Opinion
Civil Action No. 03-10264-RCL.
May 2, 2003.
MEMORANDUM AND ORDER ON MOTION FOR RELIEF UNDER 28 U.S.C. § 2255
This is a petition of Joyce Godbout under 28 U.S.C. § 2255 for an order vacating, setting aside or correcting the sentence I imposed on her by judgment dated November 20, 2002. The petitioner contends that the retroactive application of a new policy of the Bureau of Prisons ("BOP") which would place her in a federal prison, rather than in a community correction center ("CCC") violates the due process and ex post facto clauses of the Constitution of the United States. The government responds that the petitioner is not entitled to the relief she seeks because, as a matter of law, the sentence imposed required that the petitioner be designated for confinement in a federal prison, and that the BOP had no discretion to do otherwise. The government argues further that, even if the BOP had discretion to designate the petitioner for assignment to a CCC under the sentence imposed, that discretion would not establish that the petitioner's designation for assignment to a federal prison is a violation of a constitutional right. For the reasons stated below, the petitioner's motion is GRANTED, and the sentence imposed by the judgment of November 20, 2002 is VACATED.
The petitioner, a 69 year-old woman at the time of sentencing, pleaded guilty to four counts of mailing threatening communications in violation of 18 U.S.C. § 876. The sentencing guideline applicable in the circumstances provided, among other things, for a term of imprisonment ranging from 30 to 37 months. I departed from the applicable guideline range based on my finding that the petitioner suffered diminished mental capacity at the time she committed the offenses. U.S. Sentencing Guideline Manual, § 5K2.13. With the departure, I imposed a sentence that included a term of imprisonment of twelve months and one day, with a recommendation to the BOP that the petitioner serve that term in a CCC. The sentence was designed to take account of the gravity of the offenses, to punish the petitioner for committing them and to deter the petitioner and others from similar conduct in the future, but at the same time, to recognize that these offenses were committed while the petitioner's behavior was affected to a significant degree by a mental disability. I did not, at any time, consider that any goal of the criminal justice system would be served by confining the petitioner in a federal prison. To put the matter differently, the punishment appropriate for the petitioner, in my view, included a significant restriction of her liberty for a time in an environment other than her home or a federal prison.
On December 16, 2002, the BOP abandoned its longstanding policy of honoring judicial recommendations that low-risk, non-violent offenders serving short prison sentences — offenders like the petitioner — be designated for placement in a CCC. Based on a memorandum prepared by the Office of Legal Counsel of the Department of Justice for Deputy Attorney General Larry Thompson, the BOP announced that, as a matter of law, the "term `community confinement' is not synonymous with imprisonment" and that "[t]he BOP will not use CCCs as a substitute for imprisonment." Letter from David Dwyer, Community Corrections Manager, BOP to Reginald C. Lindsay (December 24, 2002) ("BOP Letter"). In particular, the new policy declared that the BOP did not have general authority to place an offender in a CCC at the outset of the offender's sentence if the offender has been given a sentence of imprisonment under Zone C or Zone D of the Sentencing Guidelines. Memorandum for Larry D. Thompson Deputy Attorney General (Office of Legal Counsel, U.S. Department of Justice) (December 13, 2002). Under the new policy, the BOP, contrary to its pre-December 16, 2002 policy, will no longer even consider a judicial recommendation that an offender with a Zone C or Zone D sentence be designated for placement in a CCC. The new policy required the transfer to an actual prison facility of offenders residing in a CCC who had more than 150 days remaining on the imprisonment component of their sentences as of December 16, 2002. Memorandum from Larry D. Thompson, Deputy Attorney General, to Kathleen Hawk Sawyer, Director of Federal Bureau of Prisons (December 16, 2002) ("Thompson Memorandum"). Thus for offenders having the arbitrarily set 150 days remaining on their sentences as of December 10, 2002, the new policy was retroactive.
It is unclear how 150 days came to be chosen as the line of demarcation for retroactive application of the new policy.
I had initially set January 6, 2003, as the date on which the petitioner was required to report to the facility designated by the BOP. I was informed by the BOP letter, however, that the petitioner was affected by the new policy, and that the petitioner would be "designated to a federal institution" instead of to a CCC.
On December 31, 2002, the petitioner, asserting that a federal prison had been designated as a place to which she was to report, sought an extension of the reporting date in order to assess the legality of the BOP's new policy and to determine whether the court could grant relief from the designation made by the BOP. United States v. Joyce M. Godbout, No. 02-CR-10082-RCL. (Motion for Extension of Reporting Date, Docket No. 20) (Mass. Dec. 31, 2002). I granted that motion and extended the reporting date to January 27, 2003. Id. (Jan. 3, 2003). On January 16, 2003, the petitioner filed a motion for modification/correction of sentence pursuant to Fed.R.Crim.P. 36. Id. (June 10, 2003). I denied that motion, but ordered additional extensions of the reporting date on January 23 and February 5 to determine whether relief was available to the petitioner under 28 U.S.C. § 2255. Id. (Jan. 23, 2003; Feb. 5, 2003) The petitioner filed the present motion on February 10, 2003. Id. (Feb. 10, 2003). On March 31, 2003, I again extended the reporting date — this time to June 2, 2003. Id. (Mar. 31, 2003).
