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Case number 15-5121, Charles W. Ramsey Jr.

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Appellate versus United States Parole Commission.

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Ms.

[00:00:09] Speaker 01:
Dyer for the appellate, Mr. Lenitz for the appellate.

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Good morning, and may it please the court, Beverly Dyer on behalf of Charles Ramsey.

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I'd like to reserve two minutes for rebuttal.

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Respondent and the district court, both district courts in fact, agree that the parole commission lacked authority to incarcerate Mr. Ramsey as a parole violator on December 15th, 2004, based on the offense to which he pled guilty on that date.

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The question before this court is what follows from that outcome.

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First, no one disputes that the parole commission did not regain that authority on a later date.

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And second, neither the district court nor respondent has pointed to any instance in which the parole commission has revoked but not incarcerated.

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And certainly that is not what happened in this case.

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Third, the statutes and regulations on which the respondent and the district court relied do not support their positions.

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Those statutes do not authorize the commission to revoke parole independent of incarceration.

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If the commission cannot incarcerate, it cannot revoke.

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And therefore, in this case, if it cannot revoke, it cannot forfeit credit for street time.

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We don't have to make that broad a holding that you can't revoke without incarcerating.

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The issue, I think, is whether there was any conceivable basis on which they could have revoked Mr. Ramsey without incarcerating.

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Isn't that the narrower point?

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The problem is they were prohibited from incarcerating a person with a plea agreement under purely paragraph 6.

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So I'm not looking right now at paragraph 5, although

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I would note that both the district court and respondents cite the inability to incarcerate as based on the offense to which he pled guilty, which is the 1995 offense at that time.

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But I just want to go, because at least as I read the regulations, they were doing the revocation, the one right after the plea, on the basis of his conviction for the cocaine offense.

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The chart looks like that makes that at a minimum.

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I mean, they did the letter saying, look, there's a range there that maybe goes down to zero.

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But his offense was at a minimum of range five, which would have been a minimum of 24 months, and I think was ultimately determined to be actually a category eight, which has a minimum incarceration upon revocation of 100 months.

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So there was, am I right in reading that, that there was no chance once he was revoked

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that he wouldn't be incarcerated.

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That's correct.

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And I think that they held him in custody.

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And the revocation hearing occurred a year later in 2005.

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And at that point, they determined that his minimum was 180 months.

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But they applied a more punitive set off time of 228 months.

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So they were going to hold him for 228 months and did in fact hold him for two and a half years.

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before the West Virginia court ordered his release.

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And I think the question just under paragraph six, which everyone agrees applied here,

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is what's the total effect of their 2005 order?

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Can their 2005 order have some effect without the incarceration portion of it?

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And it's certainly not what they did.

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I mean, they incarcerated him.

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And so I don't think this court can supplant that order with a new order saying, well,

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We think they would have not incarcerated him.

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They would have given him zero time had they recognized the impact of this plea agreement and the fact that they could not incarcerate him.

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I'm not trying to agree with the plea agreement, but I understand the apparent authority and reliance.

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Did they really have the authority to enter into this paragraph six?

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They had the authority to bind the government under many case decisions.

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Yeah, I understand.

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I'm not asking that the principal, whether they're bound anyway, but weren't they overstepping their authority to enter this?

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Well, I don't think it was a well-advised provisional agreement.

[00:04:47] Speaker 01:
You think they don't respect their authority, don't you?

[00:04:49] Speaker 02:
Well, I also think that that has been found by two district court judges.

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I understand that it's binding anyway, but I think the problem all arose here when a U.S.

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attorney's office

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put more into the plea agreement than they probably had authority within.

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But that plea agreement should be upheld under due process provisions.

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I understand the due process, but I'm not arguing with it.

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Have they on the record said that they did not consult with the Corral Commission?

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I know that the district court in West Virginia found

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or assume that everyone just overlooked it, but did in fact, was there ever any, anyone ever asked?

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It's not in the record of this court that there was discussion about it, to my knowledge.

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And in the West Virginia court?

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Or in the West Virginia court, about whether or not someone consulted with the parole commission before.

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Not to my knowledge on this record before the court.

