The opinion of the court was delivered by: Matthew F. Kennelly, United States District Judge,
MEMORANDUM OPINION AND ORDER
On June 25, 2002, defendant James Kramer pled guilty to a single charge of mail fraud. The offense involved a scheme by Kramer and others to defraud Kramer's employer, Sherwood, Davis & Geck, Ltd., of the honest services of Kramer and other employees, and to obtain money from SDG and others by means of false and fraudulent pretenses, representations, and omissions. Specifically, Kramer and others misappropriated medical devices from SDG and sold them for their own benefit, pocketing the proceeds. Kramer diverted medical devices having a wholesale value exceeding $600,000, see Plea Agreement ¶ 5, and he pocketed around $100,000. See Presentence Report, p. 8, lines 261-63.
Kramer executed a written plea agreement, and at his guilty plea hearing he stated under oath that he had carefully read and gone over the agreement with his lawyer. The plea agreement included an understanding between Kramer and the government that his Sentencing Guidelines criminal history category was I and his total offense level was seventeen, see Plea Agreement ¶ 6; if accepted by the Court, this would have resulted in a sentencing range of twenty-four to thirty months imprisonment. The plea agreement also included an undertaking by the government to move for a downward departure pursuant to Guideline § 5K1.1 based on Kramer's cooperation with the authorities. Id. ¶ 16. That same provision included an agreement by the parties under Federal Rule of Criminal Procedure 11(e)(1)(C)) (now Rule 11(c)(1)(C)) that Kramer "shall be sentenced to a term of imprisonment of not less than 12 months plus one (1) day." Id. In the plea agreement, Kramer represented that no promises or representations had been made to him, other than those in the plea agreement, to cause him to plead guilty. Id. ¶ 20. When he entered his guilty plea in open court, Kramer reaffirmed this under oath.
In the presentence report, the Probation Office took issue with the parties' agreed upon calculation of the offense level, recommending a total offense level of fifteen rather than seventeen. The Probation Office's proposed calculation would have resulted in a sentencing range of eighteen to twenty-four months prior to the government's anticipated motion under § 5K1.1. The government did not object to the lower calculation. At the sentencing hearing, held on November 18, 2002, the government advised the Court that in light of sentences previously imposed upon other defendants, it had agreed with Kramer to modify the Rule 11(e)(1)(C) agreement to permit imposition of a sentence of nine months imprisonment. The parties did not advise the Court of any other revisions to the Plea Agreement or of any other understandings they had that were inconsistent with the colloquy at Kramer's guilty plea hearing.
The Court accepted the parties' revised Rule 11(e)(1)(C) agreement and imposed a nine month prison term. Defense counsel requested that the Court recommend to the Bureau of Prisons that it designate Kramer to serve his term in a community corrections center (CCC) rather than as straight prison time. At the time, Bureau of Prisons policy authorized such designations, pursuant to 18 U.S.C. § 3621(b), which states that the BOP "shall designate the place of the prisoner's imprisonment" and "may designate any available penal or correctional facility that meets minimum standards of health and habitability established by the Bureau . . . that the Bureau determines to be appropriate and suitable," after considering several enumerated factors, including any recommendation made by the sentencing judge. The Court agreed to recommend placement at a CCC because Kramer has joint custodial responsibilities for his two children, was an essential source of their support, and risked losing his job if imprisoned. We advised Kramer, However, that there was no guarantee that the BOP would follow the Court's recommendation. We directed Kramer to report to the designated facility on January 8, 2003 and later extended that date at Kramer's request, without objection by the government.
On December 20, 2002, the BOP changed its policy regarding CCC designation. This change resulted from a directive from the Department of Justice's Office of Legal Counsel stating that applicable law does not permit the BOP to designate a person sentenced to prison to serve his time in a CCC, except for the last 10 percent of a prison term. Specifically, OLC opined that the term "imprisonment" as used in § 3621(b) was not synonymous with "community confinement" and that the BOP therefore lacked the discretion to have offenders serve sentences of imprisonment in CCCs. Presumably as a result of this directive, with it determinated a designation for Kramer, the BOP selected a custodial facility rather than a CCC.
On February 12, 2003, Kramer (who had not yet been required to report to begin serving his sentence) filed a motion entitled "motion to vacate, set aside, or correct judgment." In the motion, made pursuant to 28 U.S.C. § 2241 & 2255, Kramer asked the Court to amend the judgment to impose a prison term of one day, to be followed by a term of supervised release with a condition of nine months of community confinement. In his memorandum filed in support of the motion, Kramer argued that the BOP's policy change violated due process, and he also argued that the policy should not be applied retroactively. Though he did not refer to the Constitution's prohibition against ex post facto legislation, the Court construes the latter argument as raising an ex post facto claim. Kramer later made a supplemental submission in support of his motion.
The Court ordered the government to respond to Kramer's motion by March 5, 2003. The government ignored this order and filed no response. The Court could have ruled on the matter at that juncture. However, because we were unsure whether the government's non-response indicated that it did not oppose Kramer's request, we set the matter for hearing. At the hearing, the prosecutor advised the Court that despite his earlier failure to object, the government did in fact oppose Kramer's motion.
He advised the Court that there were a number of district judges who had rejected similar requests, and he agreed to supply the Court with copies of those decisions. Kramer's attorney likewise cited additional court decisions beyond those referenced in his original memorandum. The Court extended Kramer's surrender date to May 7, 2003 so that we could carefully consider the issues presented by his motion.
Though Kramer's motion on its face relies only on sections 2241 and 2255, one of the district court decisions he cites relied upon Federal Rule of Criminal Procedure 36 to modify the sentence of a defendant who found himself in somewhat the same situation as Kramer. The Court therefore construes Kramer's motion as implicitly making a request for modification pursuant to Rule 36 as well as sections 2241 and 2255.
A. Federal Rule of Criminal Procedure 36
In United States v. Canavan, Crim. No. 00-276, 2003 WL 245226 (D.Minn. Jan. 22, 2003), the court addressed the case of a defendant who had been designated to a CCC under the former BOP policy and who was about to be relocated to a prison as a result of the policy change. The court had originally imposed a one year prison term after granting the government's motion for a downward departure under U.S.S.G. § 5K1.1, but in doing so it had recommended designation of a CCC and had specifically relied upon the BOP's prior policy. The court held that the BOP's change in policy gave it the authority to modify the defendant's sentence under Federal Rule of Criminal Procedure 36, which provides that "the court may at any time correct a clerical error in a judgment, order, or other part of the record, or correct an error in the record arising from oversight or omission." The court found that the BOP's new policy "misrepresents the Court's sentence no less than if the Clerk had omitted or mistakenly transcribed some important part of the sentence." Id. *1. It therefore modified the sentence to a four year term of probation with a period of twelve months community confinement.
Without commenting on the propriety of using Rule 36 to modify a sentence in this manner, this case is significantly different from Canavan. This Court did not rely on the BOP's former policy in any way, shape, or form in imposing the sentence in this case. Specifically, in determining whether to adopt the parties' agreed-upon nine month prison sentence, the Court did not take into account the likelihood that Kramer would be assigned to a CCC rather than to a prison. In addition, though Kramer may have had a realistic hope of being designated to a CCC, the ...