Opinion
Civil No. 2:02-CV-317J, Crim. No. 2:92-CR-36A
February 14, 2003
ORDER
On April 17, 2002, petitioner Abe Lehi filed his motion pursuant to Fed.R.Crim.P. 36 in United States of America v. Abe Lehi, Case No. 2:92-CR-36A (D. Utah). The court also treated the motion as one arising under 28 U.S.C.A. § 2255 (2000), commencing the above-captioned proceeding. On July 11, 2002, the Government filed a response. The matter was heard by the court on August 23, 2002, with Richard N.W. Lambert, Assistant United States Attorney, appearing for the Government, and Abe Lehi, appearing pro se by telephone.
As explained below, Mr. Lehi's motion raises constitutional challenges to his sentence that reach beyond the scope of "clerical error" contemplated by Fed.R.Crim.P. 36. Construing his moving papers liberally in Mr. Lehi's favor as a pro se litigant, a 28 U.S.C. § 2255 motion to vacate, reduce or correct his sentence appeared to be the most suitable procedural vehicle for his constitutional claims.
On August 24, 1993, this court, the Honorable Aldon J. Anderson presiding, sentenced Mr. Lehi to serve a sentence of 365 months of imprisonment on Counts III, IV, XII and XIII of the Superseding Indictment pursuant to the federal sentencing guidelines, and a sentence of 30 years of imprisonment on Count VI, a pre-guidelines count, to be served consecutively to the sentence on Counts III, IV, XII and XIII. ( See Judgment, filed August 25, 1993 (dkt. no. 48), United States of America v. Abe Lehi, Case No. 2:92-CR-36A (D. Utah).)
Mr. Lehi's motion raises several questions concerning his sentence and the Judgment entered by the court as reflecting that sentence: (1) he argues that his total sentence constitutes cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution, as well as a denial of due process and equal protection under the Fifth Amendment; (2) he asks whether the Judgment should reflect that his "pre-guidelines" sentence on Count VI began running as of the same date as his "guidelines" sentence, January 13, 1992; and (3) he asserts that the Judgment should be amended to reflect whether or not he was sentenced on Count VI pursuant to 18 U.S.C. § 4205(b)(1) (1982) (repealed).
Petitioner cites no authority for his constitutional claims, and the court finds nothing in his moving papers or the applicable body of law to support the conclusion that the sentence imposed upon Mr. Lehi for the offenses to which he entered a plea of guilty — crimes involving multiple acts of sexual abuse of minor children — so oppressive and disproportionate in relation to his admitted criminal conduct as to constitute cruel and unusual punishment. Nor does he make any colorable showing of a denial of due process or of equal protection, whether based upon his indigence, or otherwise.
Petitioner raises a more substantive question concerning whether his "pre-guidelines" sentence was imposed pursuant to former 18 U.S.C. § 4205(b)(1):
(b) Upon entering a judgment of conviction, the court having jurisdiction to impose sentence, when in its opinion the ends of justice and best interest of the public require that the defendant be sentenced to imprisonment for a term exceeding one year, may
(1) designate in the sentence of imprisonment imposed a minimum term at the expiration of which the prisoner shall become 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, . . .
Absent such a designation of a minimum term, the petitioner's eligibility for parole on his "pre-guidelines" sentence would be governed by former 18 U.S.C. § 4205(a):
(a) Whenever confined and serving a definite term or terms of more than one year, a prisoner shall be eligible for release on parole after serving one-third of such term or terms or after serving ten years of a life sentence or of a sentence of over thirty years, except to the extent otherwise provided by law.
18 U.S.C. § 4205(a) (1982) (repealed).
At the time of sentencing, there was some indication that the sentence imposed upon petitioner on Count VI was intended to be a minimum term of thirty years imprisonment before eligibility for parole under § 4205(b)(1), but the court imposed no maximum term of imprisonment as would be required for a minimum term designation under § 4205(b)(1) to be effective. See generally, United States v. Tidmore, 893 F.2d 1209 (11th Cir. 1990); United States v. Berryhill, 880 F.2d 275 (10th Cir. 1989); United States v. Kinslow, 860 F.2d 963 (9th Cir. 1988). Consequently, the general rule found in § 4205(a) would apply, and petitioner would become eligible for parole after serving one-third of his thirty-year sentence on Count VI, or ten years.
The written Judgment recites that Mr. Lehi was sentenced on Count VI "pursuant to Title 18 U.S.C. [§] 4205(b)(1)." (Amended Judgment, filed August 25, 1993 (dkt. no. 48), United States of America v. Abe Lehi, Case No. 2:92-CR-36A.) Neverthless, the court's judgment and the petitioner's sentence is the sentence imposed in open court, on the record; the written judgment entered in the record simply memorializes the sentence imposed, and cannot alter or amend it. See United States v. Villano, 816 F.2d 1448, 1450-54 (10th Cir. 1987) (en banc) (an orally pronounced sentence controls over a judgment and commitment order when the two conflict). The Government acknowledges that based upon the record in United States of America v. Abe Lehi as it exists, the petitioner's thirty-year "pre-guidelines" sentence on Count VI is governed by 18 U.S.C. § 4205(a), and notby 18 U.S.C. § 4205(b)(1).
Finally, the record of petitioner's sentencing remains clear concerning the consecutive nature of his sentences:
THE COURT: . . . On counts three, four, 12 and 13 he is sentenced to 365 months. Count six he is sentenced for 30 years to be consecutive to counts three, four, 12 and 13 . . . .
MR. McPHEE: Did the Court mean he is to do 365 and then 30?
THE COURT: Consecutive means following.
(Transcript of Hearing, dated August 24, 1993, at 14:19-22, 15:14-16.)
Mr. Lehi's "pre-guidelines" sentence on Count VI commences to run at the conclusion of his 365-month "guidelines" sentence on the remaining counts.
IT IS ORDERED that given the acknowledgment that petitioner's eligibility for parole under his consecutive "pre-guidelines" sentence of thirty years of imprisonment on Count VI of the Superseding Indictment is governed by 18 U.S.C. § 4205(a) (repealed), and not 18 U.S.C. § 4205(b)(1) (repealed), correction of the Judgment in United States of America v. Abe Lehi, Case No. 2:92-CR-36A, is warranted pursuant to Fed.R.Crim.P. 36, and Mr. Lehi's motion is GRANTED to that extent; the reference in the Judgment to sentencing on Count VI is hereby corrected to read "pursuant to Title 18 U.S.C. § 4205(a)"; in all other respects, his motion is DENIED.