Opinion
Case No. C-3-99-129
March 20, 2000
Steven S. Nolder, Attorney for Plaintiff.
James A. Wilson, Attorney for Defendant.
This litigation stems from Petitioner Gerald H. Klawonn's conviction and sentence for tax evasion in violation of 26 U.S.C. § 7201. Klawonn pled guilty to the charge on December 12, 1997, in case number CR-3-97-71. After reviewing a presentence investigation report and conducting a hearing, the Court sentenced him to a six-month term of imprisonment to be followed by a two-year term of supervised release. (Case No. CR-3-97-71 at Doc. #33, 34). The Court's Judgment Entry included a recommendation to the Bureau of Prisons "that the Defendant be incarcerated at [a] Community Corrections Center in the Dayton area and that the Defendant be granted work release privileges." (Id. at Doc. #34). Thereafter, the Bureau of Prisons assigned Klawonn to the Alvis House Cope Center for the completion of his term of incarceration. Upon his arrival at Alvis House, Klawonn informed his case manager that his employment required out-of-state travel. In response, he was told that Bureau of Prisons policy forbids inmates from engaging in interstate travel while on work release. On March 15, 1999, the Court conducted a hearing on the issue of Klawonn's travel privileges while at Alvis House. (Id. at Doc. #35).The following day, the Court filed an Entry temporarily suspending execution of Klawonn's sentence, pending the filing and resolution of a Motion to withdraw his guilty plea. (Id. at Doc. #36).
The sentence also included a fine and an order of restitution.
Klawonn is a sales representative for a business known as Industrial Sales Corporation ("ISC"). His responsibilities include servicing manufacturers in a multi-state area. Klawonn previously represented to the Court that his incarceration, without the ability to work, would lead to the cancellation of business contracts, which would result in the closing of the business. (See, e.g., Case No. CR-3-97-71 at Doc. #27).
Thereafter, on March 23, 1999, Klawonn invoked the Court's jurisdiction pursuant to 28 U.S.C. § 2255 and filed a Motion to Withdraw his Guilty Plea (Doc. #37-1) and an alternative Motion for Correction of his Sentence (Doc. #37-2). In support of both Motions, Klawonn argues that the Court relied on misinformation from the Bureau of Prisons when imposing his sentence. Specifically, he contends that the Court relied on a representation by the Bureau of Prisons that he would be permitted "to conduct [his] business while he was a resident at the Alvis House Cope Center." (Id. at 3). Klawonn contends that the Bureau's policy of prohibiting interstate travel by inmates has frustrated the Court's intent, which was to fashion a sentence that would permit him to continue operating his business while serving his term of community confinement. (Id. at 7). Klawonn argues that the Court's reliance on the aforementioned misinformation from the Bureau of Prisons has deprived him of his due process rights. As a result, he argues that the Court should either: (1) allow him to withdraw his guilty plea; or (2) "correct" his sentence by granting him a downward departure in order that no term of incarceration would be required.
I. Analysis
Klawonn has invoked the Court's jurisdiction under 28 U.S.C. § 2255, which provides, in relevant part:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto. If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.
In the present case, the Court conducted a March 15, 1999, hearing on the central issue raised herein. Consequently, the Court discerns no need for a second hearing pursuant to § 2255. Additionally, the Court finds, for the reasons set forth more fully, infra, that the files and records demonstrate conclusively that Klawonn is not entitled to relief under § 2255. Under such circumstances, § 2255 does not require the Court to hold a hearing prior to ruling on the pending Motions.
Relying upon the foregoing language, Klawonn first argues that the Court should permit him to withdraw his guilty plea. Under § 2255, Klawonn must establish "the existence of `a fundamental defect which inherently results in a complete miscarriage of justice' or `an omission inconsistent with the rudimentary demands of fair procedure' in order to be able to withdraw his plea." United States v. Todaro, 982 F.2d 1025, 1028 (6th Cir. 1993). In the present case, however, Klawonn does not even allege the existence of a defect or omission in connection with his guilty plea. He makes no argument that the Court violated Rule 11 when taking his plea. Nor does he argue that his guilty plea was not made knowingly, intelligently and voluntarily. Rather, his only argument is that the Court relied on misinformation from the Bureau of Prisons when imposing his sentence, an event which occurred months after the entry of his guilty plea. Because Klawonn's argument relates solely to the circumstances surrounding his sentencing, as opposed to the entry of his plea, the Court discerns no basis for allowing him to withdraw the plea. Cf. United States v. Blackwell, 127 F.3d 947, 956-957 (10th Cir. 1997) (finding no basis for vacating a plea under § 2255 when the only errors alleged were sentencing-related). Accordingly, his Motion to Withdraw his Guilty Plea (Doc. #37-1) will be overruled.
