U.S. v. Somers, 76-2009

• Decision Date: 25 February 1977
• Docket Number: No. 76-2009,76-2009
• Citation: 552 F.2d 108
• Parties: UNITED STATES of America, Appellant, v. William T. SOMERS et al.
• Court: U.S. Court of Appeals — Third Circuit

Page 108

552 F.2d 108

UNITED STATES of America, Appellant, v. William T. SOMERS et al.

No. 76-2009.

United States Court of Appeals Third Circuit.

Argued Dec. 2, 1976.

Decided Feb. 25, 1977.

Jonathan L. Goldstein, U. S. Atty., for appellant; Maryanne T. Desmond, Asst. U. S. Atty., Newark, N. J., on brief.

Ralph J. Kmiec, Cherry Hill, N. J., for Arthur W. Ponzio, appellee.

Before FORMAN, ROSENN and GARTH, Circuit Judges.

OPINION OF THE COURT

GARTH, Circuit Judge.

In this appeal we are called upon to review the question which we had previously and, as now appears, erroneously stated should need no review.

In United States v. Salerno, (Appeal of William Silverman ), (hereinafter "Silverman I "), 538 F.2d 1005 (3d Cir. 1976), Judge Rosenn, writing for this Court, held: (1) that 28 U.S.C. § 2255 provides jurisdiction to challenge a sentence imposed under 18 U.S.C. § 4208(a)(2) prior to the adoption of the 1973 Parole Guidelines, ¹ when the intent of the sentencing judge is frustrated by the application of those guidelines; and (2) that because the intent of Silverman's sentencing judge was thwarted by the implementation of the guidelines, Silverman's original sentence could be modified.

In Silverman's case the intent of the original sentencing judge (who was no longer a member of the district court when Silverman sought resentencing) could be ascertained only by interpreting and construing the sentencing colloquy appearing in the sentencing transcript. Forecasting that such a circumstance unavailability of the original sentencing judge would be a rare one, Judge Rosenn wrote:

We do not believe that our holding will seriously burden either the district court or this court. Where the motion to vacate sentence can be directed to the sentencing judge, the question whether his sentencing expectations have been frustrated is easily resolved and there should be no need for review of that decision in the Court of Appeals. In the rare case, as here, when the original sentencing judge is no longer on a district court bench, and the record convincingly shows by the statement of the trial judge at sentencing that he intended to have the defendant receive meaningful parole consideration, then we believe that resentencing should be required. (emphasis supplied.)

Silverman I, 538 F.2d at 1009.

We now face the very circumstance foreseen by Judge Rosenn where the district court judge who (1) sentenced the defendant Ponzio on May 21, 1973, (2) was informed of the "new" Parole Guidelines, (3) found his original intent to have been frustrated by those guidelines, and (4) vacated the sentence under authority of Silverman. Believing that the original sentencing judge is in the best position to know his own intent and that his determination of that intent is conclusive, we affirm the order of the district court reducing Ponzio's sentence. In so doing, however, we do not relax or depart from the narrow holding of Silverman I as interpreted by the same panel of this Court which denied rehearing in Silverman II. ²

I.

On March 8, 1973, appellee Ponzio was convicted with others of various counts of an indictment which, among other things, charged Ponzio with acts of extortion in violation of 18 U.S.C. § 1951 (The Hobbs Act) and § 1952 (The Travel Act).

On May 21, 1973, Ponzio was sentenced on Count I (conspiracy to violate The Hobbs Act) to prison for a term of six years

. . . (P)ursuant to the provisions of Title 18 U.S.C. § 4208(a)(2), defendant to be eligible for parole at such time as the Board of Parole shall determine.

Judgment of sentence, May 21, 1973.

His conviction on 15 other counts resulted in terms of five year imprisonment on each count, concurrent with each other count, and concurrent with the sentence imposed on Count I. In sum, therefore, although Ponzio faced a total term in prison of six years, the Parole Board had the discretion to release him on parole at any time.

Ponzio's conviction was affirmed by this Court on May 31, 1974, United States v. Somers, 496 F.2d 723 (3d Cir.), cert. denied, 419 U.S. 832, 95 S.Ct. 56, 42 L.Ed.2d 58 (1974). ³ As noted, the Supreme Court of the United States denied certiorari on October 15, 1974.

On November 19, 1974, Ponzio commenced serving his sentence and, thereafter, pursuant to a timely motion under Rule 35, F.R.Crim.P., made application for reduction of his sentence. On January 13, 1975, the judge who originally sentenced Ponzio reduced his sentence from six to five years imprisonment.

