The opinion of the court was delivered by: COOLAHAN
COOLAHAN, Senior District Judge.
Defendants, William and Howard Silverman, move pursuant to Rule 35, Federal Rules of Criminal Procedure, or in the alternative, pursuant to 28 U.S.C. § 2255, to correct, vacate, or set aside their sentences. Both defendants were found guilty of conspiring to transport stolen securities, valued in excess of $100,000, in interstate commerce in violation of 18 U.S.C. § 371.
At oral argument, this Court dismissed Howard Silverman's motion because it was predicated on the false assumption that he was sentenced under 18 U.S.C. § 4208(a)(2).
The transcript of the sentence hearing makes clear that on January 26, 1973 Judge Garth sentenced Howard Silverman to a term of two years' imprisonment
under 18 U.S.C. § 4082(a).
On the same day, Judge Garth sentenced Howard's father, William Silverman,
to three years' imprisonment under 18 U.S.C. § 4208(a)(2).
Therefore, this Court must now decide only William Silverman's motion.
The Regional Directors reviewed his file, but they did not give him another in-person hearing. After reviewing defendant's records, the Regional Directors decided to apply the "Guidelines for Decisionmaking," 28 C.F.R. § 2.20 (1974), which were subsequently amended, 40 Fed.Reg. 10976 (March 10, 1975), to the defendant's case. Parole was thereby denied and the defendant was to be continued to the expiration of his sentence. The Board also provided that he would be reconsidered for parole by a file review of his record at the one-third point of his sentence.
The hearing examiners decided at the one-third point file review hearing to reclassify defendant as a case of original jurisdiction. They arrived at their decision after having considered an updated "progress report" prepared by the defendant at F.C.I. Danbury and defendant's records. Since the defendant was classified as a case of original jurisdiction, his files were sent in July of 1975 to the Regional Directors, who reviewed the records and affirmed their original decision to continue William Silverman to the expiration of his sentence.
Defendant contends that when the district court sentenced him pursuant to 18 U.S.C. § 4208(a)(2), "it was laboring under a material mistake of fact regarding the parole implications of the sentence" (defendant's brief, p. 7). He argues that Judge Garth, the sentencing judge, intended that he be given serious parole consideration based on his institutional performance. Yet, because of the subsequent and unanticipated adoption of the "Guidelines for Decisionmaking," 28 C.F.R. § 2.20 (1974), as amended, 40 Fed.Reg. 10976 (March 10, 1975) (hereinafter Guidelines), the defendant was effectively sentenced to spend his full term in confinement. William Silverman further contends that because he did not receive the parole consideration that Judge Garth had intended he receive, his sentence was illegal and should therefore be vacated.
If defendant Silverman's sentence is not illegal within the definition of Rule 35, this Court does not have jurisdiction under that rule to entertain an application to correct or vacate the sentence. Under Rule 35,
this Court may not consider a motion to reduce a sentence, nor may it consider a motion to correct a sentence imposed in an illegal manner unless such motion is made within 120 days of the imposition of sentence. Therefore, this Court must determine if Judge Garth's expectations about William Silverman's parole possibilities were so substantially frustrated by the use of the Guidelines as to rise to the level of illegality as that term has been employed in Rule 35 cases.
Defendant also alleges that this Court has jurisdiction under 28 U.S.C. § 2255 to entertain an application to correct or vacate his sentence. This Court has jurisdiction under 28 U.S.C. § 2255 to correct or vacate a sentence only if 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 . . . "
William Silverman claims that when the Parole Board applied the Guidelines to his case, it denied him his statutory right to serious parole consideration. He also contends that since he was not permitted an in-person hearing before the Regional Directors of the Board, he was denied an opportunity to present effectively his institutional performance for their consideration. This deprivation, he avers, was contrary to both the legislative intent in enacting § 4208(a)(2) and the judicial intent in sentencing him under § 4208(a)(2).
This Court has jurisdiction to determine whether Judge Garth's expectations about defendant's parole possibilities were frustrated and, if so, whether the frustration of his expectations constitutes illegality under Rule 35, or whether the defendant has suffered a deprivation of federal rights so as to confer upon this Court jurisdiction under § 2255 to correct or set aside defendant's sentence.