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I'm just curious, because it's flabbergasting, it's on the face of the PSR explicitly that this warrant was out there.

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and was waiting for him.

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Right in front of everybody's face.

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How could it have been overlooked?

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That's what I just can't understand.

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I can't speak to what was going through their minds when they signed the plea agreement.

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Particularly, I can't speak to what was going through the government's mind at the time they signed that plea agreement.

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But I don't, you know, I have not ever spoken with counsel

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And I had not actually asked Mr. Ramsey that question, so I don't know and I can't represent to the court what the discussion was that led to that term.

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But I don't think this court can go back on that term now.

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And if it was a windfall, it was one that Mr. Ramsey, according to two district courts, negotiated and bargained for in exchange for a guilty plea.

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And the government benefited from that and he did not.

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And I think that for the parole commission to come along and say we can forfeit credit for street time, as in 2005 when we couldn't incarcerate him in 2004, it's keeping half of the, it's just, it makes no sense.

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It's not something that the regulations support, that the statute supports, or I think that the plea agreement supports.

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And I think if this court does not agree with us on that point, then I think it needs to interpret paragraph five of the plea agreement, or it needs to interpret the West Virginia's interpretation of paragraph five of the plea agreement.

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I think that's a question.

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Is there any sense in which one would revoke street time without incarcerating, for example, just extending

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The parole period, we're starting day one now, I'm parole all over again, or is it just always come with incarceration?

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So nearly a quarter of the commission could come along and say, we're just going to extend your sentence.

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So as of this date, you have to serve another 20 years, or 10 years, or I don't know exactly how much it was.

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That defies every principle of sentence credit, in which you get credit for each day you serve in prison or on parole, towards your final sentence.

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So that's not possible.

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So you have to have incarceration to have revocation, and they couldn't have incarceration.

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I'm sorry, revocation of street credit.

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Correct.

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And I think, I just would point out that Mr. Ramsey is 76 at this point.

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If he were to serve to his full sentence at 2025, he would be 85.

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And at that point, he would face a six year special parole term until 2031, at which point he would be 91.

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Not that that affects the legal issues involved in this case.

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If the court does not have other questions, I would reserve my time for rebuttal.

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Thank you.

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Mr. Lenners.

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Good morning and may it please the court, Dan Lenners of the United States.

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Excuse me, it's simply not true that

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Mr. Ramsey was required to serve additional incarceration were his parole to be revoked in 2005.

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As an initial matter, even though his guideline range as calculated by the parole commission in 2005 was 180 months or more,

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That's merely a guideline.

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As the regulation at issue makes clear, they are guidelines and the Commission has the authority to impose a sentence below the guideline range.

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So that below the guideline range authority includes a sentence as low as zero additional months, but also includes a sentence... It took a year before they even had the hearing, so it's going to be incarcerated at least while they have the hearing.

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And while they go through the processes and then give notice and there are time delays between the decision and the actual parole.

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So no, he had to be incarcerated for the process to even work.

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Well, Your Honor, the regulations allow a revocation hearing to occur for a prisoner or for a parolee who has been subpoenaed before the commission.

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I don't understand why we're talking about these generalities.

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That's not remotely what happened in this case.

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And everyone knew, given the seriousness of his offense and his history, that there was zero chance that he was going to have

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a zero sentence.

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And there was a warrant for his arrest.

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They weren't subpoenaing him.

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They had a detainer and a warrant hanging out there.

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So maybe in some hypothetical world, we've got to deal with reality.

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And there was zero chance of that here.

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So doesn't that factor into our decision?

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Your Honor, the reason we're talking about this is because we're incredibly far down the rabbit hole.

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because Charles Ramsey is arguing that due to what the West Virginia District Court found to be an ambiguity in the plea agreement that required his immediate release, that he should receive the additional windfall of never being on parole again.

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No, the windfall, his deal, his deal, what he was trading for his guilty plea was what's spelled out in paragraph six.

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And that is, he will not be returned to another jail facility.

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He will start supervised release.

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It's not a windfall when he says, excuse me, you got your half of the bargain.

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I would like to get my half of the bargain.

