U.S. v. White
| Decision Date | 23 August 1976 |
| Docket Number | No. 76-1152,76-1152 |
| Parties | UNITED STATES, Appellant, v. Robert O. WHITE, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Glenda G. Gordon, Dept. of Justice, Special Litigation Section, Crim. Div., Washington, D. C., for appellant; George W. Calhoun, Robert E. Johnson, U. S. Attys., Fort Smith, Ark., and Richard L. Thornburgh, Asst. Atty. Gen., Washington, D. C., on brief.
Robert K. Scott, Little Rock, Ark., for appellee.
Before BRIGHT, ROSS and STEPHENSON, Circuit Judges.
In a § 2255 proceeding, the district court undertook to modify an eight-year prison sentence imposed upon appellee Robert O. White, said modification being made under the authority of our opinion in Kortness v. United States, 514 F.2d 167 (8th Cir. 1975). The Government in this appeal asserts that the sentencing court did not have the authority or jurisdiction to modify White's sentence. For reasons set forth below, we reverse and vacate the order of the district court.
Robert O. White pleaded guilty to a federal bank robbery charge and came before the United States District Court for sentencing on October 29, 1973. Prior to that date, on May 2, 1973, White had also pled guilty to bank robbery charges brought against him by the State of Arkansas. On the state charge, he had received a ten-year imprisonment sentence to be served in the Arkansas State Penitentiary. The federal sentence provided as follows:
It is adjudged that the defendant is hereby committed to the custody of the Attorney General * * * for a period of eight years, the same to run concurrently with the state sentence now being served. This sentence is imposed under 18 U.S.C. 4208(a)(2). (Prisoner eligible for parole at such time as the Board of Parole may determine.)
Following the imposition of the federal sentence, the Director of the Bureau of Prisons designated the Arkansas State Penitentiary as the place of confinement for commencement of service of the federal sentence. Thus, the federal sentence was served concurrently with the Arkansas sentence. The State of Arkansas paroled the defendant from his ten-year sentence on June 27, 1975, after White had served a little more than two years of that sentence. Thereafter, federal authorities transferred White to the United States Penitentiary at Leavenworth, Kansas. While at Leavenworth, White requested and was granted an in-prison parole hearing. On November 10, 1975, the Parole Board ordered that the defendant's incarceration be continued with a review hearing at the one-third point of his federal sentence (32 months). In refusing parole, the Board gave the following reasons:
Your offense behavior has been rated as very high severity. You have a salient factor score of 8. You have been in custody a total of 25 months. Guidelines established by the Board for adult cases which consider the above factors indicate a range of 36-45 months to be served before release for cases with good institutional program performance and adjustment. After review of all relevant factors and information presented, it is found that a decision at this consideration outside the guidelines does not appear warranted. However, Board policy prohibits a continuance past one-third of your sentence at initial hearing. Therefore, your case has been scheduled for further consideration at one-third of your sentence.
White then initiated § 2255 proceedings in the United States District Court seeking either vacation of the sentence or resentencing by the initial sentencing judge. The district court granted defendant's motion and ordered defendant's sentence modified and reduced to the time served prior to December 22, 1975 (the date of the district court's order), subject to White's remaining on supervised probation for a term of three years. In explanation, the district court stated in a memorandum opinion:
At the time of sentence this court * * * seriously considered placing petitioner on probation for the offense against the United States since he was already in the Arkansas Penitentiary serving a 10 year State sentence for robbing a state bank with a toy pistol an offense of the same nature as the federal charge. Because the prisoner had no record of a propensity toward violence and because of other factors revealed by the presentence report, this court chose to impose an eight year sentence and recommended that it run concurrently with the state sentence and that the sentence be served in the State penitentiary so that there could be a simultaneous parole on both sentences.
This court assumed that the Department of Justice would follow its suggestion and recommendation as it had in the past, but it did not do so, but chose to incarcerate him in a federal institution after he had been placed on parole by the State on June 27, 1975.
This court further assumed when it chose a sentence under 18 U.S.C. § 4208(a) (2) that the prisoner would receive an early and meaningful hearing and consideration for parole and that its recommendation would not be completely ignored.
The court further noted that the Parole Board in denying parole had relied on its guidelines published subsequent to the imposition of sentence in this case. The district court in modifying White's sentence relied on the Kortness case, supra.
In seeking reversal, the appellant-United States asserts that the district judge
invaded the statutory domain of the Board of Parole and under 28 U.S.C. § 2255 reduced White's sentence solely because the Board of Parole had not paroled White on the date recommended by the judge.
The Government also asserts that district courts have been interpreting Kortness as authorizing the sentencing judge to exercise continuing authority and jurisdiction to modify or reduce the sentence when the district court disagrees with the action of the Parole Board with respect to a particular prisoner.
Of course, the Kortness decision is a limited one and does not give sentencing judges the authority to supervise, control, or second-guess the Parole...
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Edwards v. U.S.
...stated that sentencing judges do not have the authority "to supervise, control, or second-guess the Parole Board." United States v. White, 540 F.2d 409, 411 (8th Cir. 1976); see Brest v. Ciccone,371 F.2d 981 (8th Cir. 1967). On the other hand, however, the Parole Board must exercise its dis......
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