Klawonn is not precluded from seeking relief under § 2255 even though he filed his petition after the Court temporarily suspended further execution of his sentence on March 16, 1999. Although § 2255 only applies to prisoners who are "in custody," an individual who is released after conviction, pending execution of his sentence, is considered "in custody" for purposes of obtaining habeas corpus relief. Hensley v. Municipal Court, 411 U.S. 345, 351-352 (1973).
In support of his Motion to withdraw his guilty plea, Klawonn also cites Fed.R.Crim.P. 32(e). By its own terms, however, that Rule only applies when a sentence has not been imposed. After sentencing, "a plea may be set aside only on direct appeal or by motion under 28 U.S.C. § 2255." Fed.R.Crim.P. 32(e).
The only remaining issue is whether Klawonn has established grounds for the Court to "correct" his sentence pursuant to § 2255. As set forth above, Klawonn cites the Court's reliance on "misinformation" from the Bureau of Prisons as the basis for a correction of his sentence. Specifically, he alleges that the Court sentenced him to six months of incarceration with the intention that he would be permitted to operate his business (which requires out-of-state travel). (Doc. #37 at 3). He also alleges that the Court relied on a representation from the Bureau of Prisons that it would designate him "in a manner in which the Court's sentencing intention would be implemented." (Id.). Finally, Klawonn contends that the Bureau of Prisons failed to inform the Court that it prohibited out-of-state travel by residents of "halfway houses." (Id. at 3-4). Under these circumstances, Klawonn argues that his sentence violated his due process rights, because it was not based on the "informed discretion" of the Court. (Id. at 4, 7).
Upon review, the Court finds Klawonn's argument unpersuasive. As an initial matter, the Court does not dispute that it certainlyintended to impose a sentence which would allow him to continue operating his business while serving his term of incarceration. The Court has no recollection, however, of any pre-sentence representation by the Bureau of Prisons that Klawonn definitely would receive work-release privileges, or that he would be permitted to travel out of state while incarcerated at Alvis House or elsewhere. The Court is well aware that both the designation of an institution at which a defendant is confined, and, to a large degree, the conditions of that confinement are matters exclusively within the purview of the Bureau of Prisons. In these areas, a trial judge can only recommend; he cannot direct or order. As a result, the Judgment Entry in Klawonn's criminal case merely reflects a recommendation to the Bureau of Prisons to confine him in the Dayton area and to grant him work-release privileges. (Case No. CR-3-97-71 at Doc. #34).
In any event, Klawonn has not established a basis for the "correction" of his sentence under § 2255, even if the Court did rely on misinformation from the Bureau of Prisons when imposing his sentence. It is well settled that not every piece of incorrect information can serve as a basis for a successful collateral attack on a sentence. In the context of sentencing, the Supreme Court recognized in United States v. Addonizio, 442 U.S. 178, 187 (1979), that a district court's reliance on "misinformation of constitutional magnitude" is required before relief is available under § 2255. The Supreme Court also cautioned 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." Id. A review of pertinent case law demonstrates that the alleged misinformation in the present case is not of a "constitutional magnitude."
In support of his Motion, Klawonn relies on two Supreme Court decisions, United States v. Tucker, 404 U.S. 443, 447 (1972), andTownsend v. Burke, 334 U.S. 736 (1948). These cases do stand for the proposition that a district court violates due process by relying on false assumptions when imposing a sentence. Upon review, however, the Court finds both cases to be inapposite. InTucker, the Supreme Court ordered re-sentencing because the trial court had considered invalid prior convictions when sentencing the defendant. Tucker, 404 U.S. at 447. Similarly, in Townsend, the Court ordered re-sentencing because the trial court had based its sentence on non-existent prior convictions. Townsend, 334 U.S. at 740-741. As the Eleventh Circuit noted in United States v. Dean, 752 F.2d 535 (11th Cir. 1985), both Tucker and Townsend involved a sentencing court's erroneous belief about a material fact (a defendant's prior criminal record), not an erroneous prediction about the occurrence of a future event over which the court had no control.
