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denying motion to vacate sentence under § 2255, finding that the defendant was unable to show that any inaccurate information he received was of constitutional magnitude and that the placement of prisoners is in the sole discretion of BOP and that Court only makes recommendations
Summary of this case from Combs v. U.S. Attorney GeneralOpinion
Case No. 02-40056-001-JAR, Case No. 03-3039-JAR
February 3, 2003
MEMORANDUM OPINION AND ORDER DENYING DEFENDANT'S APPLICATION FOR STAY AND MOTION TO VACATE SENTENCE AND REQUEST FOR EMERGENCY HEARING
This matter is before the Court on defendant's Application for Stay (Doc. 19) and Motion to Vacate Sentence Pursuant to 28 U.S.C. § 2255 and Request for an Emergency Hearing (Doc. 17). The government has filed a response (Doc. 20). After consideration of the pleadings, the Court determines that a hearing is not needed and the Court is prepared to rule. For the following reasons, defendant's application and motion are denied.
The facts of this case are taken from the defendant's motion and the court record. On May 2, 2002, the defendant entered a plea of guilty to one count of embezzlement. On August 2, 2002, this court sentenced the defendant to twelve (12) months and one (1) day. The Court recommended that the defendant serve her sentence at a community corrections facility to allow for work release. The Bureau of Prisons (BOP) placed the defendant at Mirror, Inc. in Newton, Kansas on October 21, 2002. Defendant received a document entitled "Advance Notice of Re-Designation to Prison Institution" on December 23, 2002. The notice informed the defendant that the BOP's policy of substituting community corrections for sentences of imprisonment was contrary to U.S.S.G. § 5C1.1. The notice informed the defendant that because she had more than 150 days remaining on her sentence, she would be transferred to a prison institution after her re-designation date of January 27, 2003.
Defendant moves this Court to stay her re-designation pending a decision on her Motion to Vacate Sentence. Because this Court declines to grant relief on the Motion to Vacate Sentence, the Application for Stay is denied.
Defendant's circumstances are not new to this district. Defendant's argument is essentially that this Court had legally and factually inaccurate material information, resulting in a sentence in violation of her due process rights. Defendant argues that the information was inaccurate because the Court believed that its recommendation of community corrections would and could be followed by the BOP. The defendant argues that the retroactive application of the change in interpretation of the guidelines is a violation of her due process rights.
See United States v. Schild, 00-40021-01, 03-3028-RDR (D.Kan. Jan. 21, 2003) (finding that redesignation from community corrections to imprisonment did not render sentence invalid based on material misinformation and retroactive application does not offend ex post facto clause).
The flaw in defendant's argument is 1) that it assumes the change in interpretation rendered the judgment inaccurate due to material misinformation and 2) that it assumes that this Court would have imposed a different sentence had it known that the BOP would not or could not follow its recommendation of community corrections.
Defendant must show that the information the Court used during her sentencing was not merely inaccurate, but also of a constitutional magnitude. The Tenth Circuit has stated that "misinformation alone cannot constitute a fundamental defect. Only misinformation of a constitutional magnitude is cognizable under § 2255." The information defendant presents as inaccurate was not of a constitutional magnitude for several reasons.
U.S. v. Blackwell, 127 F.3d 947, 954 (10th Cir. 1997).
First, defendant assumes the Court only handed down a prison sentence because it believed the BOP would follow the recommendation for community corrections. The designation of prisoners is in the sole discretion of the BOP. While the Court often makes recommendations for placement, it is fully aware that those recommendations may be disregarded by the BOP for a multitude of reasons. When the BOP does not follow the recommendations of a sentencing Court, the result does not render the sentence invalid because of material misinformation.
Klawonn v. U.S., 2001 WL 669832 (June 7, 2001 6th Cir.) (finding that frustration of Court's subjective intent in sentencing does not allow for relief under § 2255).
Second, a resentencing of this defendant would not impose a different sentence and, more importantly, would still result in a sentence of imprisonment. This Court would render the same sentence even knowing the change in interpretation of the guidelines.
The defendant's presentence report ("PSR") placed her in a sentencing range of 12-18 months, with an offense level of thirteen (13) and a criminal history category I. This sentence falls in Zone D of the sentencing guidelines. Sentences that fall in Zone D require that the minimum sentence be served in prison. Consequently, probation was not an alternative for the defendant. Thus, the Court sentenced the defendant at the lowest end of the sentencing range, imposing a sentence of twelve (12) months and one (1) day.
U.S.S.G. § 5B.1.1, n. 2 ("Where the applicable guideline range is in Zone C or D or the Sentencing Table . . . the guidelines do not authorize a sentence of probation.")
While the Court recommended that the sentence be served on community corrections to allow for work release, the guidelines do not permit such a designation. The guidelines make clear that the minimum sentence allowed in Zone D sentences must be served in a prison facility. At the time of the defendant's sentencing, this and other Courts were using the terms community corrections with work release interchangeably with imprisonment. This was clarified in the new guidelines of November 2002. However, this change is not of a constitutional magnitude for prisoners who were sentenced under Zone D and never eligible for probation or any sentence other than imprisonment. Thus, defendant's due process rights have not been violated by the change in interpretation or the retroactive application of that change.
IT IS THEREFORE ORDERED that the defendant's application (Doc. 20) and motion (Doc. 17) are denied.