decided: December 5, 1979.
EDWARD MOORE, APPELLANT,
W. RAYMOND NELSON, WARDEN, FEDERAL CORRECTIONAL INSTITUTION, DANBURY, CONNECTICUT, APPELLEE.
Appeal from a judgment of the United States District Court for the District of Connecticut (Ellen Bree Burns, Judge), dismissing a petition for habeas corpus brought to challenge the application of the parole guidelines of the United States Parole Commission to a federal prisoner sentenced under 18 U.S.C. § 4205(b)(2).
Before Kaufman, Chief Judge, Newman and Kearse, Circuit Judges.
This appeal from a denial of a petition for habeas corpus concerns the parole guidelines currently being used by the United States Parole Commission. 28 C.F.R. § 2.20 (1978). The issue is whether the guidelines may be applied to a "(b)(2)" federal prisoner sentenced under 18 U.S.C. § 4205(b)(2) (1976), which makes him eligible for parole at any time, rather than at the one-third point of his sentence, when he would be eligible for parole if he received a regular adult sentence under 18 U.S.C. § 4205(a) (1976).*fn1
Petitioner Edward Moore was sentenced pursuant to § 4205(b)(2) to eleven concurrent terms of four years for offenses involving forged Treasury checks. He began serving the four-year sentence on January 27, 1978. Because his (b) (2) sentence made him eligible for early parole, he received an initial parole hearing on April 19, 1978 after serving less than three months of his sentence.*fn2 The Commission denied parole, and the decision was upheld in administrative appeals at the regional and national levels.
The Commission explained the reason for parole denial in the Notice of Action, set out in the margin.*fn3 As this Notice makes clear, the Commission determined that under the parole guideline applicable to petitioner and to his offense a range of 48 to 60 months was to be served before release. Concluding after review of "all relevant factors and information" that a parole release decision below the guideline range was not warranted, the Commission continued Moore to the expiration of his 48-month sentence, but scheduled another hearing for October, 1979, as required by 18 U.S.C. § 4208(h)(1) (1976).
Moore challenged the denial of parole by seeking a writ of habeas corpus from the United States District Court for the District of Connecticut. That Court (Ellen Bree Burns, Judge) denied relief, finding the Commission's action entirely lawful.
On appeal,*fn4 Moore contends that the Commission, in deciding whether to parole a (b)(2) prisoner, (1) may not consider the severity of the offense for which the prisoner was sentenced and (2) must give primary consideration to the prisoner's progress toward rehabilitation. He asserts that the use of the guidelines, or perhaps the manner in which they are used, results in a parole decision that does consider offense severity and that fails to give sufficient consideration to rehabilitation. These alleged deficiencies, he contends, violate § 4205(b)(2) and usurp both legislative and judicial roles in the sentencing process.
We think the issues in this case are essentially matters of statutory construction. Prior to the enactment of the Parole Commission Reorganization Act of 1976 (PCRA), 18 U.S.C. §§ 4201-4218 (1976), the authority of a sentencing court to permit the Parole Board (as it was then called) to release a prisoner before the one-third point of his sentence was contained in what was then 18 U.S.C. § 4208(a)(2), Pub.L.No. 85-752, § 3, 72 Stat. 845 (1958). At that time there was no explicit statutory authority for the parole guidelines, which were first used experimentally by the Board in 1972. See Battle v. Norton, 365 F. Supp. 925 (D.Conn.1971); see, generally, Project, Parole Release Decisionmaking and the Sentencing Process, 84 Yale L.J. 810 (1975). From 1972 to 1976 it was a fair question whether the application of the guidelines to a then designated (a)(2) prisoner diminished the emphasis on rehabilitation in parole decision-making that was contemplated when § 4208(1)(2) was enacted in 1958. See Grasso v. Norton, 520 F.2d 27, 32-33 (2d Cir.1975); Garafola v. Benson, 505 F.2d 1212, 1217-19 (7th Cir.1974).
However the issue ought to have been decided before 1976, it does not remain in doubt thereafter. While the PCRA continued the concept of an (a)(2) sentence renumbering the provision as § 4205(b)(2),*fn5 it also explicitly authorized the reorganized Parole Commission to establish parole guidelines, § 4203(a)(1), and mandated that release of a prisoner eligible for parole would be "pursuant to" the guidelines, § 4206(a). There is nothing in the text of the PCRA to indicate that the Commission is obliged to apply the guidelines differently to (b)(2) prisoners than to those serving regular sentences. The PCRA simply makes (b)(2) prisoners Eligible for release before the one-third point of their sentences; it does not specify any special considerations that are to apply in determining whether to grant them parole below, within, or above the appropriate guideline range. See Shahid v. Crawford, 599 F.2d 666 (5th Cir.1979).
