UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Appeals from the United States District Court for the District of Columbia.
Wald, Bork and Starr, Circuit Judges. Opinion for the Court filed by Circuit Judge Starr.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE STARR
The sole but important issue presented by this appeal is whether the District Court acted properly in vacating the sentence of a criminal defendant under 28 U.S.C. § 2255 (Supp. V 1981). The court granted section 2255 relief on the grounds that in imposing sentence originally it had relied on an estimate, which subsequently proved to be incorrect, contained in a pre-sentence investigation report of the amount of time that would be served by the defendant. We are constrained to conclude, for the reasons that fellow, that the District Court erred. I.
The trail of events leading to the question now before us began in October 1981, when a federal grand jury in the District of Columbia returned a fourteen count indictment charging Mr. Coyer with various violations of federal and District of Columbia criminal laws arising out of two proposed real estate investment projects. The first twelve counts of the indictment related to an alleged scheme to defraud investors in Richmond, Virginia and Washington, D.C. in the course of a proposal to purchase real estate in Richmond and to develop the property into rental apartment housing. The indictment charged that Mr. Coyer, who was acting as the promoter for the investment scheme, obtained $95,000 from the Washington and Richmond investors by means of false representations and that he thereafter converted these fraudulently secured funds to his own use. The last two counts of the indictment charged appellee with having defrauded one of the Washington investors in the original venture of an additional $10,000 in connection with the proposed purchase of an apartment building in Washington, D.C. *fn1
Represented by court appointed counsel, Mr. Coyer entered a guilty plea to a single count (Count 13) of the indictment on January 15, 1982. Almost three months later, on April 5, 1982, the District Court sentenced Mr. Coyer to imprisonment for a period of from one to three years. The remaining thirteen counts of the indictment were dismissed. Consistent with the District Court's recommendation that Mr. Coyer be incarcerated at a minimum security institution and following the court's granting an extension of time within which appellee was to surrender himself to the custody of the Attorney General, Mr. Coyer began serving his sentence at the minimum security facility at Eglin Air Force Base, Florida, on May 28, 1982.
The ensuing months passed uneventfully until, in late 1982, Mr. Coyer wrote directly to the District Court indicating that he found himself in the uneviable "position of badly needing help and guidance." According to his letter, which the District Court construed as a motion to vacate or correct sentence under 28 U.S.C. § 2255, Mr. Coyer was disconcerted to learn that, by the application of United States Parole Commission guidelines, he would remain incarcerated "by up to an additional 12 months" beyond the one-year period that the District Court had apparently originally intended in imposing sentence. The basis of Mr. Coyer's assumption as to the intended actual length of his one-to-three -year sentence was that, priro to his April 5, 1982 sentencing, a presentence report had been prepared by the United States Probation Office attached to the federal district court for the District of South Carolina, the district in which Mr. Coyer had been residing since 1978. That report canvassed the prosecution's case against Mr. Coyer as to all fourteen counts, set forth Mr. Coyer's version of the facts underlying the offenses charged, and then stated:
If committed, it is estimated that [Mr. Coyer] will be required to serve between 10 and 14 months, according to the U.S. Parole Commission Guidelines.
The estimate, however, turned out to be incorrect, to Mr. Coyer's great distress. In calculating appellee's presumptive parole release date, the Parole Commission representatives who interviewed Mr. Coyer at the federal correctional facility at Eglin had, according to the latter's missive to the District Court, taken into account the thirteen dismissed counts in the October 1981 indictment, rather than focusing exclusively upon the single count to which he had pled guilty. This represented, Mr. Coyer concluded, "a material change [in the sentence], contrary to what was intended and understood by all at . . . sentencing."
In response to Mr. Coyer's letter, the District Court issued an order on January 28, 1983, directing the Government to respond to appellee's claims. In that order, the court stated:
The Court is reminded of the strong representation in the presentence report with respect to the amount of time defendant would be required to serve on his sentence according to the Parole Commission guidelines. It now appears that this information may have been inaccurate.
As foreshadowed by the January 1983 order, the District Court on August 8, 1983, vacated Mr. Coyer's sentence, ordered his release on his own recognizance, and set a resentencing hearing for early September 1983. The district judge stated that "the Court relied on the accuracy of the probation office's estimation" in originally imposing sentence. Memorandum Opinion at 4. Tracing the case law development of the principle that a challenge appropriately lies "to a sentence imposed by a federal judge who relied in sentencing on 'misinformation of constitutional magnitude,'" id. at 6 the District Court concluded that "the basic principle of fairness" undergirding prior sentencing cases was implicated by the specific facts of Mr. Coyer's situation:
The [prior] cases . . . all involved misinformation regarding a defendant's prior criminal record or prior conduct, that later appeared to be false or unreliable. The information relied upon by the Court in the instant situation involved application of the Parole Commission's guidelines. But the prejudicial effect on [Mr. Coyer] is the same in this case . . .; but for the inaccurate information contained in the presentence report and relied upon by the Court, [Mr. Coyer] would have been sentenced less severely. The ...