Ruip v. U.S.

• Decision Date: 16 June 1977
• Docket Number: No. 76-1505,76-1505
• Citation: 555 F.2d 1331
• Parties: Richard Charles RUIP, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1331

555 F.2d 1331

Richard Charles RUIP, Appellant, v. UNITED STATES of America, Appellee.

No. 76-1505.

United States Court of Appeals, Sixth Circuit.

Argued Dec. 14, 1976.

Decided April 8, 1977.

As Amended on Denial of Rehearing June 16, 1977.

Richard C. Ruip, pro se, Richard A. Bernat, Cincinnati, Ohio (Court-appointed CJA), for appellant.

Frederick M. Coleman, U.S. Atty., John P. Berena, Cleveland, Ohio, Kevin Thornton, Euclid, Ohio, for appellee.

Before PHILLIPS, Chief Judge, and WEICK and LIVELY, Circuit Judges.

PHILLIPS, Chief Judge.

This appeal presents four issues:

1.) Whether the promulgation of parole guidelines by the United States Parole Commission violated the prohibition against ex post facto laws when applied retroactively;

2.) Whether the application of the parole guidelines to a prisoner sentenced before their issuance violated Rule 11 of the Federal Rules of Criminal Procedure;

3.) Whether due process of law required that a prisoner be allowed an opportunity to provide supplemental information to the Parole Commission regarding his "salient factor score"; and

4.) Whether a prisoner's sentence should have been vacated because the sentencing judge's expectations of parole eligibility were changed by the parole guidelines.

We conclude that the third issue is not properly before this Court. We answer the other three questions in the negative, and affirm the decision of district court.

I.

Appellant, Richard Charles Ruip, pled guilty to violation of 18 U.S.C. § 2113(a) and (d) for his participation in an armed bank robbery. On July 27, 1971, he was sentenced to eighteen years imprisonment pursuant to 18 U.S.C. § 4208(a)(2) and delivered to the custody of the Attorney General.

At the time appellant was sentenced all parole release decisions were made by members of the United States Board of Parole (Parole Commission), ¹ with decisions based not on formally articulated criteria or policies, but on the discretionary judgment of the members of the Parole Commission. The primary focus in decision making was directed toward intuitive perceptions of institutional behavior and the probability of recidivism. Project, Parole Release Decisionmaking and the Sentencing Process, 84 Yale L.J. 810, 820 (1975) (Hereinafter cited as Project).

In 1973 the Parole Commission established a national parole policy and adopted parole guidelines ² to promote what it felt was a more consistent and equitable exercise of its discretion. See 28 C.F.R. § 2.20 (1976). The guidelines indicate the customary range of time to be served before release for various combinations of offense severity and parole prognosis characteristics. Under the guidelines an inmate's record is examined to determine his "salient factor score." This figure was statistically designed to predict the potential risk of parole violation and consists of nine weighted personal characteristics such as prior convictions, employment history, etc. Project, supra at 824. Next, the inmates offensive behavior is classified on the "offense severity scale" in one of six categories from low to greatest. This rating reflects the Parole Commission's independent, subjective evaluation of the gravity of the inmate's criminal behavior. Project, supra at 823-24. Together, the salient factor score and the offense severity rating are used in conjunction with a table ³ to determine a suggested time range during which the inmate should remain incarcerated. ⁴

The suggested time range is merely a guideline. Where circumstances warrant, decisions either above or below the guidelines may be rendered. 28 C.F.R. § 2.20(c) (1976). Nevertheless, experience indicates that the overwhelming majority of parole decisions fall within the guidelines. United States v. Salerno, 538 F.2d 1005, 1007 (3rd Cir. 1976); Project, supra at 825 n. 75.

During his incarceration, appellant established a good institutional record. He earned a high school equivalency (G.E.D.) diploma, accrued a number of credits on the college level and completed vocational courses in welding. Weighing against appellant, however, was the fact that the crime to which he had pled guilty in the present case occurred while he was on parole, and less than one year after he had served nine and one-half years for his part in a previous armed robbery.

