Kills Crow v. U.S., 76-1908

• Decision Date: 12 May 1977
• Docket Number: No. 76-1908,76-1908
• Citation: 555 F.2d 183
• Parties: Whitney Paul KILLS CROW, Appellee, v. UNITED STATES of America, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 183

555 F.2d 183

Whitney Paul KILLS CROW, Appellee, v. UNITED STATES of America, Appellant.

No. 76-1908.

United States Court of Appeals,

Eighth Circuit.

Submitted March 17, 1977.

Decided May 12, 1977.

Glenda Gordon, U.S. Dept. of Justice, Washington, D. C., for appellant; Richard L. Thornburgh, Asst. Atty. Gen., and George W. Calhoun, Atty., Dept. of Justice, Washington, D. C., on the brief.

John T. Hughes, Sturgis, S. D., on brief for appellee.

Before GIBSON, Chief Judge, and WEBSTER and HENLEY, Circuit Judges.

GIBSON, Chief Judge.

In Kortness v. United States, 514 F.2d 167 (8th Cir. 1975), we ruled that an inmate sentenced under 18 U.S.C. § 4208(a)(2) may be entitled to have his sentence modified under 28 U.S.C. § 2255 if the import of the sentence was changed by parole guidelines promulgated contemporaneous with the imposition of the sentence. Since Kortness, we have observed a proliferation of § 2255 petitions filed by resourceful prisoners who have felt aggrieved by adverse rulings of the Parole Board. To date, all efforts to convince this court to extend Kortness beyond its intended, and extremely limited, jurisdictional boundaries have proved futile. ¹ In the present case, we are urged to extend the Kortness rationale to cases where the Parole Board's guidelines were promulgated before the imposition of the § 4208(a)(2) sentence but the sentencing judge, who was aware of the guidelines, states that he misapprehended the actual effect of the guidelines at the time of sentencing. We hold that the District Court lacks § 2255 jurisdiction under these circumstances to modify the petitioner's sentence.

I.

In 1975, petitioner Whitney Paul Kills Crow was convicted in the United States District Court for the District of South Dakota of assault with a dangerous weapon and of using a firearm in the commission of a felony. 18 U.S.C. §§ 924(c)(1), 1153 (1970). Kills Crow was sentenced to two concurrent three-year terms under 18 U.S.C. § 4208(a)(2), which allows for parole at any time in the discretion of the Parole Board. The convictions were affirmed on appeal. United States v. Kills Crow, 527 F.2d 158 (8th Cir. 1975). Kills Crow thereafter filed a timely motion for reduction of sentence under Fed.R.Cr.P. 35, but the sentencing judge denied the motion.

Kills Crow was committed to the Federal Correction Institution at Sandstone, Minnesota. On November 11, 1975, after serving nearly five months of his sentence, Kills Crow was afforded an in-person initial parole hearing where he was permitted to apprise the parole authorities of his participation in various vocational and educational programs at Sandstone. The Parole Board ruled that, by applying its parole guidelines, an inmate with offender and offense characteristics similar to Kills Crow's would not be eligible for parole until after 45 months of incarceration. Therefore, the Board denied parole and continued Kills Crow's case to the one-third point of his sentence, as specified by the parole guidelines.

After serving eleven months of his sentence, Kills Crow was granted another in-person parole hearing before the Parole Board. Kills Crow, who was represented at the hearing by a counselor from the Bureau of Indian Affairs, presented a favorable institutional progress report to the Board. However, the Board again denied parole, citing Kills Crow's offense and offender characteristics and stating again that an inmate with such characteristics would normally have to serve at least a 45 month sentence under the guidelines. The Board concluded that "(a)fter review of all relevant factors and information presented, a decision outside the guidelines at this consideration is not found warranted." This decision, in essence, required Kills Crow to remain incarcerated until his mandatory release date of October 3, 1977.

Rather than avail himself of the internal administrative appeals procedure, ² Kills Crow instituted the present § 2255 action in the District of South Dakota. Essentially, the petition alleged that the sentencing judge, by sentencing Kills Crow to three years under § 4208(a)(2), expected the Board to grant Kills Crow meaningful parole consideration on or before the one-third point of the sentence. It was argued that, even though the parole guidelines were promulgated nearly two years prior to the imposition of Kills Crow's sentence, ³ the sentencing judge was unaware that the guidelines would operate to require Kills Crow to serve his entire sentence. Therefore, the sentencing judge made a "critical error" in the sentencing process and § 2255 relief is available to Kills Crow under Kortness v. United States, supra.

