a) was and is ineffective and void. * * *

* * * * * *

"Only questions of law are raised by the motions of the petitioner, and all facts necessary to the determination of the questions are reflected by the record. * * * If the motion of petitioner were granted and the entire sentence set aside, it would necessarily follow that he would be given another 25 year sentence since the court is convinced that it would not be justified in placing him on probation at this time, but this should not be construed as any indication that the petitioner would not be entitled to parole if he conforms to all rules and regulations after he had served one-third of the sentence of twenty-five years."

In his appellate briefs Jones states that he accepted his sentence in good faith and waived his rights for appeal and Supreme Court review; that had he not been given the parole date he would have appealed; that the district court intended that he be eligible for parole in 5 years; and that he has already served 4 years "striving at all times to meet the requirements of parole." Jones thus finds himself in a position where, having asked in his way for relief, he ends up with something seemingly more unassailable than before.

Section 4208(a) (1), quoted in footnote 2 above, authorizes the sentencing court to set an earlier time for parole eligibility than would otherwise be the case under the one-third-of-the-term measure established by § 4202. The difference for Jones would be that between 5 years and 8 1/3 years and, because he now has served more than 4 years, the difference appears to him to be critically important.

The difficulty, however, arises from the fact that § 4208 (along with § 4209, relating to young adult offenders, and 28 U.S.C. § 334, relating to institutes and joint councils on sentencing) had its birth with the Act of August 25, 1958. Pub. L. No. 85-752, 72 Stat. 845. Section 7 of that Act states, "This Act does not apply to any offense for which there is provided a mandatory penalty."⁴ 72 Stat. 847. Is, therefore, the fixed 25-year sentence prescribed by the last part of § 2114 a "mandatory penalty" which makes unavailable the discretionary parole eligibility provisions of § 4208(a)?

We start with two factors of some significance. The first is an observation in S.Rep. No. 2013 (1958) accompanying H.J.Res. 424 (which became Pub.L. No. 85-752), 2 U.S. Code Cong. & Ad. News, 85th Cong., 2d Sess. 3891-3892 (1958):

"PURPOSE

"The purpose of the proposed legislation, as amended, is to improve the administration of justice by authorizing the Judicial Conference of the United States to establish institutes and joint councils on sentencing and to provide additional methods of sentencing. The legislation does not apply to any offense for which there is provided a mandatory penalty.

* * * * * *

"As set forth under `Purpose\' above, the proposed legislation provides that it shall not apply to any offense for which there is provided a mandatory penalty. This is to assure that the mandatory penalties provided by statute for special categories of crime, such as armed robbery of a post office and violations of the Narcotic Control Act of 1926, as amended by the Narcotics Control Act of 1956, shall not be affected in any way by the provisions of the bill" (emphasis added).

The second, supplied by Jones, is a statement in a communication dated June 6, 1969, from Eugene N. Barkin, Legal Counsel for the Bureau of Prisons, to the warden at Leavenworth:

"It has always been the position of this office, as explained in our earlier memorandum, that parole eligibility under Section 4208(a) could be used on Armed Postal Robbery cases. There is some indication in the legislative history to the contrary however."

With these somewhat opposing observations we turn to the cases.

The narcotic cases. Section 7237(d) of 26 U.S.C. is set forth in the margin.⁵ The denial of general parole eligibility (by the reference to § 4202) to these violators came with the amendment of § 7237(d) by the Narcotic Control Act of 1956, being the Act of July 18, 1956, ch. 629, Title I, § 103, 70 Stat. 568. Ten years later the Narcotic Addict Rehabilitation Act of 1966, being the Act of November 8, 1966, Pub.L. 89-793, Title V, § 501, 80 Stat. 1449, inserted the words, "and in the case of a violation of a law relating to narcotic drugs", and thus, though backhandedly, opened the way for marijuana offenders to be eligible for parole under § 4202. See H. Rep. No. 1486 and Conf.Rep. No. 2316 (1966), 3 U.S.Code Cong. & Ad.News, 89th Cong., 2d Sess., 4245 at p. 4262 and 4263 at 4269 (1966).

These positive statutory provisions seem clear enough and, indeed, the courts have held, apparently consistently, that the penalties imposed by the designated narcotic statutes are "mandatory" within the meaning of § 7 of the 1958 Act. O'Neal v. United States, 332 F.2d 152 (9 Cir. 1964); Vaughn v. United States, 359 F.2d 809, 810 (7 Cir. 1966); Rivera v. United States, 318 F.2d 606, 609-610 (9 Cir. 1963) (concededly a marijuana situation but one prior to the 1966 amendment, noted above, which made the parole provisions of § 4202 available to a marijuana offender); Trujillo v. United States, 377 F.2d 266 (5 Cir. 1967), cert. denied, 389 U.S. 899, 88 S.Ct. 224, 19 L. Ed.2d 221 (same). See Munich v. United States, 337 F.2d 356, 361 (9 Cir. 1964); Smith v. United States, 116 U.S.App.D.C. 404, 324 F.2d 436, 439 n.6 (1963), cert. denied, 376 U.S. 957, 84 S.Ct. 978, 11 L. Ed.2d 975; Robinson v. United States, 313 F.2d 817, 820 (7 Cir. 1963); Berry v. United States, 412 F.2d 189 (3 Cir. 1969).

It is to be noted, however, that, in these situations, the door is closed to all relief for the offender by way of suspension of sentence, probation, and parole. His sentence must be served. It is "mandatory" in the true sense of the word.

The armed postal robbery cases under the last part of § 2114. With precedent so firmly established in the narcotic area, it is perhaps not too surprising that there are decisions in the books that a postal offense violative of the last portion of § 2114 (a statute, incidentally, which has roots back to 1799) also occasions a mandatory penalty to which the benefits of § 4208(a) are unavailable. Rulings to this effect were made by the Seventh and Sixth Circuits on the very same day in 1965. In United States v. Cameron, 351 F.2d 448 (7 Cir. 1965), the court rested its decision simply on §...