argued as amended april 3 1978.: January 12, 1978.
Appeal from the United States District Court for the District of New Jersey (D.C. Civil No. 76-2048); Appeal from the United States District Court for the District of New Jersey (D.C. Civil No. 76-2220); Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Cvil No. 77-373).
Aldisert and Hunter, Circuit Judges, and Cahn, District Judge.*fn*
These appeals require us to examine again the propriety of post-sentencing relief under 28 U.S.C. § 2255*fn1 by a sentencing court upon a showing that the sentencing by a sentencing court upon a showing that the sentencing judge's expectations were frustrated by subsequent changes in criteria considered by the Parole Commission granting or denying release. See 39 Fed. Reg. 20028-39 (1974), now codified as amended in 28 C.F.R. § 2.20 (1976). In No. 77-1542, the government has appealed from relief granted to Hugh J. Addonizio by the sentencing judge. Appellants Thomas J. Whelan and Thomas M. Flaherty appeal at No. 77-1621 from the judgment of the district court refusing relief requested under § 2255, the decision having been made by a member of the court substituting for the now deceased sentencing judge. They also appeal at No. 77-2373 from a denial of relief in a separate action under 28 U.S.C. § 2241 for reasons that track those asserted in their § 2255 case.
In the seminal case of United States v. Salerno, 538 F.2d 1005 (3d Cir. 1976), this court formulated a rule that resentencing is required in a § 2255 proceeding where implementation of the Parole Commission's guidelines frustrated the sentencing judge's probable expectations in the imposition of a sentence pursuant to 18 U.S.C. § 4208(a)(2).*fn2 In that case we found that the sentencing judge's intentions had been clearly stated at the time of sentencing. Subsequently, in United States v. Somers, 552 F.2d 108, 113 (3d Cir. 1977), we emphasized that "the intent and expectation of the district court judge who sentences under § 4208(a)(2)... are controlling and... must be searched out to determine if relief may be ordered under 28 U.S.C. § 2255." Further, we said that "in our judgment, there can be no better evidence of a sentencing judge's expectations or intent than his own statement of those facts," id., and determined that the intent or expectation could be derived from the sentencing judge's statement at the § 2255 hearing. In United States v. Solly, 559 F.2d 230 (3d Cir. 1977), we extended the rule of Salerno and Somers to a sentence imposed pursuant to 18 U.S.C. § 4208(a)(1).
The threshold question of jurisdiction is critical to our analysis. The government argues here, as it did in previous cases before us, that a sentencing court has no jurisdiction to reduce a sentence after the period of 120 days after sentence or final unsuccessful appeal, as provided in Fed. R. Crim. P. 35,*fn3 United States v. Robinson, 361 U.S. 220, 226, 4 L. Ed. 2d 259, 80 S. Ct. 282 (1960); United States v. Robinson, 457 F.2d 1319 (3d Cir. 1972); see also United States v. Olds, 426 F.2d 562, 565 (3d Cir. 1970). The applications for relief here were made beyond the 120 day period.
We have previously rejected the government's contention that Rule 35 was the exclusive jurisdictional avenue for sentence reduction. United States v. Salerno, supra, 538 F.2d at 1008 n.4. Because the government repeatedly presents the Rule 35 contention, notwithstanding that the Salerno rule is now settled case law for the district courts in this circuit, it may be useful to explain the distinct bases of a district judge's authority under Rule 35 and § 2255 respectively. Rule 35's provision that a court "may reduce a sentence within 120 days" vests virtually unlimited power in the court to reduce the sentence without the necessity of any finding that the original sentence is subject to collateral attack or is otherwise contrary to law. By contrast, § 2255 vests in the sentencing court discrete jurisdiction to entertain a motion "to vacate, set aside, or correct" a sentence "at any time", and provides that where the court concludes it "was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack", the court has the power to "discharge the prisoner or resentence him... or correct the sentence as may appear appropriate".
It should be readily apparent that although the district court has broad discretion under Rule 35 to reduce an otherwise legal sentence within the appropriate 120 days, relief under § 2255 is independently available if any of the specified reasons exists. See Kills Crow v. United States, 555 F.2d 183, 188 (8th Cir. 1977). We reiterate the position of this circuit, originally expressed in Salerno, and repeated in Somers, that sentencing courts do have jurisdiction to entertain the § 2255 motions presented in these appeals.*fn4
Before analyzing the specific factual backgrounds of the several appeals presented here, it is necessary to address the government's second major contention common to all the appeals before us. It argues that because Salerno and Solly involved sentences imposed pursuant to 18 U.S.C. § 4208(a), these cases may not serve as precedent for attacks on the sentences involved in the present appeals, which were imposed pursuant to 18 U.S.C. § 4202.*fn5
Our beginning point is a recognition that the Salerno holding was a legal rule in the narrow sense, in the Pound formulation, a legal precept "attaching a definite detailed legal consequence to a definite, detailed state of facts."*fn6 Nevertheless we expanded its reach to a different set of facts in Somers (where the intention of the sentencing judge was expressed at the § 2255 hearing and not at the time of sentence) and extended it yet further in Solly (to a § 4208(a)(1) sentence). Thus, from an original holding we have seen, in Cardozo's words, "the directive force of a principle... exerted along the line of logical progression...."*fn7 The answer to the government's contention, therefore, requires an inquiry into the instrumental principles that influenced the creation of the Salerno rule, and its subsequent extension to Somers and Solly. Only with these principles identified can we determine whether they can be applied to the cases before us.
Upon analysis we find that the major principle influencing these decisions was that a sentencing judge's intent and probable expectations should be vindicated to the fullest extent possible. The moral support*fn8 for this precept is self-evident. It is the sentencing judge - and no other judicial or administrative tribunal - who sets the maximum limits of any sentence. So long as the maximum comes within the statutory limits and the sentencing process follows appropriate procedures, there can be no judicial review of the sentence he pronounces. Gov't. of the Virgin Islands v. Richardson, 498 F.2d 892 (3d Cir. 1974). The rationale underlying this broad discretion afforded the sentencing judge is the same as that supporting the latitude given the trial judge in his other discretionary functions, namely, "the superiority of his nether position. It is not that he knows more than his loftier brothers; rather, he sees more and senses more." M. Rosenberg, Judicial Discretion of the Trial Court, Viewed from Above, 22 Syracuse L. Rev. 635, 663 (1971). Given this near absolute control over maximum punishment, it would necessarily follow that the sentencing judge's intentions and expectations as to actual time of incarceration should be vindicated to the greatest extent possible. The Parole Commission's decision was based on a set of guidelines which was not in effect at the time of sentencing. Under circumstances where the prisoner is required to serve an appreciably longer term of imprisonment because these subsequently adopted parole guidelines effect a proveable frustration of those intentions and expectations, regard for the integrity of the sentencing court, as well as concepts of decency and fair play, dictates that that court should be in a position to vindicate those original intentions and expectations.
Woven in the texture of a legal principle, these moral considerations take the form of a right of a prisoner to relief upon proof that the sentencing judge's intentions and expectations regarding the prisoner's incarceration have been frustrated by a ...