Kramer v. Jenkins, 86-1849

• Decision Date: 15 October 1986
• Docket Number: No. 86-1849,86-1849
• Citation: 803 F.2d 896
• Parties: Arnold I. KRAMER, Petitioner-Appellant, v. O.C. JENKINS, Warden, and United States Parole Commission, Respondents- Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 896

803 F.2d 896

Arnold I. KRAMER, Petitioner-Appellant, v. O.C. JENKINS, Warden, and United States Parole Commission,

Respondents- Appellees.

No. 86-1849.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 16, 1986.

Decided Oct. 15, 1986.

Julius Lucius Echeles, Sharon C. Kramer, Chicago, Ill., for petitioner-appellant.

William F. Murphy, Asst. U.S. Atty., Anton R. Valukas, U.S.A. Atty., Chicago, Ill., for respondents-appellees.

Before BAUER, Chief Judge, and FLAUM and EASTERBROOK, Circuit Judges.

EASTERBROOK, Circuit Judge.

This case is fated to be known as Kramer V, and V is probably not the highest Roman numeral we shall have to append to Kramer's name. Kramer I was an unpublished order affirming Arnold Kramer's convictions on four counts of wilfully failing to file income tax returns and one count of filing a false tax document. The district court imposed consecutive one-year terms on the misdemeanor failure-to-file counts and five years' probation on the felony false-filing count. The total was four years in prison.

Kramer II was a collateral attack on Kramer I. Kramer maintained that the district court had not complied with Fed.R.Crim.P. 32(c)(3)(D), which requires the court to resolve disputes about statements in the presentence report or to state in writing that he does not rely on the challenged statements. Kramer v. United States, 788 F.2d 1229 (7th Cir.1986). We concluded that the district court had not complied with Rule 32 concerning the statement in the presentence report that the IRS believed that Kramer evaded payment of some $329,000 in taxes. On remand the district court determined both that the statement was accurate--because the IRS indeed believed that Kramer owed the money, whether or not Kramer owed anything--and stated that he had not relied on the assertion. A motion to compel the district court to comply with our mandate led to the conclusion in Kramer III that Rule 32 is not satisfied by a finding that the government subjectively believes the assertions in the presentence report. Kramer v. United States, 798 F.2d 192 (7th Cir.1986). The district court's alternative finding was sufficient compliance with the mandate, however, so we affirmed the district court's action.

While all of this was going on, Kramer had a parole hearing. The Commission used the estimate of tax liability in the presentence report to conclude that Kramer's offense should be classified in "Category 5" under the Parole Commission's guidelines. The Commission looks to the prisoner's actual offenses, not solely to those of which he was convicted. 28 C.F.R. Sec. 2.19(c). Category 5 includes tax offenses in which "the amount of the tax evaded or evasion attempted is more than $100,000 but not more than $500,000". 28 C.F.R. Sec. 2.20-501(b). Under the Commission's guidelines a person with Kramer's "salient factor score" (a compendium of personal characteristics) who commits a Category 5 offense ordinarily will be held for 24 to 36 months before parole. The Commission decided that Kramer should be treated as the guidelines recommend and kept for the full 36 months. The practical effect of this is a denial of parole, because if Kramer behaves in prison his good time credits (at the rate of seven days per month, 18 U.S.C. Sec. 4161), will require his release soon after the 36-month mark no matter what.

On receiving the decision, Kramer filed an appeal to the National Appeals Board, which is the appellate arm of the Commission, see 18 U.S.C. Sec. 4203(c)(4) and 28 C.F.R. Sec. 2.26(a), and a petition for a writ of habeas corpus under 28 U.S.C. Sec. 2241. Kramer II had not yet been decided, and Kramer asserted that the Commission's use of the presentence report violated the due process clause of the fifth amendment. He also asserted that he had not been given an adequate opportunity to respond to the information in the hearing examiners' possession and that the evidence was insufficient to support the determination that he had evaded $100,000 or more in taxes. The case was assigned to a district judge other than the one responsible for Kramer's sentence, so there were then three pending actions: before the National Appeals Board, before the habeas corpus judge, and before this court on appeal from the sentencing judge's decision.