Appellant had a hearing before the parole hearing examiner panel on October 20, 1975. The panel recommended that he be released on parole on January 20, 1976. This decision by the local panel was referred to the National Directors for reconsideration of the panel's decision, and on November 20, 1975, appellant was informed that his parole had been denied by the National Appellate Board and his imprisonment would continue until March 1977, at which time he would receive another review. The National Appellate Board gave the following reasons for denying petitioner's parole:

Your offense behavior has been rated as greatest severity because shots were fired during commission of armed bank robbery. You have a salient factor score of 3. You have been in custody a total of 55 months. Guidelines established by the Board for adult cases which consider the above factors indicate a range of more than 65 months to be served before release for cases with good institutional program performance and adjustment. Board guidelines for greatest severity cases do not specify a maximum limit. Therefore, the decision in your case has been based in part upon a comparison of the relative severity of your offense behavior with offense behavior examples listed in the very high severity category.

Appellant challenged the denial of his parole in the district court by alternative motions for a writ of habeas corpus ⁵ or for vacation of sentence. ⁶ The motions were denied and appellant seeks relief in this court.

II.

The Constitution of the United States specifies that "No Bill of Attainder or ex post facto Law shall be passed." art. I, § 9, cl. 3. A law falls within the prohibition on ex post facto laws if, it, "makes an action done before the passing of the law, and which was innocent when done, criminal; (or) . . . changes the punishment, and inflicts a greater punishment, than the law annexed to the crime when committed." Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L.Ed. 648 (1798).

Appellant contends that the Parole Commission guidelines operated as an ex post facto law in delaying his release on parole. In the absence of these guidelines, appellant asserts, he would have been released on parole on January 20, 1976, due to his superior institutional adjustment. The effect of these administrative guidelines, he insists, was to change the rules and lengthen his incarceration, thereby imposing a greater punishment for his crime. This administrative action, appellant asserts, was invalid as an ex post facto law.

Appellant's contention raises two questions: 1) whether the eligibility of convicted persons for parole is a part of "the law annexed to the crime when committed" under Calder v. Bull, supra, 3 U.S. (3 Dall.) at 390; and 2) whether administrative guidelines on parole come within the prohibition on ex post facto laws.

In determining whether parole eligibility is a part of the law annexed to the crime, when committed, we first look to the statute prescribing the offense to which appellant pled guilty:

§ 2113. Bank robbery and incidental crimes

(a) Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, credit union, or any savings and loan association;

Shall be fined not more than $5,000 or imprisoned not more than twenty years, or both.

(d) Whoever, in committing, or in attempting to commit, any offense defined in subsections (a) and (b) of this section, assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device, shall be fined not more than $10,000 or imprisoned not more than twenty-five years, or both. 18 U.S.C.A. § 2113 (1970 & Supp.1976)

Entirely different statutes apply in determining parole eligibility. District Judge Thomas D. Lambros noted in his opinion in this case:

At the time of sentencing, a district judge has three sentencing alternatives in terms of parole release. Under 18 U.S.C. § 4202, the judge may require a defendant to serve one-third of the sentence imposed before becoming eligible for parole release. Under 18 U.S.C. § 4208(a)(1), the judge may set a minimum period of incarceration to be served before the defendant is eligible for parole, not to exceed one-third of the sentence imposed. Last, under 18 U.S.C. § 4208(a)(2), a sentencing judge may leave the matter of parole solely up to the board of parole, with no minimum time required. ⁷

Although the parole provisions are set forth in a statute separate and apart from the bank robbery statutes, the courts have come to regard parole eligibility as an integral part of a sentence. Additionally, "only an unusual prisoner could be expected to think he was not suffering a penalty when he was denied eligibility for parole." Warden v. Marrero, 417 U.S. 653, 662, 94 S.Ct. 2532, 2538, 41 L.Ed.2d 383 (1974). In any practical analysis, parole consideration is a part of the law annexed to the crime. The Ninth Circuit decision in Love v. Fitzharris, 460 F.2d 382, 384 (9th Cir. 1972), vacated as moot, 409 U.S. 1100, 93 S.Ct. 896, 34 L.Ed.2d 682 (1973), holding that under California law parole eligibility is a part of the sentence and thus a part of the law annexed to the crime, is in accordance with this view.

The next question is whether, under the circumstances of this case, administrative guidelines on parole come within the prohibition against ex post facto laws. The Parole Commission and its predecessor, the Board of Parole, are independent bodies established by Cong...