The opinion of the court was delivered by: FRANKEL
Discovering that the Bureau of Prisons and the Parole Commission have decided to "reverse" (and aggravate) the unappealed judgment of this court, the defendant moves for a reduction of his sentence. While the motion may not be the precisely apt technique for cutting the bureaucratic knot, it seems obvious that the defendant is entitled to some relief. The situation and the court's disposition are as follows.
On February 11, 1976, defendant was sentenced by this court to a term of imprisonment not to exceed two years.
So that he might have the benefit of rehabilitative treatment and the opportunity to have his conviction expunged, the sentence was adjudged under the Federal Youth Corrections Act, 18 U.S.C. § 5005 et seq. (1970) ("F.Y.C.A."),
as extended for "young adult offenders" by 18 U.S.C. § 4209.
The exact terms of the sentence were as follows:
"The defendant is hereby committed to the custody of the Attorney General or his authorized representative for imprisonment for a period of TWO (2) YEARS. Defendant is sentenced as a YOUNG ADULT OFFENDER pursuant to Section 5010(b), Title 18, U.S.Code, as extended by Section 4209. It is the intention of the Court that defendant should be deemed eligible for release from custody under Section 5017(c), Title 18, U.S.Code, at any time when the Youth Division deems such release to be justified under the governing law administered by that Division."
As is evident from the minutes of the sentencing proceeding, the court intended to place a two-year maximum on defendant's confinement. If not released earlier by the Youth Division,
defendant, assuming good behavior, was thus scheduled for mandatory conditional release in no longer than nineteen months, see 18 U.S.C. §§ 4161, 4163, and would be unconditionally released after two years.
The Government made no suggestion that there might be a question about the propriety of the sentence thus imposed. There was no appeal. Some months later, however, defendant's prison adviser informed him that his sentence was to be something different because the Bureau of Prisons (subject, as is the United States Attorney, to the Attorney General) had determined that the sentence adjudged in February was impermissible. In the Bureau's reported view, the F.Y.C.A. forbids the imposition of any fixed term short of the indeterminate maximum six years to which that Act refers. See 18 U.S.C. § 5017(c).
In effect, under the Bureau's revision of the sentence, defendant has been consigned to a six-year indeterminate term and, accordingly, will not be considered for release until November 1977,
some 21 months after the sentence, notwithstanding that he is eligible for parole pursuant to 18 U.S.C. § 4205(a)
after serving eight months and is required to be released after serving approximately 19 months if he earns the usual "good time" credits. 18 U.S.C. §§ 4161, 4163.
The problem was not formally brought to the court's attention until May 20, 1976, when assigned counsel for the defendant filed the motion now before the court to reduce the sentence to the time thus far served.
The United States Attorney responded by a letter dated June 8, 1976, advising of his now-researched view that the court's sentence was indeed invalid.
The court has concluded that the sentence imposed was valid, and that it should not be reduced. Even if the sentence were improper, however, the Government, having voiced no objection either at the time of sentencing or by way of a later writ or appeal, must treat it as valid and carry it out according to its terms. See United States v. Olds, 426 F.2d 562, 565 (3rd Cir. 1970). Compare United States v. Lane, 284 F.2d 935, 939 (9th Cir. 1960).
The fractionated and inconsistent handling of this case by the Department of Justice is a matter obviously to be regretted and corrected. It is not tolerable that the Government's officer before the court should accept a judgment without question only to have other agencies, within the same Department, proceed to nullify it. The impact upon defendants and their sense of justice requires no long essay. The broader effect upon the vital appearance of justice is equally apparent. It must be hoped that cases like this will not recur.
In any event, as has been stated, the Government should not be free to accept a judgment in the courtroom, then revise it in its prisons. While the problem of suitable relief is somewhat involved (see "IV," infra), the court relies upon the responsible efforts of the Department of Justice to rectify this defendant's unhappy plight.
Moving to the merits of the sentence in question, the court has no doubt that the issue raised by the Bureau of Prisons is substantial. Nevertheless, even if the challenge ...