[00:11:14] Speaker 00:
It's a plea agreement that nowhere discusses parole.

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Nowhere discusses his 1970s cases.

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Whose fault is that?

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that allows him... Whose fault is that?

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The U.S.

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Attorney's Office drafted the agreement, Your Honor, but that is under circumstances where supervised release is required to run concurrently with parole.

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It's under circumstances where revocation need not lead to incarceration under the conditions... There were no circumstances... Well, you can see that there was absolutely no circumstance

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given the outstanding warrant for his arrest for parole violation that was on the face of the PSR.

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There was zero chance that he was not going to be both arrested and detained and given the nature of the underlying criminal conduct.

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going to be incarcerated for some period of time.

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Your Honor, the plea agreement guaranteed that he would not be further incarcerated.

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But he could have been released from the cell block that day as the plea agreement promised.

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And he wasn't.

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That was what he was promised, and he wasn't.

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Yes, this is all counterfactual.

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But he's also arguing counterfactually.

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And if we're talking about that, it was his understanding that his parole terminated or that he wasn't allowed to be revoked.

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He never expressed that understanding.

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I'm not talking about parole terminating.

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But that would continue.

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If it was in fact his understanding that his parole could not be revoked, he never expressed that understanding until 2010.

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How about his understanding that he was not going to be incarcerated for the conduct to which he had just made this guilty plea?

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He never expressed that understanding until 2010.

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He never raised it at his revocation hearing.

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It's on the face of the agreement.

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But your honor, if you're asking about what Charles Ramsey's personal understanding was at his revocation hearing in February of 2005, just two months after he signed this agreement, he never raised the fact that you have an attorney for that.

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Do I have a site for that?

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Did he have an attorney for that?

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He did have an attorney.

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And he never said?

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He never said, I shouldn't be revoked because I had this plea agreement.

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He never said that.

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Then he appealed.

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He appealed the commission's February 2005 decision within the commission to say, to argue for a more lenient sentence.

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He never raised his plea agreement.

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He filed a habeas petition.

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in the Southern District of West Virginia, he never said that the plea agreement mandated his immediate release.

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The relief he requested in his habeas petition was a new revocation hearing to take into consideration mitigating circumstances.

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Was that with an attorney or was that per se?

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That was per se, Your Honor.

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But he never raised it.

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He never said it was my personal understanding that the parole commission could not revoke my parole.

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What the West Virginia District Court gave him relief beyond that, which he requested, granted his immediate release.

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And now he says not only should he have gotten immediate release, but that he should have been credited with all of this time that he was in jail as having been on parole.

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Well, what he's saying is, I should not have been re-incarcerated.

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I should not have been re-incarcerated.

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And one part of that, and that's what the,

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West Virginia Court agreed with.

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You should not have been incarcerated.

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You should have walked out as promised.

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And the only predicate for that loss of street time was that he was incarcerated for parole violation.

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The predicate for the loss of street time was revocation.

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So he makes the additional leap.

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I shouldn't have been incarcerated.

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And because it precluded incarceration, a reasonable person would understand that to preclude the commission from revoking.

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But that's not true.

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Revocation need not lead to further incarceration.

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Revocation could have led to an amount of incarceration that perfectly matched what he had been sentenced to in this case.

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The commission could have deviated downward.

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I'm sorry, can you explain that to me one more time?

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Because this is what I'm trying to understand.

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So the commission could have revoked.

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and sentenced him to the approximately nine years in prison that he received the 1995 crime, and they could have made those run concurrently.

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It could have given him a concurrent sentence with his underlying district court sentence.

[00:15:13] Speaker 03:
So he wouldn't have received... But he didn't have a district court sentence because the 1995 conviction was overturned.

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I'm talking about a plea agreement.

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This is actually important for me to understand because if there's some way that they could have denied him the street time credit while still complying with the agreement,

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That's what I'm trying to understand.

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When he walked out, not incarcerated him, as the West Virginia court ruled, but still extend, just undo all the time he spent on parole and start day one?

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Yes, Your Honor.

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There are two ways.

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It could have, the parole commission could have revoked, denied street time, but sends him to zero.

