ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA.
Weis, Sloviter and Becker, Circuit Judges Weis, Circuit Judge, concurring.
This appeal presents the question whether the application of United States Parole Commission guidelines promulgated in 1979 to an individual convicted of offenses committed between 1967 and 1974, when a prior set of guidelines was in effect, violates the ex post facto clause of the United States Constitution.*fn1 Subsumed within this determination is the question whether the guidelines constitute "laws" within the meaning of the ex post facto clause. The district court, relying on our opinion in Geraghty v. United States Parole Commission, 579 F.2d 238 (3d Cir. 1978), vacated and remanded on other grounds, 445 U.S. 388, 100 S. Ct. 1202, 63 L. Ed. 2d 479 (1980),*fn2 held that the guidelines constitute "laws" for ex post facto purposes and that their application in this case violated the ex post facto clause. The Parole Commission, noting the Supreme Court's vacatur of Geraghty, argues that Geraghty no longer stands as controlling precedent and that this Court should follow the other courts of appeals that have held that the guidelines do not constitute "laws."
We reject the Commission's contentions and will reaffirm Geraghty's holding that the retroactive application of parole guidelines may constitute a violation of the ex post facto clause. Geraghty did not definitively decide the matter, however, because we there regarded as a factual issue the predicate question whether, in terms of the Parole Commission's actual practice, the guidelines have the effect of "laws" on the Commission's decisionmaking or whether they constitute mere guideposts facilitating the exercise of the Commission's discretion to establish presumptive parole dates for incarcerated offenders. We therefore remanded in Geraghty so that the district court could make the requisite findings of fact as to the operation of the guidelines. In reaffirming Geraghty, we again adopt that approach. Because the district court, notwithstanding its reliance on Geraghty, did not make findings as to the role of discretion in decisionmaking under the guidelines, we will vacate the judgment of the district court and remand the case so that such findings may be made.
I. Factual and Procedural Background
Appellee Lawrence Forman and his associate Lester Genser were, from 1957 until early 1973, the president and vice president, respectively, of Genser-Forman, Inc., which was at the time the sole distributor in the northeastern United States of Triumph automobiles and parts for British Leyland Motors, Inc. On April 13, 1976, a federal grand jury indicted Forman and Genser for violating 18 U.S.C. § 371 (1976) and 26 U.S.C. §§ 7201 and 7206(1) (1976) (amended 1982). The indictment alleged that the two men had conspired to evade, and did evade, more than $2,000,000 in corporate and personal income tax by subscribing to tax returns that understated both gross corporate profits and personal income. On September 30, 1976, a jury returned a verdict of guilty on all counts of the indictment; on November 11, 1976, the trial judge sentenced Forman and Genser*fn3 each to an eight-year "regular adult" term of imprisonment. This Court affirmed the convictions, United States v. Genser, 582 F.2d 292 (3d Cir. 1978); 595 F.2d 146 (3d Cir. 1979); 602 F.2d 69 (3d Cir.), cert. denied, 444 U.S. 928, 100 S. Ct. 269, 62 L. Ed. 2d 185 (1979), and Forman entered Allenwood Federal Prison Camp on November 5, 1979.
On February 5, 1980, Forman received his initial parole hearing, the purpose of which was to determine his "presumptive release date," i.e., the date on which Forman presumably would be released on parole from Allenwood.*fn4 To make this prediction, the Parole Commission applied its Adult Guidelines for Parole Decision making ("parole guidelines") promulgated in 1979, see 28 C.F.R. § 2.20(1979),*fn5 and eventually set November 5, 1982 -- thirty-six months from the date on which Forman entered prison -- as his presumptive parole date. The Regional Commissioner also sent to Forman a Notice of Action, dated February 27, 1980, which stated:
Your offense behavior has been rated as Greatest I severity because the amount of tax liability exceeded $500,000. You have a salient factor score of 11. You have been in custody a total of 3 months. Guidelines established by the commission for adult cases which consider the above factors indicate a range of 40-52 months to be served before release for cases with good institutional program performance and adjustment. After review of all relevant factors and information presented, a decision below the guidelines appears warranted because: the following circumstances are present: You have already repaid the government the outstanding taxes and penalty representing triple damages and in addition have satisfied your committed fine.
Forman appealed the decision to the Commission's National Appeals Board, which upheld the Regional Commissioner on October 7, 1980.
On April 29, 1981, Forman filed a petition in the District Court for the Middle District of Pennsylvania for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 (1976). The petition raised the claim, inter alia, that the Parole Commission had violated the ex post facto clause in using the 1979 parole guidelines instead of those in effect at the time of Forman's sentencing in November 1976.*fn6 United States ex rel. Forman v. McCall, No. 81-0553, slip at 1 (M.D. Pa. Oct. 9, 1981). The matter initially was referred to a United States Magistrate, who recommended that the writ of habeas corpus be denied. United States ex rel. Forman v. McCall, No. 81-0553 (M.D. Pa. June 30, 1981) (Report of Magistrate). The district judge, however, rejected the magistrate's ruling, held that the application of the 1979 guidelines to Forman violated the ex post facto clause, and ordered the Commission to afford Forman a new parole hearing to be conducted in accordance with the guidelines in effect at the time of the 1976 sentencing.*fn7
On November 30, 1981, Forman received the new parole hearing ordered by the district court. After several levels of administrative review, the National Appeals Board advanced Forman's presumptive release date from November 5, 1982, to June 25, 1982, thereby reducing the time to be served from thirty-six to approximately thirty-two months.*fn8 Forman was released on parole from Allenwood as scheduled, on June 25, 1982, after signing a Certificate of Parole noting that the early release was being granted solely to comply with the district court's order. The Certificate reserved to the Commission the right to reincarcerate Forman should this Court reverse or vacate the district court's judgment.*fn9
The Commission has appealed from the district court's judgment, contending (1) that the court erred as a matter of law in selecting the date of sentencing, rather than the date of the offense, as the focal point of ex post facto analysis, and (2) that the ex post facto clause does not bar the application to a convicted offender of parole guidelines promulgated after the date of the relevant offense. We address these contentions in turn.
II. The Focal Point of Ex Post Facto Analysis: Date of Sentencing or Date of Offense ?
It is a fundamental principle of ex post facto jurisprudence that a court entertaining an ex post facto claim must focus upon the law in effect at the time of the offense for which a person is being punished. See, e.g., Weaver v. Graham, 450 U.S. 24, 25, 67 L. Ed. 2d 17, 101 S. Ct. 960 (1981); Welsh v. Mizell, 668 F.2d 328, 330 (7th Cir.), cert. denied, 459 U.S. 923, 103 S. Ct. 235, 74 L. Ed. 2d 186 (1982); Hayward v. United States Parole Commission, 659 F.2d 857, 862 (8th Cir. 1981), cert. denied, 456 U.S. 935, 72 L. Ed. 2d 454, 102 S. Ct. 1991 (1982); Rodriguez v. United States Parole Commission, 594 F.2d 170, 175 n.6 (7th Cir. 1979). Indeed, to the extent that the prohibition against ex post facto laws represents the vehicle by which "the Framers sought to assure that legislative Acts give fair warning of their effect and permit individuals to rely on their ...