APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (D.C. Criminal No. 323-72.
Forman, Rosenn and Garth, Circuit Judges.
In this appeal we are called upon to review the question which we had previously - and, as now appears, erroneously - stated should need no review.
In United States v. Salerno, (Appeal of William Silverman), (hereinafter " Silverman I "), 538 F.2d 1005 (3d Cir. 1976), Judge Rosenn, writing for this Court, held: (1) that 28 U.S.C. § 2255 provides jurisdiction to challenge a sentence imposed under 18 U.S.C. § 4208(a)(2) prior to the adoption of the 1973 Parole Guidelines,*fn1 when the intent of the sentencing judge is frustrated by the application of those guidelines; and (2) that because the intent of Silverman's sentencing judge was thwarted by the implementation of the guidelines, Silverman's original sentence could be modified.
In Silverman's case the intent of the original sentencing judge (who was no longer a member of the district court when Silverman sought resentencing) could be ascertained only by interpreting and construing the sentencing colloquy appearing in the sentencing transcript. Forecasting that such a circumstance - unavailability of the original sentencing judge - would be a rare one, Judge Rosenn wrote:
We do not believe that our holding will seriously burden either the district court or this court. Where the motion to vacate sentence can be directed to the sentencing judge, the question whether his sentencing expectations have been frustrated is easily resolved and there should be no need for review of that decision in the Court of Appeals. In the rare case, as here, when the original sentencing judge is no longer on a district court bench, and the record convincingly shows by the statement of the trial judge at sentencing that he intended to have the defendant receive meaningful parole consideration, then we believe that resentencing should be required. [emphasis supplied.]
Silverman I, 538 F.2d at 1009.
We now face the very circumstance foreseen by Judge Rosenn where the district court judge who (1) sentenced the defendant Ponzio on May 21, 1973, (2) was informed of the "new" Parole Guidelines, (3) found his original intent to have been frustrated by those guidelines, and (4) vacated the sentence under authority of Silverman. Believing that the original sentencing judge is in the best position to know his own intent and that his determination of that intent is conclusive, we affirm the order of the district court reducing Ponzio's sentence. In so doing, however, we do not relax or depart from the narrow holding of Silverman as interpreted by the same panel of this Court which denied rehearing in Silverman II.*fn2
On March 8, 1973, appellee Ponzio was convicted with others of various counts of an indictment which, among other things, charged Ponzio with acts of extortion in violation of 18 U.S.C. § 1951 (The Hobbs Act) and § 1952 (The Travel Act).
On May 21, 1973, Ponzio was sentenced on Count I (conspiracy to violate The Hobbs Act) to prison for a term of six years
Judgment of Sentence, May 21, 1973.
His conviction on 15 other counts resulted in terms of five year imprisonment on each count, concurrent with each other count, and concurrent with the sentence imposed on Count I. In sum, therefore, although Ponzio faced a total term in prison of six years, the Parole Board had the discretion to release him on parole at any time.
Ponzio's conviction was affirmed by this Court on May 31, 1974, United States v. Somers, 496 F.2d 723 (3d Cir.), cert. denied, 419 U.S. 832, 42 L. Ed. 2d 58, 95 S. Ct. 56 (1974).*fn3 As noted, the Supreme Court of the United States denied certiorari on October 15, 1974.
On November 19, 1974, Ponzio commenced serving his sentence and, thereafter, pursuant to a timely motion under Rule 35, F.R. Crim. P., made application for reduction of his sentence. On January 13, 1975, the judge who originally sentenced ...