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The guidelines make clear that zero is within the guidelines, that revocation does not necessarily mean re-incarceration.

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It usually does, but not necessarily.

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Revocation is not the equivalent of re-incarceration.

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So one thing they could have done is revoked, sentenced him to zero, but denied him credit for street time.

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A second way... Okay, this is what I want to understand.

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Imagine they had done that, and imagine they had done it through a subpoena instead of a warrant for his arrest.

[00:16:23] Speaker 03:
So they subpoena him on December whatever, 2004, as he's walking out, they hand him a subpoena, come to this hearing.

[00:16:32] Speaker 03:
Okay, and so he's out, he starts his supervisor release, he shows up for the hearing, and at that point they could have revoked and done what?

[00:16:41] Speaker 00:
Imposed, they could have done, they imposed an additional sentence of zero.

[00:16:44] Speaker 03:
Uh-huh.

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And then, and still?

[00:16:46] Speaker 00:
And revoked and denied credit for street time based on his conviction.

[00:16:50] Speaker 03:
Okay, so then what would the effect of that denial of street time credit?

[00:16:53] Speaker 03:
Would that mean all those years that he'd spent out on the street on parole would be canceled and it would be as if his first day of parole for the 1970s offenses started the day of that hearing?

[00:17:07] Speaker 00:
Yes, Your Honor.

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And that's how parole works.

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I mean, it may strike Your Honors as unusual given our current system.

[00:17:15] Speaker 00:
That's how parole works.

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A conviction allows the parole commission to deny time for street time.

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So if you're convicted of a new crime on your last day of parole,

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The regulations allow the commission to say, you shouldn't have committed a new crime.

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You could have been in jail this entire time.

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You're at conditional liberty.

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And the consequence of you committing this new crime is that you don't get credit.

[00:17:42] Speaker 01:
That's how parole works.

[00:17:48] Speaker 00:
The second way the commission could have done it is even if it didn't want to sentence him to zero time when it revoked, it could have sentenced him to an identical nine years

[00:17:58] Speaker 00:
to run concurrent with the sentence he received from the district court.

[00:18:04] Speaker 00:
And so he would have been given the sentence.

[00:18:05] Speaker 03:
If the sentence he got from the district court was time served.

[00:18:07] Speaker 03:
I don't understand that.

[00:18:08] Speaker 00:
His time served was nine years.

[00:18:10] Speaker 00:
So it could have said, you get the exact number of days in prison to run concurrent.

[00:18:14] Speaker 00:
And he would have been released on the same day, having been given a sentence of incarceration greater than zero.

[00:18:21] Speaker 03:
Well, why would they do that?

[00:18:22] Speaker 03:
Why would they just say zero?

[00:18:24] Speaker 03:
I don't understand why they would do that.

[00:18:25] Speaker 00:
Well, Your Honor.

[00:18:27] Speaker 03:
That seems silly.

[00:18:29] Speaker 00:
But Your Honor said there's no... Your Honor said that there's no... Your Honor said that they sent you for nine years, but you're already done.

[00:18:38] Speaker 00:
So they might do that.

[00:18:40] Speaker 00:
Well, so in theory, they might do that if they think a state court or district court has given a sentence longer than necessary for the underlying conduct, because they're considering what additional incarceration is

[00:18:52] Speaker 03:
Your point is that they could have said time served just like before.

[00:18:55] Speaker 00:
They could have said time served just like the district court, and that would have been a sentence of incarceration greater than zero, which would have, after a revocation, that would have led to no additional jail time.

[00:19:06] Speaker 00:
And it proves the point that the plea agreement's prohibition on further incarceration was not a prohibition on revocation.

[00:19:15] Speaker 00:
And that's his whole argument.

[00:19:17] Speaker 00:
His whole argument is that a reasonable person would read a- Would you concede that the U.S.

[00:19:22] Speaker 00:
Attorney's Office overstepped in this plea agreement?

[00:19:24] Speaker 00:
I think the Fourth Circuit called a similar circumstance something like inappropriate.

[00:19:30] Speaker 00:
I'll take that as a yes.

