U.S. v. Snow, 84-6267

• Decision Date: 29 November 1984
• Docket Number: No. 84-6267,84-6267
• Citation: 748 F.2d 928
• Parties: UNITED STATES of America, Appellee, v. George SNOW, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 928

748 F.2d 928

UNITED STATES of America, Appellee, v. George SNOW, Appellant.

No. 84-6267.

United States Court of Appeals Fourth Circuit.

Argued Oct. 4, 1984.

Decided Nov. 29, 1984.

Sandra J. Hyldburg, Asheville, N.C. (Hyldburg, Grimes & Teich, Asheville, N.C., on brief), for appellant.

Samuel T. Currin, U.S. Atty., J. Douglas McCullough, Asst. U.S. Atty., Raleigh, N.C., Patty Merkamp Stemler, Dept. of Justice, Washington, D.C., on brief, for appellee.

Before MURNAGHAN and CHAPMAN, Circuit Judges, and HAYNSWORTH, Senior Circuit Judge.

MURNAGHAN, Circuit Judge:

I

George Snow ("Appellant") appeals from Judge Dupree's order of the United States District Court for the Eastern District of North Carolina denying appellant's motion pursuant to 28 U.S.C. Sec. 2255, to vacate his sentence.

Following a jury trial on June 23, 1980, Snow was convicted of stealing a motorcycle from Fort Bragg Military Reservation in violation of 18 U.S.C. Sec. 661 (a felony). Snow was 22 years old on the date of his conviction. Judge Dupree, in accordance with the Federal Youth Corrections Act ("FYCA"), 18 U.S.C. Sec. 5005-5026, sentenced the appellant to the custody of the Attorney General for an indeterminate sentence outlined in 18 U.S.C. Secs. 5010(b) and 5017(c). ¹ Snow was assigned to the Federal Corrections Institute at Englewood, Colorado.

After the appellant spent approximately 3 1/2 years at the Englewood facility, he filed a pro se motion with the district court seeking to vacate, set aside or correct his sentence. In his petition Snow alleged, inter alia, that his incarceration under the FYCA was illegal since his "indeterminate sentence" could result in a six year term whereas the maximum term he could receive as an adult offender, under 18 U.S.C. Sec. 661, would be only five years; Snow relied upon the Federal Magistrate Act of 1979, 18 U.S.C. Sec. 3401(g) to demonstrate the illegality of his FYCA sentence. Snow also alleged that his imprisonment at the Englewood Facility violated the FYCA in that he was not receiving his prescribed counseling sessions. Judge Dupree found Snow's contentions completely devoid of merit and accordingly denied his motion on February 15, 1984. Snow filed a motion on April 16, 1984 seeking an extension of time within which to notice his appeal. The motion was granted. Appellant filed a timely notice of appeal on May 11, 1984.

II

On April 22, 1984 Snow was transferred from the corrections center in Englewood, Colorado to a halfway house in Raleigh, North Carolina. Sometime in May he was transferred again to a Community Treatment Center in Raleigh. On May 24, while his appeal was pending, Snow escaped from the treatment center.

On August 31, 1984, the United States ("Appellee") moved to dismiss Snow's appeal. At that time the government was under the impression that Snow was still a fugitive; thus the basis of the government's motion was that a fugitive cannot "call upon the resources of this court for determination of his claims." However the government (as well as the Court) has since learned that the appellant had, in fact, already been recaptured and returned to custody on June 12, 1984.

In spite of the fact that Snow is no longer a fugitive, and was not one at the time the motion to dismiss the appeal was filed, the Government continues to pursue its motion to dismiss. In essence, appellee argues that since the appellant escaped, while his appeal was pending, he abnegated all claim to justice, forfeiting any right to judicial redress for his claims. The contention is advanced that any subsequent recapture has had no bearing on Snow's initial and intentional errant behavior.

The Supreme Court has held that a court in its discretion need not adjudicate the merits of a criminal defendant's appeal if he has purposefully escaped from lawful custody. Molinaro v. New Jersey, 396 U.S. 365, 90 S.Ct. 498, 24 L.Ed.2d 586 (1970). "While such an escape does not strip the case of its character as an adjudicable case or controversy" the Court noted that it "disentitles the defendant to call upon the resources of the Court for determination of his claims." Id. at 366, 90 S.Ct. at 498. Subsequent to Molinaro courts have exercised their discretion and have dismissed fugitives' appeals; however, the facts in the instant case do not fit neatly into any one of those decided cases. Dismissals have occurred when the fugitive has failed to return to custody within thirty days of a court order, United States v. Sperling, 506 F.2d 1323, 1345 n. 33 (2d Cir.1974), cert. denied, 420 U.S. 962, 95 S.Ct. 1351, 43 L.Ed.2d 439 (1975), or within the time prescribed in a court order conditionally dismissing the prisoner's appeal, United States v. Shelton, 508 F.2d 797 (5th Cir.1975), cert. denied, 423 U.S. 828, 96 S.Ct. 45, 46 L.Ed.2d 44 (1975), or within two years of an escape, United States v. Holmes, 680 F.2d 1372 (11th Cir.1982), cert. denied, 460 U.S. 1015, 103 S.Ct. 1259, 75 L.Ed.2d 486 (1983).

