Unpublished Disposition, 855 F.2d 863 (9th Cir. 1987)

No. 87-3173.

United States Court of Appeals, Ninth Circuit.

Before KOZINSKI, NOONAN and DAVID R. THOMPSON, Circuit Judges

MEMORANDUM^* 

Gilbert Roetman appeals from the district court's denial of his motion for reconsideration of its order denying him a reduction of his sentence. Roetman contends that his sentence should have been reduced because the United States Parole Commission did not provide for consideration that his sentence, imposed pursuant to 18 U.S.C. § 4205(b) (2), did not require him to serve one-third of his term before becoming eligible for parole. We affirm.

FACTS

Roetman was indicted for uttering a counterfeit cashier's check in violation of 18 U.S.C. § 493. He entered a guilty plea to the charge. On April 3, 1987, the district court imposed a sentence of four years imprisonment, pursuant to 18 U.S.C. § 4205(b) (2). On July 30, 1987, Roetman filed a motion for reduction of sentence under Criminal Rule 35. Fed. R. Crim. P. 35. The district court denied the motion. Roetman then filed a motion for reconsideration of the denial. The district court denied the motion for reconsideration. Roetman filed a timely notice of appeal.

ANALYSIS

Roetman contends that the district court erred by not reducing his sentence because the Parole Commission did not provide for consideration that his sentence, imposed pursuant to 18 U.S.C. § 4205(b) (2), did not require him to serve one-third of this term before becoming eligible for parole. Sentencing is left to the sound discretion of the district court. United States v. Salas, 824 F.2d 751, 753 (9th Cir.), cert. denied, --- U.S. ----, 108 S. Ct. 465 (1987). Sentencing that is within statutory limits is generally not reviewable unless constitutional concerns exist; however, whether a sentence imposed is illegal is a question of law reviewed de novo. Id.

Under 18 U.S.C. § 4205, a district court judge has three options at the time of sentencing: (1) to sentence for a definite term of more than one year, in which case the prisoner is eligible for parole after serving one-third of the term, 18 U.S.C. § 4205(a); (2) to prescribe a minimum term after which the prisoner is eligible for parole, "which term may be less than but shall not be more than one-third of the maximum sentence imposed by the court, 18 U.S.C. § 4205(b) (1); or (3) to fix a maximum term of imprisonment and "specify that the prisoner may be released on parole at such time as the Commission may determine," 18 U.S.C. § 4205(b) (2). See generally 3 C. Wright, Federal Practice & Procedure Sec. 536 at 183-84 (2d ed. 1982).

Factors considered by the Parole Commission in deciding when to release a prisoner on parole include whether the prisoner has substantially observed the rules of the institution to which he has been confined, the nature of the offense, and the history and characteristics of the offender. 18 U.S.C. § 4206(a); 28 C.F.R. Sec. 2.18. The Parole Commission has also established regulatory guidelines that indicate the customary range of time to be served before release. 28 C.F.R. Sec. 2.20 et seq. The purpose of the guidelines is to promote a more consistent exercise of discretion and enable fairer, more accurate decision-making without removing individual case consideration. 28 C.F.R. Sec. 2.20(c). Under these guidelines, the estimated time range for Roetman's period of incarceration was calculated by the probation officer to be 26 to 34 months.

Roetman argues that because the guidelines do not provide for any consideration that his sentence was imposed pursuant to 18 U.S.C. § 4205(b) (2), the guidelines conflict with the statute. The statute, however, does not require offenders sentenced under 18 U.S.C. § 4205(b) (2) to be afforded any special consideration. The statute only specifies that the prisoner "may be released on parole at such time as the Commission may determine." 18 U.S.C. § 4205(b) (2).¹  The legislative history of the statute reveals an intent not to afford special treatment to prisoners sentenced under 18 U.S.C. § 4205(b) (2): "The standards and criteria for parole release are to be made the same for all federal prisoners without regard to which of the three main sentencing alternatives is utilized by the court." S.Rep. No. 369, 94th Cong., 2d Sess. 18, reprinted in 1975 U.S.Code Cong. & Admin. News 335, 340. The Parole Commission's guidelines do not conflict with any requirements of 18 U.S.C. § 4205(b) (2).

Roetman also argues that the sentencing judge's intent regarding when Roetman would be released on parole has been frustrated by the Parole Commission's use of its regulatory guidelines of time ranges for parole release dates.²  The statute directs that the prisoner will be released "at such time as the Parole Commission shall determine." 18 U.S.C. § 4205 (emphasis added). A judge's subjective intent regarding a prisoner's release date, therefore, is not determinative:

... the judge has no enforceable expectations with respect to the actual release of a sentenced defendant short of his statutory term. The judge may well have expectations as to when release is likely. But the actual decision is not his to make, either at the time of sentencing or later if his expectations are not met. To require the Parole Commission to act in accordance with judicial expectations ... would substantially undermine the congressional decision to entrust release determinations to the Commission and not the courts.

United States v. Addonizio, 442 U.S. 178, 190 (1979); see also Petrone v. Kaslow, 603 F.2d 779, 780 (9th Cir. 1979) (relying on Addonizio; "both (b) (2) prisoners and those with statutory minimum periods of incarceration receive the same treatment in being considered for parole").

The district court did not err in denying Roetman's motion for reduction of sentence or his motion for reconsideration of the denial.

AFFIRMED.