[00:19:35] Speaker 00:
overstepped, but the district court in West Virginia found that no one considered what the parole commission might do.

[00:19:42] Speaker 03:
And so is that your position that you have?

[00:19:44] Speaker 03:
Because it strikes me as just extraordinary that this could have been nobody noticed, given that it was on the face, right smack middle front page of the PSR and again on the inside that he had not a subpoena, but a warrant out for his immediate arrest and

[00:20:03] Speaker 03:
That's exactly what happened in the courthouse that day.

[00:20:05] Speaker 03:
What a coincidence.

[00:20:07] Speaker 03:
He didn't walk out.

[00:20:08] Speaker 03:
They were there, ready to take him, and yet the government didn't know, hadn't thought about this?

[00:20:15] Speaker 00:
I have two answers.

[00:20:17] Speaker 00:
One is the attorney who signed the plea agreement is no longer in my office, and so I've not spoken with him personally.

[00:20:23] Speaker 00:
My second answer is that if Mr. Ramsey understood this plea agreement to have guaranteed that the parole commission would not act,

[00:20:32] Speaker 00:
He certainly didn't show that until 2010.

[00:20:35] Speaker 00:
He didn't show it at the revocation hearing.

[00:20:37] Speaker 00:
He didn't show it on appeal within the parole commission.

[00:20:40] Speaker 00:
He didn't show it in his pleadings before the West Virginia District Court.

[00:20:43] Speaker 00:
The first time he raised that argument was in 2010.

[00:20:46] Speaker 00:
And so the suggestion that he understood that the parole commission didn't do anything is allied by his own actions.

[00:20:52] Speaker 03:
No, what I'm more worried about is what the government understood was going to happen.

[00:20:55] Speaker 03:
Was it making these types of representations knowing

[00:21:00] Speaker 03:
that it wasn't going to happen.

[00:21:02] Speaker 00:
I don't think there's any indication of government bad faith on this record, Your Honor.

[00:21:06] Speaker 01:
It may not be bad faith, but it's certainly not within the normal bounds of what U.S.

[00:21:13] Speaker 01:
Attorneys do with the plea agreement.

[00:21:15] Speaker 00:
In fairness, this plea agreement does differ from the one that the Fourth Circuit looked at in Jurgenti.

[00:21:22] Speaker 01:
It differs from any that I ever saw.

[00:21:24] Speaker 00:
I'm sorry, Your Honor?

[00:21:25] Speaker 01:
It differs from any that I ever saw.

[00:21:34] Speaker 01:
and what you're going to do.

[00:21:37] Speaker 01:
Congress seems to speak to the whole government, and I understand, and I'm not arguing with the Defenders' proper position that the U.S.

[00:21:47] Speaker 01:
got into this position and they are bound by it, but I don't see how the U.S.

[00:21:53] Speaker 01:
Attorney's Office can defend its conduct in entering into the agreement.

[00:21:57] Speaker 00:
I'm not defending the U.S.

[00:21:58] Speaker 00:
Attorney's Office conduct, Your Honor.

[00:21:59] Speaker 00:
What I'm explaining is that

[00:22:02] Speaker 00:
The U.S.

[00:22:03] Speaker 00:
Attorney's Office in West Virginia did not appeal to the district court the magistrate's order that Mr. Ramsey be immediately released.

[00:22:11] Speaker 00:
I would point out that unlike the plea agreement at issue in the Fourth Circuit in Jurgenti, which explicitly attempted to bind the parole commission,

[00:22:19] Speaker 00:
that said this plea agreement, under this plea agreement, the parole commission will only consider a certain amount of cocaine that was smaller than that at issue in that case.

[00:22:27] Speaker 03:
This plea agreement said nothing about the parole commission and in fact... Well, but it said right before paragraph four, in all caps, mind you, the government's obligations, acknowledgments and waivers, colon.

[00:22:43] Speaker 03:
And both five and six come after that.

[00:22:45] Speaker 03:
And we have the government

[00:22:48] Speaker 03:
obligating itself that he not be returned to any other prison facility and he will, in exchange, fair words, be immediately eligible for supervised release, which doesn't happen when you're in prison.