The National Appeals Board acted first. It affirmed the regional commissioner's decision on February 6, 1986, without reference to the presentence report. The National Board's full opinion says:

Commission has received an IRS Deficiency Notice confirming that your tax liability for the years 1976-1979 exceeded $300,000. This notice is treated by the Commission as a conclusive determination of your liability by the agency charged with such responsibility by law. The Commission declines to entertain further argument on the issue thus conclusively settled, and therefore has decided not to order a rehearing in your case. The Commission will not second-guess formal determinations of questions of fact by another agency which has expertise in a matter not possessed by this agency. Your remedy lies in the U.S. Tax Court, which can best decide the issue and best determine whether an expedited decision is warranted under the circumstances.

On May 6, 1986--after Kramer II but before Kramer III--the district court denied Kramer's petition for a writ of habeas corpus. The court concluded that Kramer II had not "found the presentence investigation report invalid", so that the Commission was entitled to rely on it. More, because the National Appeals Board had relied on the deficiency notice rather than the presentence report, the district judge concluded that Rule 32 was not important. The court rejected all of Kramer's other arguments.

The appeal from this decision quickly produced Kramer IV, holding that Kramer was not entitled to release pending a disposition on the merits. Kramer v. Jenkins, 800 F.2d 708 (7th Cir.1986). It has also produced a lively motions practice, growing out of the following observations at the end of Kramer III:

We also defer to the district court's factual finding that "the [Parole] Board apparently treated [Kramer] as if he were tried and convicted of income tax evasion, when in fact he was charged only with failure to file tax returns and with filing a false document with the IRS." In order to correct this error, the Parole Board should only consider that portion of the presentence report which does not contain the amount Kramer allegedly owes. As the district court suggested, the "estimate" should be deleted and the Parole Board should take whatever steps are necessary to redetermine [Kramer's] parole eligibility.

798 F.2d at 195, footnote omitted, first brackets in original. Kramer demanded that the Commission immediately redetermine his eligibility without regard to tax evasion. The Commission declined. The sentencing judge sent the Commission a letter emphasizing that the convictions were unrelated to tax evasion and that he had not relied on the presentence report; the Commission has not yet responded to this letter. And Kramer has filed with us a flurry of documents demanding immediate release--at a minimum an order that the Commission immediately recompute his eligibility--to which the Commission has replied that it was not a party to Kramer III and is not bound by our observations. All of the pending motions have been consolidated with the appeal in the habeas case for what has become Kramer V.

We agree with the Commission that Kramer III does not require a new parole decision. The only question before the court was whether the district judge had complied with the mandate in Kramer II. The effect of a violation of Rule 32 on the Commission's processes was not briefed in Kramer III; the panel, acting on Kramer's motion without waiting for the government's response, did not discuss any of the statutes governing the Commission's conduct; the Commission was not a party. The issues in this appeal are open to fresh consideration.

Kramer II and III hold that the sentencing judge violated Rule 32(c) but cured the violation by disclaiming reliance on the presentence report's estimate of tax liability and conveying that disclaimer to the Parole Commission. Kramer wants us to hold that the Commission itself may not consider the disclaimed information. We have some doubt whether an argument of this sort may be raised on collateral attack, given the holdings of United States v. Addonizio, 442 U.S. 178, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979), and United States v. Timmreck, 441 U.S. 780, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979). To obtain a writ of habeas corpus the petitioner must show that his "custody" is in violation of the Constitution or laws of the United States. Timmreck holds that a violation of the Rules of Criminal Procedure is not often (if ever) the same as illegal or unconstitutional custody; Addonizio holds that judges may not use collateral review to vindicate their "sentencing expectations" when the Commission denies parole to a person the judge believes should be released. We bypass this difficulty, however, because Kramer has not established that Rule 32 applies to the Commission.

The Rules of Criminal Procedure govern the proceedings in "courts", see Fed.R.Crim.P. 1. The Advisory Committee's notes to the 1983 amendments to Rule 32, which for the first time required judges to make factual findings or disclaim reliance, show that the committee was concerned about the use the Commission makes of presentence reports. The notes and the text of the Rule also show, however, that the device selected to deal with potential reliance on questionable statements was clarification or disclaimer in the district court, not an embargo on the transmission of presentence reports to the Commission. The Rule requires the district court to find the facts or let the Commission know that it found the report either too unreliable to be relied on or beside the...