Pearson v. U.S.

• Decision Date: 19 May 2003
• Docket Number: No. 03-C-253.,No. 02-CR-40.,03-C-253.,02-CR-40.
• Citation: 265 F.Supp.2d 973
• Parties: Patricia PEARSON, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — Eastern District of Wisconsin

265 F.Supp.2d 973

Patricia PEARSON, Petitioner, v. UNITED STATES of America, Respondent.

No. 03-C-253.

No. 02-CR-40.

United States District Court, E.D. Wisconsin.

May 19, 2003.

Brian P. Mullins, for Petitioner.

Gail Hoffman, for Respondent.

DECISION AND ORDER

ADELMAN, District Judge.

I. PROCEDURAL AND FACTUAL BACKGROUND

Patricia Pearson ("petitioner") brings this action under 28 U.S.C. § 2255 claiming that she was denied due process because she was sentenced based on false information. I previously stayed execution of the sentence pending resolution of her claim.

The relevant facts are as follows. Petitioner pled guilty to one count of bank larceny, and a pre-sentence report ("PSR") was prepared in anticipation of sentencing. The PSR stated that under the sentencing guidelines petitioner's offense level was 12 and her criminal history category was I, producing an imprisonment range of 10 to 16 months and placing petitioner in "Zone C" of the sentencing grid. For offenders in Zone C, the minimum term of imprisonment may be satisfied by (1) a sentence of imprisonment or (2) a sentence of imprisonment that includes a term of supervised release with a condition that substitutes community confinement or home detention for no more than one half of the minimum term. U.S.S.G. § 501.1(d).

Claiming that her ill and infirm parents relied on her for care, petitioner moved for a two-level downward departure pursuant to U.S.S.G. § 5H1.6. A two level departure would have put petitioner in Zone B, making her eligible for a sentence of probation with a condition of home confinement. See U.S.S.G. § 5Cl.lc.

Prior to sentencing, I sought to determine whether I could fashion a sentence that would permit petitioner to continue caring for her parents without departing from the guidelines. I knew that based on a judge's recommendation the Bureau of Prisons ("BOP") would permit a Zone C offender to serve the imprisonment portion of a sentence in a community correctional center ("CCC"), where the offender could be released for specified purposes, such as work and family care. However, to make certain that the BOP would designate petitioner to a CCC, I asked the probation officer to contact the BOP and determine whether it would honor a recommendation for CCC placement in this case. The probation officer called the BOP and was assured that if I recommended it petitioner would be placed in a CCC.

Based in part on this assurance, I denied petitioner's motion for a downward departure. I stated that the motion was a "close call" but that I was "not totally convinced that it's quite strong enough [of a] case to depart, and I think the same purpose can be accomplished in another way without requiring the departure ...." (10/4/02 Tr. at 4). I then imposed a split sentence: five months imprisonment, which I recommended be served at a local CCC known as Parson's House with work release and parent care privileges, followed by five months of home confinement as a condition of supervised release.

However, before petitioner commenced serving her sentence, the Office of Legal Counsel of the Department of Justice issued a memorandum (hereafter the "OLC memorandum") stating that the BOP lacked authority to designate Zone C and D offenders to a CCC. The BOP subsequently advised federal judges that such offenders would be sent to prisons regardless of whether the sentencing judge recommended CCC placement. The BOP then informed me that based on the OLC memorandum petitioner would not be placed at Parson's House but rather sent to a prison in Greenville, Illinois.

II. DISCUSSION

"Convicted defendants, including those who plead guilty, have a due process right to a fair sentencing procedure which includes the right to be sentenced on the basis of accurate information." United States v. Rone, 743 F.2d 1169, 1171 (7th Cir.1984) (citing United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972)). In order to establish a violation of this right, a defendant must show (1) that the information before the sentencing court was false and (2) that the court relied on the false information in passing sentence. Id. (citing United States v. Harris, 558 F.2d 366, 375 (7th Cir.1977)). I conclude that petitioner has established both factors.