Thereafter, on July 26, 1976, Ponzio wrote a letter again seeking relief from his sentence. Treating that letter as a motion pursuant to 28 U.S.C. § 2255, on August 6, 1976, the original sentencing judge on authority of Silverman I ⁴ granted Ponzio's motion, vacated his sentence and resentenced him to time served. The government thereupon applied for a stay of the district court's order, and sought to return Ponzio to custody. Both of the government's motions were denied. ⁵ This appeal followed. ⁶

II.

Our analysis begins with, and is controlled by Silverman I and II. Silverman I, relying upon the "legislative history of section 4208(a)(2) and district court sentencing practice thereunder," ⁷ held that where the implementation of the guidelines frustrated the sentencing judge's probable expectation (with respect to the original sentence imposed, viewed at the time of imposition), resentencing was required.

We recognize that the problem presented in Silverman I was that of ascertaining the intent of the original sentencing judge who was no longer available (in a sentencing context) to reveal his own prior intent. That problem, however, does not confront us here.

In this case, the district court judge who originally sentenced Ponzio on May 21, 1973 to a six year term under § 4208(a)(2) not only was available to rule on Ponzio's § 2255 proceeding, but he was also able, in an unequivocal fashion, to explain his May 1973 sentencing intent and expectations.

It is true that when Ponzio was sentenced on May 21, 1973, the only indication of the sentencing judge's intent was the imposition of sentence pursuant to § 4208(a)(2). However, the very selection of that statute as a sentencing vehicle, a choice made prior in time to the promulgation of the new guidelines, is significant. Without more, it tells us that the sentencing judge implicitly expected (and indeed, provided the mechanism for) early parole eligibility, conditioned only upon the Parole Board's satisfaction with Ponzio's institutional adjustment and rehabilitation progress. Silverman I, supra ; see also Garafola v. Benson, 505 F.2d 1212, 1218 (7th Cir. 1974); Lambert v. United States, 392 F.Supp. 113, 117 n.2 (N.D.Ga.1975). It is also true that during the Rule 35 hearing, and indeed, during the entire period between May 1973 and August 1976, no other expression of intent or expectation was voiced by the sentencing judge. It was only at the August 6, 1976 hearing in connection with Ponzio's § 2255 proceeding, that the district court judge for the first time expressly addressed the subject of his original sentencing expectations and intent.

As we have previously observed, directly after Ponzio had commenced serving his six year sentence in November 1974, he had moved to reduce his sentence under F.R.Crim.P. 35. The Parole Guidelines had been public knowledge for about one year at that time, and while Ponzio's application for reduction of sentence did not directly advance the Silverman theory presently relied upon, Ponzio's motion papers referred tangentially to the Guidelines in connection with a discussion of the sentence of a codefendant. Essentially, Ponzio's Rule 35 application dealt with disparity in sentences between Ponzio and his codefendants, hardship on Ponzio's family, and arguments addressed to rehabilitation and to the purposes of imprisonment (all of which Ponzio claimed to have satisfied or discharged). As a result of this application, the same judge who had originally sentenced Ponzio to six years imprisonment reduced his sentence to five years, but without opinion or comment. ⁸

It was in this setting that Silverman I was filed by this Court on July 15, 1976. On July 26, 1976, Ponzio sent a letter to the sentencing judge seeking relief from further imprisonment. Viewing that letter as a petition under § 2255, argument was scheduled by the court on August 6, 1976.

It was then, for the first time, that what had been implicit in the district court's sentence, became explicit. The district court said:

. . . (B)ut sentence originally was imposed in May of 1973 and as pointed out in the opinion of the U. S. v. Salerno in late 1973, which was some period of time after the sentence was originally imposed upon you, the Board of Parole adopted new criteria and procedures for parole determinations. Those standards were not within the contemplation of this Court at the time that sentence was imposed upon you when the Court's sentence was that you be sentenced pursuant to the provisions of Section 4208 A2. (emphasis supplied.)

I may have indicated to you at that time, although I do not have the transcript before me, but I do know that there have been many, many times that defendants have appeared before this Court and I have indicated the liberality of that proceeding and have indicated that as long as you behaved yourself while in custody and demonstrated that you have been rehabilitated and ready to be returned to society, the Board of Parole would give you every consideration. As a matter of fact, numerous inmates have clamorously requested that sentences imposed be changed to § 4208 A2; because they felt that they would get earlier parole. That clamor had considerably subsided because it has been indicated to me as well as to many other federal judges that early parole is not being given under the new standards, procedures, and regulations adopted by the Board of Parole.

Now, also, at the time that I originally...