In the instant case Snow did not voluntarily surrender. He was recaptured against his will. Alone, that fact militates against granting Snow a judicial forum where he can contest the terms and conditions of his sentence. However, since Snow was back in custody within less than thirty days from his escape, and before his appeal was to be heard, he never had an opportunity to comply with a court order requiring Snow to surrender and reinstate his claim. He never had an appeal pending which was conditioned on obedience to an order requiring Snow to return within thirty days or else suffer a dismissal, as did other defendants in sister cases who were still in escapee status when their cases were scheduled for argument. See, e.g., Van Blaricom v. Forscht, 490 F.2d 461 (5th Cir.1974), cert. denied, 423 U.S. 915, 96 S.Ct. 222, 46 L.Ed.2d 144 (1975) (prisoner's appeal will be reinstated if he returns to custody within thirty days of the issuance of the court order); United States v. Eberhardt, 467 F.2d 578 (5th Cir.1972) (prisoner's appeal removed from docket subject to reinstatement if he subjects himself to court's jurisdiction within thirty days).

Once an escapee flagrantly refuses to obey a court order to return to custody, knowing quite well his recalcitrance will cost him an appeal, it seems thoroughly reasonable to close the courthouse doors to his claim. But in the instant case, where the court had no need to flex its muscles and set up a time limit for Snow's surrender, inasmuch as Snow was already back in custody, it seems somewhat inequitable to dismiss his claim and in effect penalize Snow simply because the authorities found him so soon. ² Furthermore, Snow's escape and subsequent recapture did not inconvenience the court's schedule. Oral argument was able to proceed as planned.

Given that Snow was back in custody within thirty days of his escape, the court has decided to exercise its discretion in favor of permitting the appeal to proceed. The government's motion to dismiss is denied. ³

III

In 1979, Congress amended the Federal Magistrates Act, 18 U.S.C. Sec. 3401 in order to expand the jurisdiction of magistrates. The amendments authorized magistrates to dispose of cases involving petty offenses and misdemeanors committed by both youth offenders and adults. However the authority given to magistrates to sentence youth offenders under the FYCA was not coextensive with the sentencing authority of district judges. Unlike district judges, who could on occasion sentence a youthful misdemeanant to an indeterminate sentence of up to six years, ⁴ magistrates were subjected to the following guidelines:

(g) The magistrate may, in a case involving a youth offender in which consent to trial before a magistrate has been filed under subsection (b) of this section, impose sentence and exercise the other powers granted to the district court under chapter 402 and section 4216 of this title, except that --

(1) the magistrate may not sentence the youth offender to the custody of the Attorney General pursuant to such chapter for a period in excess of 1 year for conviction of a misdemeanor or 6 months for conviction of a petty offense;

(2) such youth offender shall be released conditionally under supervision no later than 3 months before the expiration of the term imposed by the magistrate, and shall be discharged unconditionally on or before the expiration of the maximum sentence imposed; and

(3) the magistrate may not suspend the imposition of sentence and place the youth offender on probation for a period in excess of 1 year for conviction of a misdemeanor or 6 months for conviction of a petty offense.

18 U.S.C. Sec. 3401(g) (emphasis added).

The appellant's argument progresses in two steps. First, appellant contends that the sentencing restrictions of 3401(g) with regard to misdemeanors and petty offenses are similarly applicable to district court judges. That is, both magistrates and district court judges should be disallowed from subjecting a youthful petty offender or misdemeanant to a longer sentence under the FYCA than he would otherwise receive as an adult. And second, Snow claims that the Federal Magistrates Act of 1979 should also be read as restricting district court judges from sentencing youthful felons to longer terms under the FYCA than they would otherwise receive as an adult offender. As an adult offender Snow would have been subjected to a possible maximum 5 year sentence. 18 U.S.C. Sec. 661. As a young adult offender sentenced under the FYCA, he was subject to an indeterminate sentence of up to six years. Thus, based on his proferred expansion of the Federal Magistrates Act, Snow has argued that his sentence was illegal.

Appellant's reading of 3401(g) defies accepted canons of statutory construction and case law that has squarely addressed the issue. The first stage of Snow's argument, i.e., that 3401(g) implicitly applies to district court judges as well as magistrates when sentencing...