Nor does the legislative history of the PCRA provide a basis for requiring special parole consideration for (b)(2) prisoners. The Senate report noted that while "standards for release on parole . . . are not significantly changed from existing law," the "only notable change is that the standards and criteria are made the same for all federal prisoners without regard to which of the three main sentencing alternatives is utilized by the court."*fn6 S.Rep.No. 94-369, 94th Cong., 1st Sess. 18 (1975), Reprinted in (1976) U.S.Code Cong. & Admin.News, pp. 335, 339-40. The Conference report emphasized the significance of the guidelines in parole decision-making. "(Section 4206) provides that Parole Commission guidelines, shall provide a fundamental gauge by which parole determinations are made." H.Conf.Rep. 94-838, 94th Cong., 2d Sess. 26 (1976), Reprinted in (1976) U.S.Code Cong. & Admin.News, pp. 351, 359. In fact the Conference report states that § 4206 "permits the Commission to grant or deny parole notwithstanding the guidelines only when the Commission has determined that there is good cause to do so." Id. at 27, U.S.Code Cong. & Admin.News, p. 359. And when the Conference report illustrated what would be good cause for parole release below the guidelines, it mentioned "factors such as a prisoner's adverse family or health situation." Ibid. There is no reference to special consideration for (b)(2) prisoners.
We do not doubt that a prisoner's rehabilitation is an entirely appropriate consideration for the Commission to assess in deciding whether to grant release within or below the guidelines. But we cannot agree that in enacting the PCRA, Congress mandated that this factor receive extra consideration when the prisoner is serving a (b)(2) sentence. As for offense severity, Congress' emphasis on the use of the guidelines for all prisoners eliminates any doubt that this criterion, which is one of the two determinants of an appropriate guideline, may be considered for (b)(2) prisoners.
Before Congress explicitly authorized parole guidelines, we had occasion to point out that judges imposing what were then (a)(2) sentences frequently expected that rehabilitation would play a significant part in whether the prisoner obtained the early parole release for which the (a)(2) sentence made him eligible. See Grasso v. Norton, supra, 520 F.2d at 33. With the enactment of the PCRA and the increased realization within the judiciary of the manner in which the guidelines are applied,*fn7 it should now be clear to all sentencing judges that rehabilitation plays a minor part in the Commission's decision to parole a prisoner,*fn8 and has no special significance for (b)(2) prisoners. We trust that no sentencing judge will mistakenly believe that a (b)(2) sentence significantly increases the likelihood of parole release before the one-third point of a sentence*fn9 or at any point below the guideline range.
While we have previously questioned the wisdom of applying the parole guidelines to prisoners like Moore who are in effect serving indeterminate sentences in view of their early parole eligibility, United States v. Jackson, 550 F.2d 830, 832 (2d Cir.1977) (Youth Corrections Act sentence); United States v. Cruz, 544 F.2d 1162, 1164-65 n.6 (2d Cir.1976) (same), we have acknowledged that if changes are to be made, they are matters for "administrative reform or Congressional action." United States v. Jackson, supra, 550 F.2d at 832. Shepard v. Taylor, 556 F.2d 648, 654 (2d Cir.1977), also makes clear the lawfulness of applying the parole guidelines to a prisoner sentenced under the Youth Corrections Act, provided the offense occurred after the enactment of the 1976 legislation.
We have considered the Third Circuit's extensive critique of the parole guidelines in Geraghty v. United States Parole Commission, 579 F.2d 238 (3d Cir.1978), Cert. granted, 440 U.S. 945, 99 S. Ct. 1420, 59 L. Ed. 2d 632 (1979), and respectfully disagree with the views there expressed as to both statutory issues and constitutional overtones. Whatever differences in viewpoint may have been expressed as the initial versions of the PCRA moved through the House and Senate, Id. at 256-59, we are satisfied that the enacted version permits the Commission to apply its guidelines to (b)(2) prisoners and precludes the courts from attempting to restructure the manner in which the Commission exercises its discretion in individual cases. Moreover, we find no intrusion by the Commission upon legislative or judicial prerogatives. Congress specifies the maximum sentence, and, on occasion, the minimum sentence. Within statutory limits the district court selects an appropriate sentence. Whether the defendant serves all or only some portion of that sentence is essentially a matter within the discretion of the Parole Commission.
Of course, the Commission's discretion must be exercised within the bounds of law imposed by the statute and by the Constitution. Those bounds have not been exceeded in this case.