In contrast to Tucker and Townsend, when a district court imposes a sentence based on an erroneous belief or misinformation regarding the occurrence of a future event, § 2255 has been found to provide no relief, even if the misinformation frustrates the sentencing judge's subjective intent. In Addonizio, 442 U.S. at 186-187, the Supreme Court found no basis for a collateral attack on the defendant's sentence, even though the district court imposed the sentence based on an erroneous belief that the Parole Commission would release the defendant after he served one-third of his sentence. After sentencing, the Parole Commission changed its policies, and the defendant was required to serve more time than the district court had intended. Upon review, the Supreme Court explained that actions within the discretion of the Parole Commission did not affect the validity of the sentence. As noted,supra, the Court also reasoned that "there is no basis for enlarging the grounds for collateral attack to include claims based not on any objectively ascertainable error but on frustration of the subjective intent of the sentencing judge."Id. at 187; see also Id. at 190 (noting that a "judge has no enforceable expectations with respect to the actual release of a sentenced defendant short of his statutory term").
Similarly, in Dean, 752 F.2d at 535, the district court imposed a sentence based on erroneous information from a probation officer regarding the length of time that the defendant would be required to serve before being paroled. Id. at 538. Ultimately, the Parole Commission determined that the defendant would not be eligible for parole until much later than the sentencing judge had been led to believe. In response, the district court "modified" the defendant's sentence, reducing it to time served. Id. The Eleventh Circuit reversed the district court, relying on Addonizio and reasoning:
. . . A sentence is not "illegal" simply because the original sentencing judge mistakenly believed that the Parole Commission would release the defendant before the end of the defendant's full sentence. Whether the sentencing judge's belief was based on the judge's own knowledge of the parole system or on a prediction contained in the presentence report is irrelevant. The authority to determine whether a defendant will be released or paroled is vested in the Parole Commission, not the sentencing judge.Id. at 544.
Finally, in United States v. Taylor, 768 F.2d 114 (6th Cir. 1985), the district court initially imposed a seven-and-one-half year sentence on the defendant. Approximately two years later, the district court granted a Rule 35 motion and reduced the defendant's sentence to time served. The government filed a motion for reconsideration, contending that the district court lacked jurisdiction to grant the Rule 35 motion. The sentencing judge denied reconsideration, concluding that he possessed jurisdiction to entertain the Rule 35 motion and noting, alternatively, that "if I had felt I could not grant the Rule 35 motion with this kind of delay, I would not have imposed a seven-and-a-half year sentence in the first place." Id. at 116.
In Taylor, the Sixth Circuit noted that the pertinent analysis of a Rule 35 motion to correct or reduce a sentence is the same as the analysis employed when a defendant seeks the correction of a sentence under § 2255. Taylor, 768 F.2d at 119-120.
Upon review, the Sixth Circuit concluded that the district court lacked jurisdiction to grant the Rule 35 motion. The Taylor court also concluded that the defendant's sentence could not be "corrected" on the basis of the sentencing judge's statement that he would not have imposed it if he had known that it could not be modified. In reaching this conclusion, the Sixth Circuit relied onAddonizio for the proposition that relief under Rule 35 and § 2255 is appropriate when a district court imposes a sentence based on its consideration of an erroneous fact, such as the extent of a defendant's prior criminal record. Id. at 120-121. In its analysis, the Taylor court also found no meaningful distinction between cases such as Addonizio, in which post-sentencing changes in official parole policy frustrate a judge's sentencing intent, and cases in which a judge is provided with misinformation about parole policy as it exists at the time of sentencing. Id. at 120-121. Under either circumstance, the judge's subjective intent might be frustrated, but he lacks any "enforceable expectations" with respect to a defendant's release date, because that issue falls within the sole discretion of the Parole Commission.
The Taylor court recognized the principle that when a district court relies on materially false information at sentencing, a defendant's due process rights are violated.Taylor, 768 F.2d at 121. The Sixth Circuit noted, however, that this principle, which stems from the Supreme Court's pronouncements in Tucker and Townsend, has been applied to factual misinformation regarding a defendant's criminal record. Id., citing United States v. Williams, 668 F.2d 1064, 1072 (9th Cir. 1981) (finding a due process violation where the sentencing judge relied on allegedly inaccurate information regarding the defendant's participation in a prior assault).
