filed: July 15, 1976; as amended July 30, 1976 .
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY D.C. Crim. No. 116-70 Treated as Civil under Rule 35
Before VAN DUSEN, GIBBONS and ROSENN, Circuit Judges
William Silverman appeals from the district court's denial of his 28 U.S.C. § 2255 motion to vacate and correct the criminal sentence under which he is presently incarcerated.*fn1 He contends that, because of facts unknown to the sentencing judge, that judge sentenced him under a misapprehension of the parole consequences of the sentence. Because we are persuaded by the proposition, we reverse the decision of thts district court and direct that appellant be resentenced.
Appellant was found guilty on October 27, 1972, of conspiring to transport stolen securities in interstate commerce in violation of 18 U.S.C. § 371. On January 26, 1973, Judge Garth, then of the United States District Court for the District of New Jersey, sentenced Silverman to three years' imprisonment pursuant to 18 U.S.C. § 4208(a)(2). Appellant began serving his sentence on July 1, 1974.
Section 4208(a)(2) is one of three sentencing provisions a district judge can utilize. Under 18 U.S.C. § 4202, the defendant will be eligible for release on parole only after he has served one-third of his sentence. Under 18 U.S.C. § 4208(a)(1), the judge can designate the minimum term of imprisonment that the defendant must serve before he can become eligible for parole. Section 4208(a)(2), by contrast, permits immediate eligibility for parole, giving the Parole Board complete discretion to determine when a prisoner should be paroled.
A defendant sentenced under § 4208(a n8 (2) generally receives an initial Parole Board's hearing within the first four months of confinement, Project, Parole Release Decision-making and Sentencing Process, 84 Yale L.J. 810, 819 (1975) [hereinafter cited as "Project"], and continues to be eligible for parole thereafter. Under Parole Board regulations in effect at the time Silverman was sentenced, the primary criteria on which the Board based a parole decision were institutional behavior and the probability of recidivism. See 28 C.F.R. § 2.4 (1973); Project, supra, 84 Yale L.J. at 820-22, 826. See generally, Comment, Curbing Abuse in the Decision to Grant or Deny Parole, 8 Harv. Civ.R.-Civ.L.L. Rev. 419, 427 (1973); Comment, The Parole System, 120 U.Pa.L.Rev. 282, 304-5 (1971).
In late 1973, however, the Board of Parole adopted new criteria and procedures for parole determinations.These standards are applicable to all prisoners, whether sentenced under § 4202, § 4208(a)(1), or § 4208(a)(2). The new system is based on a set of "guidelines" which are a statement of "the manner in which [the Parole Board] generally intends to exercise its discretion." Battle v. Norton, 365 F. Supp. 925, 933 (D. Conn. 1973) (Appendix I, affidavit of M. Sigler, Chairman, United States Board of Parole). Under the guideline system, hearing examiners*fn2 first look at an inmate's record to determine a "salient factor score" which is supposed to predict the likelihood that an inmate will commit a new crime within two years of release. See 28 C.F.R. § 2.20 (1975). The examiner then classifies the inmate's crime in accordance with the severity scale found in the guidelines. Id. The severity classification and salient factor score intersect on a matrixtype chart to show a predicted length of time to be served. Id. The predicted period is equal to the median term of actual incarceration served by a sample of pre-guidelines federal inmates with the same "offense behavior severity" and "salient factor score" determined retrospectively. See generally, Project, supra, 84 Yale L.J. at 822-8.
The predicted period of incarceration is only a guideline and hearing examiners may grant parole when time served is either above or below the predicted period. See 28 C.F.R. §§ 2.20(c), 2.23 (1975). However, experience indicates that the overwhelming majority of parole decisions fall within the guidelines.From October 1973 to March 1974 88.4 percent "of the decisions at initial hearings were within the guidelines" as reported to the court of appeals in Kortness v. United States, 514 F.2d 167, 169 (8th Cir. 1975). Kortness also noted that the Director of Research for the Parole Board had testified in Grasso v. Norton, 376 F. Supp. 116, 119 (D. Conn. 1974), aff'd, 520 F.2d 27 (2nd Cir. 1975), that "the Board follows its guidelines between 92 and 94 percent of the time." See Project, supra, 84 Yale L.J. at 825, n.75, 869 n.293.
By the time Silverman began his incarceration, the guidelines system was in effect. As applied to him, the guidelines suggested 45-55 months of incarceration before release on parole, the minimum period being nine months longer than his entire sentence. Silverman received a parole hearing three months after he began serving his sentence; parole was denied. After approximately one-third of his sentence was completed, Silverman's file was reviewed by a hearing examiner. Again parole was denied. He remains in custody at this time.
Silverman argues that Judge Garth snetenced him under § 4208(a)(2) so that he might be eligible for early parole. Judge Garth must have expected, he argues, that the special nature of the § 4208(a)(2) sentence would be taken into account, and that he would be given serious consideration for early parole based on the then-existing criteria, primarily institutional performance. Due to the guidelines and their implementation, Silverman had better than a 90 percent chance of serving his entire three year sentence. Silverman contends that had Judge Garth intended him to serve three years without serious parole consideration based on institutional performance, Judge Garth would not have sentenced him under § 4208(a)(2). Because Judge Garth's expectations were frustrated by the implementation of the guidelines system, the argument continues, Silverman claims he is entitled to resentencing by a judge aware of the parole consequences of the setence given.*fn3
The district judge rejected this argument. He reasoned that Judge Garth's use of § 4208(a)(2) indicated only an intent that Silverman should receive early meaningful parole consideration. Also, Judge Garth knew that the parole decision was within the Board's discretion. He further reasoned that Silverman received the required early consideration in the three-month point hearing and that application of the guidelines was not inconsistent with the discretion vested in the Parole Board pursuant to 18 U.S.C. § 4203. The guidelines assume good institutional adjustment and decisions can be made outside the norms if institutional performance warrants it. Thus, Judge Coolahan concluded, use of the guidelines is perfectly consistent with Judge Garth's expectation of meaningful parole consideration.*fn4
The legislative history of § 4208(a)(2) amply indicates that it was intended to give district judges a mechanism to adjust the length of a defendant's sentence to his progress in rehabilitation programs and his attitude toward a return to society. See Hearings on H.J. Res. 424, H.J. Res. 425, and H.R. 8923 Before Subcommittee No. 3 of the House Committee on the Judiciary, 85th Cong. 2d Sess., Ser. 14 (1958) at 5-6, 8-9; Garafola v. Benson, 505 F.2d 1212, 1216-7 (7th Cir. 1974); Grasso v. Norton, 371 F. Supp. 171, 173-4 (D. Conn. 1974). District judges have so interpreted and utilized the statute. See authorities collected in Garafola v. Benson, 505 F.2d at 1218; Grasso v. Norton, 371 F. Supp. at 174; Project, supra, 84 Yale L.J. at 845, 890 n.388. Indeed, Judge Lacey of the United States District Court for the District of New Jersey recently concluded ...