First, the BOP provided false information to the court by representing that it would honor my recommendation that petitioner be placed in a CCC. I note that this representation was consistent with the BOP's longstanding practice of following judges recommendations for such placements. E.g., Iacaboni v. United States, 251 F.Supp.2d 1015, 1017-18 (D.Mass. 2003); Culter v. United States, 241 F.Supp.2d 19, 19-20 (D.D.C.2003). Indeed, the BOP's authority to place offenders in petitioner's situation in CCCs was memorialized in its written policies Howard v. Ashcroft, 248 F.Supp.2d 518, 530-31 (M.D.La.2003) (citing PS 7310.04, Community Corrections Center (CCC) Utilization and Transfer Procedure 115 (12/16/1998) ("[T]he Bureau is not restricted by § 3624(c) in designating a CCC or an inmate and may place an inmate in a CCC for more than the `last ten percentum of the term,' or more than six months, if appropriate."); U.S. Department of Justice, Federal Bureau of Prisons, Judicial Resource Guide to the Federal Bureau of Prisons 15-16 (2000) ("The Bureau may designate an offender directly to a community based facility to serve his or her sentence, but ordinarily this is done only with the concurrence of the sentencing court.")); see also Iacaboni, 251 F.Supp.2d 1015, 1026 (citing BOP Prog. Smt. 5100.07 ("Security Designation and Custody Classification Manual") ch. 4, at 2 (9/3/1999 with 1/31/02 changes) (stating "direct commitment to CCCs may be made on the court's recommendation")).¹ However, despite this longstanding practice, as a result of the OLC memorandum, the BOP's representation that petitioner would be placed at a CCC turned out to be false.

Second, I relied on the BOP's representation at sentencing. I denied petitioner's downward departure motion in part because, if she were placed in Parson's House, she could continue to care for her parents, making a departure unnecessary. Had I known that she would be sent to prison, I would have viewed the departure motion differently.

In Cutter v. United States, Judge Huvelle granted § 2255 relief on nearly identical facts. The defendant there was also in Zone C and also moved for a downward departure so that she would be eligible for home or community confinement under the guidelines. 241 F.Supp.2d at 20. Judge Huvelle denied the motion but crafted a sentence that would allow the defendant to remain in the community: she sentenced the defendant to twelve months confinement with the understanding that the defendant would serve the sentence at a local halfway house.² Id. at 21. The defendant began serving her sentence at the halfway house but was re-designated to a federal prison after the issuance of the OLC memorandum. Id. at 19-20.

Judge Huvelle found that the defendant's right to due process had been violated, pointing out that she had based the sentence not only on the longstanding BOP policy of following judicial recommendations for CCC placements but also on the BOP's specific representations with respect to Culter.

Prior to sentencing, the Court spoke to representatives from the Probation Office in an effort to determine whether BOP would honor the Court's recommendation. Based on the Probation Office's conversations with various BOP personnel, including a Community Corrections Manager ("CCM"), the Court was assured both that space was available in a local halfway house and that petitioner could and would be designated to serve her sentence at that location if the Court elected to so recommend. This is why, at the end of the sentencing hearing, the Court engaged in a colloquy with the probation officer, in which the officer again informed the Court that petitioner would be able to self-surrender to the halfway house in four to six weeks "since we do have bed space." (Tr. of Sent., 3/28/02, at 31.) Had the Court not received such assurances, it would have viewed its overall sentencing options in a far different light. In short, the Court's sentence was premised on an explicit understanding of where petitioner would serve her time that was the product not merely of unchallenged and longstanding government practices, but that was also firmly rooted in the BOP's representations that it both had the authority and the willingness to abide by the Court's recommendation in this case.

Id. at 22.

The government argued that in banning CCC placement the BOP was merely correcting a mistake in statutory interpretation; "the general rule in such circumstances is that mistakes on the part of the government, such as its misinterpretation of applicable law, do not prevent the government from correcting those mistakes when they are discovered." Id. at 25. However, Judge Huvelle noted that "in certain unique cases, courts have found that the belated correction of a sentencing mistake can be `so unfair that it must be deemed inconsistent with fundamental notions of fairness embodied in the Due Process Clause.'" Id. at 25 (quoting DeWitt v. Ventetoulo, 6 F.3d 32, 35 (1st Cir.1993)). This was such a case.

[I]n deciding what sentence to impose, the Court relied on years of consistent practice, as well as representations that BOP would honor the Court's placement recommendation. As such, the harm that petitioner faces if BOP's policy is retroactively applied to her is not merely ... that of having her artificially elevated hopes of doing her time in a CCC dashed. Instead, she is now facing a very real and very tangible prejudice: the subversion of her ability to have the Court impose sentence at a time when the government is accurately representing the authority of the BOP to effectuate the Court's sentence. Indeed, had the Court at the time of sentencing been advised...