When a judge sentences a defendant, he should take into consideration the defendant's parole possibilities. The United States Supreme Court in Morrissey v. Brewer, 408 U.S. 471, 477, 92 S. Ct. 2593, 2598, 33 L. Ed. 2d 484, 492 (1972), noted the significance of parole considerations in the sentencing process in these terms:
"During the past 60 years, the practice of releasing prisoners on parole before the end of their sentences has become an integral part of the penological system. . . . Rather than being an ad hoc exercise of clemency, parole is an established variation on imprisonment of convicted criminals. Its purpose is to help individuals reintegrate into society as constructive individuals as soon as they are able, without being confined for the full term of the sentence imposed."
It is obvious that Judge Garth did consider the defendant's parole possibilities.
It is impossible to say what Judge Garth's expectations were with regard to parole when he sentenced William Silverman. We do know, however, that Judge Garth wanted to allow the Parole Board to have the greatest flexibility and discretion possible in determining petitioner's parole eligibility. He made that clear when he said:
It is true, though, that Judge Garth might have had the reasonable expectation that William Silverman would be given more favorable treatment under § 4208(a)(2) than under any other sentencing provision.
This can be demonstrated by comparing the sentencing alternatives left open to a sentencing judge. Depending upon which sentencing statute he selects, the judge can determine when the Board of Parole may first consider the defendant for parole. If the judge sentences a defendant under 18 U.S.C. § 4202,
the defendant will only be eligible for release on parole after he has spent one-third of his sentence in confinement. Under 18 U.S.C. § 4208(a)(1),
the judge can designate the minimum term of imprisonment that the defendant must serve before he would become eligible for release. However, 18 U.S.C. § 4208(a)(2) provides that the defendant will become immediately eligible for parole. This latter section grants to the Board the widest latitude in determining when a defendant should become eligible for release on parole. See, Grasso v. Norton (II), 520 F.2d 27, 28-29 (2d Cir. 1975); 505 F.2d 1212 (7th Cir. 1974). It is reasonable, therefore, to assume that a judge who sentences a defendant under § 4208(a)(2) intends that the Board of Parole be given the widest latitude to determine parole eligibility. This is exactly what Judge Garth stated he wanted to do. He never said that he wanted the defendant to be paroled early; he left that for the Board to determine.
Defendant contends, and this Court agrees, that it is also fair to assume that when Judge Garth sentenced him under § 4208(a)(2), Judge Garth anticipated that the defendant would be given meaningful consideration for parole. Defendant refers this Court to Grasso v. Norton (II), supra, at 33, where the Second Circuit found:
"The decision of the sentencing judge to impose an (a)(2) sentence, beside relieving a defendant from the restriction placed on eligibility for parole by Section 4202, is an expression of the court's expectations (1) that serious and meaningful parole consideration will be given to the prisoner by the Parole Board at an earlier date than the one-third point of his sentence permitted by 18 U.S.C. § 4202; and (2) that institutional performances and response to rehabilitative programs will be given due effect by the Parole Board in determining whether parole should be granted.
These expectations are in accord with the purposes of Section 4208(a)(2), as indicated by its legislative history and in the context of the statutory scheme of which it is a part. It is also in accord with the views expressed in texts and guides available to Federal Judges on the subject of sentencing, which are thoroughly discussed in Garafola [v. Benson], supra, 505 F.2d at 1218."
The Second Circuit's finding that § 4208(a)(2) required meaningful parole consideration was based on the findings of the Seventh Circuit in Garafola v. Benson, 505 F.2d 1212, 1218-19 (7th Cir. 1974), where the court stated:
Judge Garth, this Court is sure, knew what the Congress intended when it passed § 4208(a)(2), and he knew that judges are required to consider parole release possibilities when sentencing. When he sentenced the defendant under § 4208(a)(2), he stated that he was not in a position to determine William Silverman's parole possibilities. He therefore left that determination to the Board. As under all sentencing provisions, Judge Garth expected that the defendant would receive serious parole consideration, but unlike other sentencing statutes, he expected that the defendant would receive early parole consideration under § 4208(a)(2).
The Board, however, does give both early and meaningful consideration to prisoners under § 4208(a)(2). Usually, within three months after a defendant commences serving his sentence, he is considered for parole. He is provided with an in-person hearing at that stage. This same procedure was followed in William Silverman's case. However, defendant contends that when the Board applied the Guidelines to determine when he might be released, it failed to take into account his institutional performance. He also claims that after only three months of confinement he was not in a position to demonstrate his "exceptional" institutional adjustment ...