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04/10/84 United States of America, v. Charles B. Coyer; United


April 10, 1984







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.


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 negative impact of this misinformation on defendant's liberty interests is clear, and the error is therefore of "constitutional magnitude."

Id. at 8. Distinguishing the Supreme Court's holding in United States v. Addonizio, 442 U.S. 178, 60 L. Ed. 2d 805, 99 S. Ct. 2235 (1979), where the Court held that a sentencing judge has "no enforceable expectations with respect to the actual release of a sentenced defendant short of his statutory term," id. at 190, the District Court concluded that in the case at hand, unlike Addonizio, the sentencing judge had been supplied with misinformation:

The distinction is that, in Addonizio, the sentencing judge provided with accurate information simply guessed wrong as to how the Parole Commission would implement his sentence. In the instant action, however, the [District] Court was provided with factually incorrect information regarding the Parole Commission's guidelines; had that information been correct, the result at sentencing would have been different.

Memorandum Opinion at 9. In the District Court's analysis, "the error in [Mr. Coyer's] presentence report" brought this case within the line of such watershed decisions as United States v. Tucker, 404 U.S. 443, 30 L. Ed. 2d 592, 92 S. Ct. 589 (1972), where the Supreme Court held that a sentencing judge could not lawfully give consideration to constitutionally invalid prior convictions in imposing sentence. To do so, the Supreme Court concluded, would be to rely upon "misinformation of constitutional magnitude," id. at 447, and would thereby impermissibly erode the rule of Gideon v. Wainwright, 372 U.S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792 (1963), since two of Mr. Tucker's prior convictions, upon which the sentencing judge had relied, resulted from proceedings in which Mr. Tucker had not been represented by counsel.

In a word, the force of Tucker and its progeny led ineluctably, in the District Court's analysis, to the conclusion that a sentence based upon "mistaken information," Memorandum Opinion at 6, cannot stand. *fn2 Accordingly, on September 14, 1983, the District Court found Mr. Coyer guilty as charged, suspended sentence, and placed him on probation for a period of five years. *fn3 This appeal followed. II.

In our analysis of this appeal, we begin with the bedrock fact that this is a collateral attack under section 2255, not a motion to reduce sentence under Fed. R. Crim. P. 35. The significance of this procedural posture is that the sentence under attack must be one that, under the circumstances of this case, was imposed in violation of the Constitution or laws of the United States. There is no contention here, nor could there be, that the sentencing court was "without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law. . . ." 28 U.S.C. § 2255. The District Court, accordingly, grounded its disposition on the conclusion that incorrect "information" relied upon in imposing sentence created a remediable constitutional defect in the original sentencing proceedings.

To reach that conclusion, the District Court determined that the original sentence imposed on Mr. Coyer was fatally infected by a Due Process violation. That fundamental defect, as suggested above, arose by virtue of the District Court's acting upon the basis of "erroneous information" represented by the probation officer's incorrect estimate of the actual time appellee would be incarcerated. This "misinformation" was viewed as partaking of constitutional significance, because the District Court's undisputed reliance upon this erroneous estimate resulted in the imposition of a longer sentence than otherwise would have been imposed.

We respectfully disagree with the learned District Judge's analysis in two respects. First, in contrast to United States v. Tucker, supra, *fn4 the probation officer's estimate of the Parole Commission's likely action did not represent a factual determination upon which the District Court could reasonably rely. The probation officer's statement was on its face and by its express terms an estimate, nothing more, nothing less. The source of that estimate was, moreover, a probation office, an integral part of the federal judicial apparatus.

This leads us to the second and more fundamental objection to what occurred below. The District Court's reasoning, albeit springing from humane concerns of fundamental fairness that inform the Due Process Clause, has led to an impermissible intrusion into the orderly operations of the United States Parole Commission, the entity specifically charged by Congress with determining, within the sentence provided by law and meted out by the District Judge, the date when federal prisoners are actually to be released from incarceration. At bottom, the District Court in this case transformed the estimate of a probation officer -- a court employee -- in Charleston, South Carolina, into a conclusive determination binding upon the Parole Commission, an independent agency of the Executive subject to the supervisory oversight of the Congress. This result improperly aborts an elaborate congressionally mandated process by which the circumstances of each federal inmate are reviewed through the Parole Commission's application of highly developed guidelines which have nationwide applicability. The net effect of the District Court's disposition in this case is therefore to permit a single probation office -- an adjunct of the judiciary itself -- to bind the Parole Commission in making its independent professional judgments. Indeed, the Parole Commission's determination that a more lengthy period of incarceration was called for here, within the limits of the sentence lawfully imposed by the District Court in the first instance, was based largely upon the magnitude of the fraud charged in Counts One through Twelve of the October 1981 indictment, the consideration of which was manifestly lawful and entirely appropriate.

This intrusion into the province of the Parole Commission is plainly prohibited by the Supreme Court's teaching in Addonizio. *fn5 In unmistakable language, the Court held that "there is no basis for enlarging the grounds for collateral attack to include claims based not on any objectively ascertainable error but on the frustration of the subjective intent of the sentencing judge." 442 U.S. at 187. There was nothing here remotely approaching "objectively ascertainable error," such as that which existed in United States v. Tucker where the sentencing court had relied upon counselless convictions rendered nugatory by Gideon v. Wainwright. It simply will not do to twist what was clearly a probation officer's mere estimate into "objectively ascertainable eror" within the meaning of Addonizio. *fn6 Not only did the probation officer flatly characterize for the world to see his projection of time Mr. Coyer would likely serve as an "estimate," but he confirmed this plain understanding in a letter of December 8, 1982, to the Atlanta Regional Commissioner of the United States Parole Commission:

We realize that our estimates have no binding influence on the decision making process of the United States Parole Commission.

The probation officer's function in this respect was to prophesy a result yet to be determined; prophets, even professionally trained ones, are sometimes wrong.

In short, an estimate labeled as such does not rise to the level of objectively ascertainable information. There was thus no erroneous information or misinformation within the meaning of Addonizio so as to warrant the District Court's vacating the original sentence. *fn7

Accordingly, the District Court's orders vacating the original sentence and thereafter resentencing Mr. Coyer are hereby vacated. The case is remanded to the District Court for the purpose of reinstating appellee's original sentence and for such further orders as are appropriate, consistent with this opinion, including ordering appellee's return to the custody of the Attorney General or his designate. *fn8

It is so ordered.

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