As Judge Woodlock of this district has pointed out: "The new rule reflected a sea change in settled understandings concerning the exercise of discretion by the [BOP]." Mallory v. United States, 2003 WL 1563764 at *1 (Mass. Mar. 25, 3003). Deputy Attorney General Thompson noted, in directing a change in the designation policy in his December 16, 2002 memorandum, that the BOP had "a policy of accommodating judicial requests" for the placement of low-risk, non-violent offenders with short sentences in CCCs. Thompson Memorandum at 1. In a letter to Judge Ponsor of this district, Kathleen Hawk Sawyer, Director of the BOP, acknowledged that honoring appropriate judicial recommendations for the placement of offenders in CCCs was "deeply rooted." Letter to the Honorable Michael A. Ponsor from Kathleen Hawk Sawyer (January 3, 2003). Judge Ponsor himself correctly pointed out in Iacaboni v. United States, that,
[T]he availability to judges of the option of recommending appropriate defendants to community confinement for short prison terms has been discussed and approved at regular sentencing seminars since the Sentencing Guidelines were first enacted. Judges, in other words, have been actively instructed and encouraged this valid sentencing option.2003 WL 1442420 at *6 (D. Mass. Mar. 20, 2003). Judge Ponsor went on to observe that the BOP itself had encouraged judges to consider CCCs for appropriate offenders. Id. at 11. He noted that the 2000 Bureau of Prisons Judicial Resource Guide to the Federal Bureau of Prisons (the "Judicial Resource Guide") provides that a "[CCC] meets the definition of a `penal correctional facility'" . . . Id. He also quoted the BOP's "Security Designation and Custody Classification Manual" as stating "direct commitment to CCC's may be made on the court's recommendation." Id. (internal quotation marks and citation omitted.) The government itself in this case has recognized the near universality of the BOP's practice of honoring judicial recommendations for CCC placement for low-risk, non-violent offenders sentenced to short prison terms. In a transcript of another proceeding attached to the government's brief in opposition to the present motion, an Assistant United States Attorney is recorded as saying:
Mr. Pearlstein: You know, it does not invariably follow because, obviously it's [honoring a judicial recommendation for placement of an offender in a CCC] up to the Bureau of Prisons, but I will tell you that in my experience that is the practice. That is the policy. And I cannot think of a single one of my cases where a judicial recommendation under those circumstance, particularly for first-time offenders, has not been followed.
Government's Opposition to Motion for Habeas Relief Pursuant to 28 U.S.C. § 2255, Ex. B. (Transcript of Sentencing Hearing in United States v. Stephen A. Dileo and Harry Nicholasen No. 99-CR-10258-DPW, before the Honorable Douglas P. Woodlock at 8. (June 18, 2000)). And, of course, as evidenced by the present motion and the prior motion under Rule 36, the petitioner understood and relied upon the BOP's pre-December 16, 2002 policy of generally honoring judicial recommendations that offenders like her be placed in a CCC: "Had Ms. Godbout known that community confinement was not an option, she could have, and would have, sought a more definitive ruling on her motion for downward departure." Petitioner's Memorandum of Law in Support of Motion for Habeas Relief Pursuant to 28 U.S.C. § 2255 at 9.
The new policy has generated a veritable tidal wave of litigation arising from claims of affected offenders that the new policy itself misstates the BOP's designation authority under 18 U.S.C. § 3021(b) or that the peremptory nature of the implementation of the policy violates the Constitution, the Administrative Procedure Act or both. Some courts have rejected these protestations. See, e.g., United States v. Andrews, 2003 WL 142492 (E.D. Mich. Jan. 13, 2003); United States v. Schild, 2003 WL 260672 (Kan. Jan. 21, 2003); United States v. James, 2003 WL 328842 (E.D. Mich. Jan. 27, 2003); United States v. Gilbride, 2003 WL 297563 (M.D. Pa. Jan. 31, 2003); United States v. Herron, 2003 WL 272170 (Kan. Feb. 3, 2003); Borgetti v. Bureau of Prisons, 2003 WL 743936 (N.D. Ill. Feb. 14, 2003); United States v. Kramer, 2003 WL 1964489 (N.D. Ill. April 28, 2003). In none of these cases, however, has the court been explicit that it would have (or could have) made a different sentencing decision had it known of the new policy. Other courts have granted relief. See, e.g., United States v. Cerpa, Cr. No. 0210118, 2003 WL 1216656 (Mass. March 12, 2003); Culter v. United States, 2003 WL 184022 (D.C. Jan. 24, 2003); United States v. Canavan, 2003 WL 245226 (Minn. Jan. 22, 2003); Ashkenazi v. Attorney General, 2003 WL 403091 (D.C. Feb. 24, 2003); Ferguson v. Ashcroft, 2003 WL 119116 (M.D. LA Feb. 27, 2003); Howard v. Ashcroft, 2003 WL 1191098 (M.D. LA Feb. 27, 2003); Bird v. Moore, 2003 WL 1478091 (W.D. N.C. March 6, 2003). Judges in this district have also granted relief. See, e.g., Mallory and Iacaboni.