[00:23:04] Speaker 00:
But it does happen when you're on parole, Your Honor.

[00:23:06] Speaker 00:
And paragraph five, the West Virginia District Court found was explicitly clear that it only bound the U.S.

[00:23:14] Speaker 00:
Attorney's Office for the District of Columbia, and it only bound it.

[00:23:18] Speaker 01:
There's an ambiguity created by paragraph six, right?

[00:23:22] Speaker 00:
Yes.

[00:23:23] Speaker 00:
If there are no further questions, we would ask the President of the District of Columbia.

[00:23:27] Speaker 01:
And ambiguities are resolved in favor of the defendant, right?

[00:23:31] Speaker 00:
And that ambiguity was resolved in the defendant's favor when he was granted immediate release.

[00:23:42] Speaker 01:
liberally in favor of the defendant.

[00:23:44] Speaker 00:
Correct.

[00:23:45] Speaker 00:
And it was in this case, but he's attempting to create a further ambiguity where none exists to receive an additional windfall, which is the termination of his parole when, in fact, he should continue to be on parole.

[00:24:00] Speaker 03:
Does Ms.

[00:24:00] Speaker 03:
Dahr have any time left?

[00:24:07] Speaker 02:
Thank you, Your Honor.

[00:24:10] Speaker 02:
With respect to whether Mr. Ramsey raised this earlier, I would just point out that the West Virginia court described his claim before that court on grounds four and five.

[00:24:19] Speaker 02:
It says, undergrounds four, he contends that the parole commission as part of the Department of Justice was bound by the plea agreement provision not to prosecute him further.

[00:24:28] Speaker 02:
Therefore, he asserts that he should have been released rather than incarcerated on the parole revocation.

[00:24:33] Speaker 02:
And that's on page 101 of the appendix.

[00:24:35] Speaker 03:
You make the street time credit argument in that court?

[00:24:40] Speaker 02:
Well he he says

[00:24:44] Speaker 02:
He says bound not to prosecute him further based on his offense.

[00:24:49] Speaker 02:
He certainly made the paragraph five argument.

[00:24:52] Speaker 02:
I think that the street time argument follows, and I was gonna turn to that next, and it is raised certainly in the 28-J letters and responses that were filed in the last couple of days as to whether revocation can ever be zero.

[00:25:06] Speaker 02:
And I would just point out that if the government is relying on a lesser than equal sign,

[00:25:12] Speaker 02:
for its proposition that revocation can include zero.

[00:25:16] Speaker 02:
It would have been a simple matter for the Commission or the writers of that regulation to put in zero to four months or zero to eight months.

[00:25:23] Speaker 02:
But that would have been the most natural way to state zero.

[00:25:28] Speaker 02:
Instead, they put in less than or equal to.

[00:25:31] Speaker 02:
And I would posit that one possibility for that is that it was more inelegant to say one day to four months or ten days to four months or whatever a

[00:25:40] Speaker 02:
positive number would have been that was less than one month.

[00:25:43] Speaker 02:
So I think that the less than or equal sign certainly doesn't mean necessarily zero.

[00:25:49] Speaker 02:
I also would point out that if, as the government suggested, and this is all hypothetical and speculative, the Commission in 2005 at a revocation hearing at which Mr. Ramsey attended by subpoena instead of warrant,

[00:26:03] Speaker 02:
And I would point out that his warrant said he would be released or he would be held in custody.

[00:26:07] Speaker 02:
But if they had at that point ordered, I think it was a 108-month sentence consistent with a time-served sentence in district court, then his street time would be forfeited back, I believe, to that point.

[00:26:18] Speaker 02:
And I don't know when it would start, and I don't think anybody has calculated a sentence that would result from a sentence that began

[00:26:24] Speaker 02:
with a set-off time that started at the beginning of the 1995 case.

[00:26:29] Speaker 02:
So we're getting into very complex territory here, and we're speculating as to what the Commission might have or could have done.

[00:26:37] Speaker 02:
All right.

[00:26:37] Speaker 02:
If the court has no further questions, I thank you very much.