Applied to the present case, the foregoing case law persuades the Court that Klawonn has not established a viable basis for the "correction" of his sentence. As noted above, the Court's recollection is that it intended and recommended that Klawonn would be permitted to work while serving his term of incarceration. The Court has no recollection, however, of the Bureau of Prisons ever committing itself to allowing Klawonn to engage in interstate travel while incarcerated. In any event, even if the Bureau of Prisons did represent to the Court that Klawonn would be permitted to travel out-of-state, such a representation provides no basis for relief under § 2255.
The Bureau of Prisons enjoys the sole discretion to grant work releases. See, e.g. Pugliese v. Nelson, 617 F.2d 916, 923-924 (2nd Cir. 1980); 18 U.S.C. § 3622. Consequently, the Court had no "enforceable expectation" that Klawonn would be permitted to engage in interstate travel, even if the Bureau did initially make such a representation. Just as the Parole Commission may change its early release policies at any time (despite a district court's reliance on existing policies at sentencing), the Bureau of Prisons remained free to reevaluate its position regarding Klawonn's ability to travel, despite any earlier representation made to the Court. Even if the Bureau of Prisons actually misinformed the Court regarding its inmate travel policies at the time of sentencing, § 2255 provides no basis for relief. As set forth above, the Sixth Circuit has found no meaningful distinction between a sentencing court's reliance on existing policies that are subject to change at any time, and a sentencing court's reliance on misinformation regarding the same policies as they actually existed at the time of sentencing.Taylor, 768 F.2d at 120-121. In either case, the judge's "subjective intent" may be frustrated, but he lacks an "enforceable expectation" regarding the content of those policies. As a result, regardless of what the Bureau of Prisons may or may not have stated at the time of Klawonn's sentencing, the Court discerns no basis for "correcting" his sentence pursuant to § 2255. Accordingly, his Motion for Correction of Sentence (Doc. #37-2) will be overruled.
18 U.S.C.A. § 3622 provides:
The Bureau of Prisons may release a prisoner from the place of his imprisonment for a limited period if such release appears to be consistent with the purpose for which the sentence was imposed and any pertinent policy statement issued by the Sentencing Commission pursuant to 28 U.S.C. § 994(a)(2), if such release otherwise appears to be consistent with the public interest and if there is reasonable cause to believe that a prisoner will honor the trust to be imposed in him, by authorizing him, under prescribed conditions, to —
(a) visit a designated place for a period not to exceed thirty days, and then return to the same or another facility, for the purpose of —
(1) visiting a relative who is dying;
(2) attending a funeral of a relative;
(3) obtaining medical treatment not otherwise available;
(4) contacting a prospective employer;
(5) establishing or reestablishing family or community ties; or
(6) engaging in any other significant activity consistent with the public interest;
(b) participate in a training or educational program in the community while continuing in official detention at the prison facility; or
(c) work at paid employment in the community while continuing in official detention at the penal or correctional facility if —
(1) the rates of pay and other conditions of employment will not be less than those paid or provided for work of a similar nature in the community; and
(2) the prisoner agrees to pay to the Bureau such costs incident to official detention as the Bureau finds appropriate and reasonable under all the circumstances, such costs to be collected by the Bureau and deposited in the Treasury to the credit of the appropriation available for such costs at the time such collections are made.
Parenthetically, the Court also notes that Klawonn has no constitutionally protected interest or right in obtaining work release. See, e.g., Pugliese, 617 F.2d at 923 n. 6.
II. Conclusion
Based on the reasoning and citation of authority set forth above, the Petitioner's Motion to Withdraw Guilty Plea (Doc. #37-1) is overruled. The Petitioner's alternative Motion for Correction of Sentence (Doc. #37-2) is overruled. The Court will defer execution of the Petitioner's previously imposed sentence for an additional forty-five days from date.
Counsel listed below will take note that a telephone conference call has been set for 8:40 a.m., on Wednesday, April 5, 2000, to discuss the possibility of Klawonn working, to a limited degree, while serving his sentence at Alvis House.
In a Memorandum filed in connection with Klawonn's criminal case, the Government has represented that the Bureau of Prisons may allow him to travel out-of-state. (Case No. CR-3-97-71, Doc. #38 at 2-4).
March 20, 2000