In lacaboni, Judge Ponsor mounts a persuasive attack on the legal analysis underlying the adoption of the new policy and upon the constitutionality of its retroactive application. Because I conclude that the implementation of the new policy is fraught with constitutional infirmity, I need not address the validity of the analysis on which the policy purports to be based or the correctness of the policy with respect to future placement of offenders in a CCC under the Sentencing Guidelines. Instead, I adopt and incorporate as reason for my decision to vacate the petitioner's sentence in the present case the reasoning underlying Judge Ponsor's conclusion that the new policy of the BOP may not be applied retroactively.
When I sentenced the petitioner here, I was laboring under two closely related factual assumptions, which the new policy, post-sentencing, informed me were erroneous. First, I assumed that the BOP would at least consider my recommendation for the placement of the petitioner in a CCC, given the BOP's long history of considering (and in most cases) honoring such recommendations. I also assumed that, as the Judicial Resource Guide advises, a CCC meets the definition of a penal facility. Had I not made these erroneous factual assumptions, I would have fashioned an entirely different sentence to implement the sentencing goals I found most appropriate for the petitioner. The opportunity to state in different terms the sentence I found appropriate was available to me, given that I had found grounds for departure. I would have employed such terms had I been informed by the BOP of its new policy.
In this connection, it is important that I point out that I did not sentence the petitioner as a Zone C or Zone D offender. Frankly, I was not thinking in terms of zones at all. The petitioner was brought within the ambit of the new policy when the BOP (not I) placed her in a zone, because the sentence I imposed unfortunately employed a form of the word "imprison": I ordered that the petitioner be "committed to the custody of the United States Bureau of Prisons to be imprisoned for a total term of twelve months and 1 day." Godbout (Judgment at 2) (Nov. 20, 2002)). Perhaps with the invocation of different language to achieve the sentence I deemed appropriate, the present problems might have been avoided.
The sentence I imposed (or to be precise the sentence that I believed I imposed) has been transformed in its implementation to a different sentence, as a consequence of my erroneous factual assumption. But as the court in Culter stated, "[t]his is not merely a case of frustrated expectations. Rather, this is a case in which the [BOP's] longstanding interpretation and application of the law affirmatively misled the court into imposing a particular sentence." Culter at *8. "Numerous decisions confirm that a sentence based upon an erroneous factual assumption or other error violates due process." lacaboni at *27. (citations omitted). So it is here. The due process violation is particularly acute in this case in which the error, in very large part, results from misinformation consistently provided to judicial officers by the BOP itself over many years. Under these circumstances, there would be a fundamental miscarriage of justice if the BOP were allowed to place the petitioner in a federal prison pursuant to its new policy.
I also conclude that the adoption of new policy was an act legislative in nature. "This is no mere effort at interpretative guidance, but rather a rulemaking exercise designed to reshape the scope of a statutory provision through an administrative statement of lawmaking." Mallory at *2. That is to say, the petitioner was not designated for confinement in a federal prison because of a determination the BOP made with respect to the circumstances of her case, but as a consequence of a new rule of the BOP of general applicability concerning how the BOP will interpret its authority to designate appropriate institutions for offenders pursuant to 18 U.S.C. § 3621. "Such an undertaking requires notice and comment under 5 U.S.C. § 553, a provision of the Administrative Procedure Act not included within the limitations of 18 U.S.C. § 3625 on applicability of the APA to BOP determinations under section 3621." Id. The failure of the BOP to afford notice and an opportunity for comment is also a ground upon which the relief petitioner seeks may be granted.
Conclusion
For the foregoing reasons, the motion of the petitioner under 28 U.S.C. § 2255 is GRANTED. The judgment of November 20, 2002 imposing sentence on the petitioner is hereby VACATED. The petitioner will be resentenced at a date and time to be scheduled by the clerk. The resentencing will be based on the findings of fact regarding applicable guideline range and departure grounds made at the original sentencing hearing.
SO ORDERED.