U.S. v. DeMier

• Decision Date: 10 March 1982
• Docket Number: 81-2271,Nos. 81-2053,s. 81-2053
• Citation: 671 F.2d 1200
• Parties: UNITED STATES of America, Appellant, v. Robert L. DeMIER, Barbara DeMier, Appellees. In re UNITED STATES of America, Petitioner.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1200

671 F.2d 1200

UNITED STATES of America, Appellant, v. Robert L. DeMIER, Barbara DeMier, Appellees In re UNITED STATES of America, Petitioner.

Nos. 81-2053, 81-2271.

United States Court of Appeals Eighth Circuit.

Submitted Jan. 13, 1982.

Decided March 10, 1982.

Robert G. Ulrich, U. S. Atty., Kansas City, Mo., Robert J. Erickson, Atty., U. S. Dept. of Justice, Washington, D. C., for appellant.

Willard B. Bunch, John Edward Cash, Kansas City, Mo., for appellees.

Before HEANEY, BRIGHT and STEPHENSON, Circuit Judges.

BRIGHT, Circuit Judge.

The Government, by appeal (No. 81-2053) and petition for writ of mandamus (No. 81-2271), challenges the power of the district court to issue an order reducing the sentences of Robert L. DeMier and his wife, Barbara, from three-years' imprisonment to twenty months. The DeMiers had filed a timely motion for reduction of sentence, which the court granted approximately ten months later, outside the 120-day time period prescribed by Rule 35 of the Federal Rules of Criminal Procedure. ¹

The Government asserts that the district court lacked jurisdiction to act more than 120 days after the imposition of sentence, notwithstanding defendants' timely motion. Alternatively, the Government argues that the district court's power to rule on the motion for reduction of sentence expired when the court failed to act with reasonable dispatch or for a legitimate purpose. We reject the Government's contentions and affirm the ruling of the district judge. ²

I. Background.

Robert and Barbara DeMier, husband and wife, each stands convicted of eight counts of mail fraud after collecting the proceeds of a fire insurance policy on business premises which they arranged to have burned. Robert DeMier was also convicted on one count charging him with a firearms violation. Before imposing sentence, the district court directed the probation officer to prepare presentence reports on the DeMiers.

Crucial to an understanding of the present controversy are the presentence reports the court's probation officer prepared on the DeMiers before imposition of their sentences. The presentence reports both contained the following paragraph:

According to adult guidelines of the United States Parole Commission, (defendant's) estimated salient factor score of 11 indicates a "very good" parole prognosis. This prognosis, coupled with the "high" severity rating of the offense behavior, indicates she (he) could be expected to serve 16 to 20 months in custody before release to supervision. ³ (United States v. DeMier, 520 F.Supp. 1160, 1162 (W.D.Mo.1981).)

Relying on this information, the district court, on August 10, 1979, sentenced both defendants to three-years' imprisonment on each count to run concurrently, plus a $3,000 fine. The record indicates that the court imposed these sentences with the understanding that the DeMiers would serve sixteen to twenty months in prison. ⁴

In imposing sentence under 18 U.S.C. § 4205(b)(2), the judge commented:

The Court also wants the judgment and commitment to show that sentence is imposed pursuant to Section 4205(b)(2) which vests discretion in the Parole Commission to declare the defendant eligible for release on parole at any time that the Parole Commission may determine rather than after service of a third of the sentence. (United States v. DeMier, supra, 520 F.Supp. at 1162-63.)

The DeMiers appealed their convictions and we affirmed. DeMier v. United States, 616 F.2d 366 (8th Cir. 1980).

On March 20, 1980, after this court filed its opinion affirming the DeMiers' convictions, but before issuance of our mandate, the defendants applied for a stay of execution of their sentences. The district court responded by imposing study sentences (maximum sentences of imprisonment prescribed by law) on both defendants, pursuant to 18 U.S.C. § 4205(c). ⁵ As one of its referral questions, the district court inquired whether a three-year prison sentence is consistent with similar mail fraud convictions involving approximately $86,000.

The regional director of the Federal Correctional Institution at Forth Worth, Texas, conducted the studies and suggested in his report to the district court that a three-year prison sentence would be appropriate for each of the defendants.

On July 3, 1980, after reviewing the studies, the district court reinstated the original sentences by again imposing a three-year sentence and $3,000 fine on each defendant. ⁶ The record indicates that in reimposing the three-year sentences the district judge continued to operate on the assumption, based on the presentence reports, that the DeMiers would qualify for parole and release after sixteen- to twenty-months' imprisonment. ⁷ The defendants began serving their sentences at the Federal Correctional Institution at Fort Worth, Texas, on July 21, 1980.

