The opinion of the court was delivered by: BIUNNO
Quinones was convicted, after jury trial, on charges of armed bank robbery, 18 U.S.C. § 2113(a) and (d), and as a principal for aiding and abetting, 18 U.S.C. § 2. The robbery occurred March 16, 1977 at the Hudson United Bank, in Union City, N.J., and involved more than $ 26,000.
A general sentence of 24 years was imposed August 3, 1979, to be consecutive to the 25 year sentence imposed in the U.S. District Court for the Eastern District of New York, Crim. 77-54 (involving an armed bank robbery of the Barclay Bank of New York, on January 3, 1977 for nearly $ 12,000), and concurrent with a 21 year sentence for first degree robbery, attempted assault (first degree) and criminal possession of a dangerous weapon, imposed in Kings County (N.Y.) Supreme Court on August 29, 1978. This robbery had occurred June 30, 1975.
Quinones was 18 at the time of the New York robbery in 1975, he was a few weeks short of age 20 at the time of the Barclay Bank robbery in Brooklyn, and a few months over age 20 at the time of the Hudson United Bank robbery in Union City, N.J.
Following appeal from his conviction here, a judgment order in lieu of mandate on affirmance was issued March 7, 1980 and filed in this court March 11, 1980. The Supreme Court of the United States denied petition for certiorari on June 2, 1980.
The motion was noticed for a regular argument day, and upon being made aware of it, the court entered an order noting that under F.R.Crim.P. 47, motions in criminal cases are to be in writing and may be supported by affidavit (other than motions during a trial on hearing) unless the court permits it to be made orally. The parties were directed to make written submissions without oral argument. On the civil side, see F.R.Civ.P. 7(b)(1) and 78.
On October 9, 1980, Quinones' attorney submitted his affidavit providing as exhibits an institutional report of the Bureau of Prisons dated September 25, 1980, a statement of the Chaplain at Oxford Correctional Institution, a certificate of the Universal Life Church, Inc. dated November 14, 1979 that Quinones was ordained that day, and a copy of Mr. Quinones' card credentials that he had been ordained.
The submitting affidavit argues that "the frequency of any negative interaction" between Mr. Quinones and prison staff had been reduced to virtually none, with only three negative incidents since December, 1977 and none during the past 8 months (i. e., since January 25, 1980). It is claimed that his relationship since then has been "excellent", and he is described as having "a very positive attitude". In light of this, it is urged that the adjustment being made indicates clearly that Mr. Quinones is subject to successful rehabilitation warranting reduction of the sentence previously imposed.
A later letter, sent to the court in chambers rather than filed, verifies that Mr. Quinones had been discharged from probation on the Kings County (N.Y.) matter on July 16, 1979, and that this had been already reported to the court before sentence.
The United States filed a statement in lieu of brief in which the position taken was that the sentence imposed was appropriate, and should not be reduced.
The obvious question at the start is whether good institutional behavior after sentence is a factor the sentencing court may properly consider on a Rule 35 motion to reduce sentence.
There was a line of cases in the Third Circuit in which institutional behavior was collaterally considered. That line ran from U. S. v. Salerno, Appeal of Silverman, 538 F.2d 1005 (CA3, 1976), reh. den. 542 F.2d 628 (CA3, 1976), to Addonizio v. U. S., 573 F.2d 147 (CA3, 1978). This history is reviewed in detail in U. S. v. Whelan and Flaherty, 456 F. Supp. 744 (D.N.J.1978).
In any event, that line involved cases, not under Rule 35, but under 28 U.S.C. § 2255, in which the prisoner contended that the sentencing expectations of the trial judge had been "frustrated" by the action of the Parole Commission denying parole after the convict had served as much or more of the total sentence as the trial judge had expected. Institutional behavior was a collateral factor in this line of cases since a prisoner with a history of institutional misconduct could not rationally expect to support the theory of these § 2255 cases. Those cases, of course, were roundabout attempts to challenge Parole Commission decisions which are open to judicial review under 28 U.S.C. § 2241, and are proceedings to be brought in that District where the prison is located and where the records are, in contrast to the design for § 2255 motions which are to be brought in ...