Kills Crow's action was heard by the judge who had initially sentenced him and the judge, after a hearing, granted § 2255 relief to Kills Crow. In its order, the District Court stated that it had sentenced Kills Crow under § 4208(a)(2) "with the understanding and expectation that this provision would permit great flexibility and with good adjustment permit early release." The court stated that it was not fully cognizant of the degree to which the parole guidelines would influence parole decisions. As a result of these guidelines, the court concluded, Kills Crow would be required to serve his entire three-year sentence, a result not contemplated by the court at the time of sentencing. Therefore, Kills Crow's sentence was reduced to time served and he was released from custody.

II.

At the time of Kills Crow's sentencing, the trial judge was confronted with three sentencing options. ⁴ He could have imposed a "straight" sentence under 18 U.S.C. § 4202, which would have rendered Kills Crow eligible for parole after serving one-third of the sentence. Alternatively, under 18 U.S.C. § 4208(a)(1), the judge could have imposed a maximum term of years and then designated a minimum term, not extending beyond the one-third point of the sentence, at which time Kills Crow would have been eligible for parole. Rejecting the straight sentence under § 4202 and the indeterminate sentence under § 4208(a)(1), the District Court opted to sentence Kills Crow under 18 U.S.C. § 4208(a)(2), which allows the Parole Board to determine when the defendant should be paroled. Under § 4208(a)(2), the Parole Board is empowered to exercise its administrative discretion and grant or deny parole at any point in the sentence, giving due consideration to the inmate's institutional progress, his rehabilitative record, the severity of his offense and his ability to reintegrate into society.

In determining eligibility for parole in cases prior to November, 1973, the Parole Board generally based its parole decision on the inmate's institutional conduct, the probability of recidivism and the interests of society. 28 C.F.R. § 2.2 (1973). These standards allowed for discretionary application to particular cases and a more individualized treatment of parole applicants. In November, 1973, the Parole Board fashioned a new set of paroling policy guidelines for the purpose of "establish(ing) a national paroling policy, promot(ing) a more consistent exercise of discretion and enabl(ing) fairer and more equitable decision-making without removing individual case consideration." 28 C.F.R. § 2.20 (1976).

The operative provisions of the new guidelines, which have been amended only slightly since 1973, are structured in tabular form. In applying the guidelines, parole authorities determine the inmate's parole prognosis (or salient factor score) by classifying the inmate into one of four "offender characteristics" categories, ranging from poor to very good. The Parole Board then classifies the inmate's offense into one of six "offense characteristics" categories, ranging from lowest severity to greatest severity. The inmate's salient factor score and severity rating intersect on a chart to show a predicted period of time that the inmate should serve before being paroled. The predicted period of incarceration suggested by this mathematical computation is not binding on the Parole Board, 28 C.F.R. § 2.20(c), (d), (e) (1976), but merely serves as a guideline. Thus, "(w)here the circumstances warrant, decisions outside of the guidelines * * * may be rendered." 28 C.F.R. § 2.20(c). However, statistics reflect that the Parole Board adheres to the guidelines in 88.4 percent to 94 percent of the cases. Kortness v. United States, supra at 169. ⁵

The promulgation of these new guidelines injected more consistency and predictability, but somewhat less flexibility, into the parole process. However, as exemplified by Kortness v. United States, supra, changing the criteria for parole eligibility can have the effect of interfering with the sentencing intentions of a judge who imposed a § 4208(a)(2) sentence contemporaneous with the adoption of the new guidelines. In Kortness, the defendant was sentenced to three years under § 4208(a)(2) on the same day the new parole guidelines were published in the Federal Register. Upon parole consideration, application of the new guidelines to the defendant resulted in a determination that he would have to serve from 26 to 32 months before becoming eligible for parole. We observed that the sentencing judge, who was unaware of the new guidelines, might not have anticipated that the defendant would be required to remain incarcerated for nearly the entire term. By sentencing under § 4208(a)(2), the trial judge was entitled to believe that the defendant would receive meaningful parole consideration at or before the one-third point of his sentence. The change in the guidelines, with their unanticipated effect on the length of the defendant's incarceration, may have caused the sentencing judge to misapprehend the defendant's probable parole date. This misapprehension, while not casting the sentence into an illegal mold, may have resulted in a "critical error" in the sentencing process that could be redressed by the sentencing judge under 28 U.S.C. § 2255. ⁶

In a...