On October 29, 1980, the DeMiers filed a timely Rule 35 motion for reduction of sentence. ⁸ In their motion, the DeMiers alleged that the Parole Commission's preliminary assessment based on its guidelines called for incarceration from forty to fifty-two months. The district court learned for the first time that the probation officer had made a mistake in advising the sentencing judge that applicable guidelines called for a period of sixteen- to twenty-months' imprisonment, as previously indicated by the presentence reports. This assessment effectively eliminated the DeMiers from likely consideration for parole before completion of their respective three-year sentences.

In response to the Rule 35 motion, the Government asserted that no ground for relief existed because the guideline assessment did not preclude the Parole Commission from exercising its discretion to provide an earlier release date. ⁹

On November 6, 1980, the district court in an interim order stated that a ruling on the DeMiers' Rule 35 motion would be premature, because the defendants' motion and the Government's response did not reflect "what action the Parole Commission actually took." The court, nevertheless, retained jurisdiction of the motion and directed the parties to advise it of "final action" by the Parole Commission.

The Government did not object to this interim ruling and the matter remained pending until May 5, 1981, when counsel for the DeMiers advised the court that the Parole Commission had determined that the DeMiers should serve the full three-year sentence in conformity with an offense rating of "Greatest I" severity under Parole Commission guidelines. See 28 C.F.R. § 2.20 (1979).

The 1979 Parole Commission guidelines included for the first time the offense "arson" in the Greatest I severity category. The Parole Commission characterized the DeMiers' crime as arson placing this offense under the "Greatest I" severity category, rather than the "high" category under which the presentence reports had previously listed their fraud offense.

The Parole Commission's characterization of the DeMiers' offense as arson required a determination that the offense involved potential risk of injury to persons. See 28 C.F.R. § 2.20 (1979) (e.g., premises occupied or likely to be occupied). The likelihood of occupancy or nonoccupancy of the business premises, however, was an issue not litigated against the DeMiers in their trial. See DeMier v. United States, 616 F.2d 366 (8th Cir. 1980).

Moreover, in imposing the initial sentence the district court noted:

This is not an arson case. It is a fraud case. It cannot be overlooked, however, that the fraud involved is fraud to induce the payment of insurance claims for which the defendants were compensated for the full coverage of the policy and it really can't be overlooked that the claim involved was a claim on a fire policy. So that, while this case can't be sentenced as an arson case, it simply cannot be overlooked that arson was involved, as one of the factual circumstances supporting the fraudulent claim to obtain $86,000. (United States v. DeMier, supra, 520 F.Supp. at 1162.)

Thus, the "sentence" imposed by the Parole Commission guidelines in terms of time to be served (for arson) was considerably greater than the penalty assessed by the district court for the crimes (fraud) charged against the DeMiers.

The Parole Commission's report, however, indicated that because of the three-year sentence release would likely occur after twenty-seven months, based on good time credits the DeMiers had earned. The DeMiers, through counsel, requested a hearing on the Rule 35 motion.

On May 27, 1981, the Government responded to the request for hearing by asserting that the defendants had failed to show good cause for relief under Rule 35. The Government, however, raised no objection to the court's jurisdiction to rule on the DeMiers' motion for reduction of sentence.

The court granted the DeMiers' motion, noting that in imposing sentence it had relied on 1978 Parole Commission guidelines which prescribed sixteen- to twenty-months' incarceration for the DeMiers' offense. Judge Oliver noted that, for understandable reasons, he had received inaccurate information at the initial sentencing, because at that time judges and probation officers had not yet received the 1979 guidelines. His records disclosed that he had not received the revised guidelines until after September 7, 1979, approximately one month following imposition of the initial sentence upon the DeMiers. Moreover, Judge Oliver assumed that the guidelines, which formed the basis for the presentence reports, remained in effect when he reimposed the three-year sentence on July 3, 1980, as he had not been specifically advised of the application of the revised guidelines to the criminal acts committed by the DeMiers.

II. Appellate Jurisdiction.

The Government asserts that this court has jurisdiction to review the action of the district court by a writ of mandamus under 28 U.S.C. § 1651 (the All Writs Act), or by appeal either under 28 U.S.C. § 1291, ¹⁰ or 18 U.S.C. § 3731. ¹¹ This...