                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-12-2004

USA v. Eakman
Precedential or Non-Precedential: Precedential

Docket No. 03-1835




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004

Recommended Citation
"USA v. Eakman" (2004). 2004 Decisions. Paper 440.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/440


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                      PRECEDENTIAL           Shelley Stark
                                                    Federal Public Defender
   UNITED STATES COURT OF                    Lisa B. Freeland, Esq. (Argued)
APPEALS FOR THE THIRD CIRCUIT                       Assistant Federal Public Defender
                                             1450 Liberty Center
                                             1001 Liberty Avenue
                                             Pittsburgh, PA 15222
               No. 03-1835
                                                    Attorneys for Appellant

                                             Mary Beth Buchanan
   UNITED STATES OF AMERICA,                        United States Attorney
                     Appellee                Christine A. Sanner, Esq. (Argued)
                                             Bonnie R. Schlueter, Esq.
                     v.                             Assistant United States Attorneys
                                             633 U.S. Post Office and Courthouse
       SAMUEL L. EAKM AN, JR.,               Pittsburgh, PA 15219
                      Appellant
                                                    Attorneys for Appellee


 Appeal from the United States District             OPINION OF THE COURT
   Court for the Western District of
             Pennsylvania
   (D.C. Crim. No. 98-cr-00029-2)            SHADUR, District Judge.
  District Judge: Honorable Gary L.
               Lancaster                             Federal prisoner Samuel L. Eakman
                                             (“Eakman”) appeals from the district
                                             court’s denial of his 28 U.S.C. § 2255 2
         Argued March 11, 2004               motion that seeks the vacation or
                                             amendment of his prison sentence.
 Before: SLOVITER and NYGAARD,               Eakman claims that his current sentence is
 Circuit Judges, and SHADUR,1 District       constitutionally invalid because the district
                  Judge                      judge relied on a mistaken understanding
                                             of the law in believing that the Bureau of
       (Opinion filed July 12, 2004 )        Prisons (“Bureau”) had the discretion to
                                             place him in a community corrections

   1
      Honorable Milton I. Shadur,
                                                2
United States District Court Judge for the          All further references to Title 28
Northern District of Illinois, sitting by    provisions will take the form “Section
designation.                                 –.”
center (also known as a “halfway-house”),                A   C O MM UN ITY
when in fact the Bureau lacked such                      CORRECTIONS CENTER
authority under the law.3 On the record                  WITH THE DEFENDANT
before us it appears highly likely (at a                 BEING    GRANTED
minimum) that the district court would                   IMMEDIATE WORK
have imposed a different sentence had it                 RELEASE STATUS.
not been for its contrary understanding.
                                                         On November 7, 2002 (over two
        We hold that under such                   years after he was sentenced) Eakman
circumstances the sentence imposed                began to serve his prison term at a
violated due process, so that a hearing on        community corrections center. But on
Eakman’s Section 2255 motion should               December 13, 2002 the Department of
have been granted. We therefore remand            Justice's Office of Legal Counsel issued a
for further proceedings in accordance with        memorandum concluding that the Bureau
this opinion.                                     had no statutory authority to assign
                                                  prisoners to community corrections centers
               Background                         for the imprisonment portion of the
                                                  sentence.      Accordingly the Bureau
        Eakman pleaded guilty on October          changed its prior practice and planned to
30, 1998 to two counts of conspiracy, one         transfer to other facilities all prisoners
pertaining to the possession of anabolic          (including Eakman) who as of December
steroids and the other charging money             16, 2002 had more than 150 days
laundering. On September 9, 1999 the              remaining on their prison terms.
court sentenced him to 18 months’
imprisonment. For reasons not relevant to                Eakman then moved the district
this appeal, on July 10, 2000 we issued a         court to vacate or amend his sentence
nonprecedential opinion (reported in table,       under Sections 2241 and 2255 and asked
229 F.3d 1139 (3d Cir. 2000)) vacating            for the appointment of counsel. 4 On
Eakman’s original sentence and remanding          January 22, 2003 the district court
the case to the district court for                appointed a Federal Public Defender to
resentencing. On October 20, 2000 the             represent Eakman but denied his Section
district court imposed a new imprisonment         2241 and 2255 motions. Eakman sought
term of one year and a day, with this
recommendation to the Bureau:
                                                     4
                                                          As the government raises no issue
       THIS   SENTENCE
                                                  as to Section 2255's one-year statute of
       SHOULD BE SERVED AT
                                                  limitations, we need not determine
                                                  whether Eakman’s claim fits within that
                                                  time restriction (Robinson v. Johnson,
   3
       More on the latter subject later.          313 F.3d 128, 135–37 (3d Cir. 2002)).

                                              2
and obtained a certificate of appealability       district court did not have jurisdiction
as to this claim:                                 under Section 2241 because he failed to
                                                  serve (or name) his custodian. In response
       Petitioner’s sentence was                  the government argues that only Section
       imposed in violation of his                2241 provides a potential source of relief
       federal constitutional right               because Eakman essentially contests the
       to due process where (1) this              place of his imprisonment, not the validity
       Court relied upon material                 of his sentence. And to be sure, Section
       misin f o r m a t io n w h en              2255 “is expressly limited to challenges to
       sentencing Petitioner, i.e.,               the validity of the petitioner's sentence”
       that the Bureau of Prisons                 and “Section 2241 is the only statute that
       (“BOP”) had the discretion,                confers habeas jurisdiction to hear the
       under 18 U.S.C. § 3621(b),                 petition of a federal prisoner who is
       to designate a community                   challenging not the validity but the
       corrections center for                     execution of his sentence” (Coady v.
       service of that sentence, and              Vaughn, 251 F.3d 480, 485 (3d Cir.
       (2) had it been known that                 2001)).
       the BOP would repudiate
       the discretion the parties and                     But here Eakman does contest the
       the Court believed it had,                 validity of his sentence: He argues that the
       counsel for Petitioner could               district court committed an error of law in
       have advocated for (and the                assuming that the Bureau could lawfully
       court could have granted) a                place Eakman in a community corrections
       downward departure that                    center, a mistake that he says
       would have resulted in a                   fundamentally tainted the sentencing
       sentence that [required]                   proceeding. Eakman seeks resentencing,
       Petitioner to serve a year                 not a determination that the Bureau's
       and a day in a community                   change in practice was unlawful or an
       confinement center.                        order preventing his transfer from the
                                                  community corrections center. Hence his
Eakman filed a timely notice of appeal,           claim is suitable for consideration under
and the district court released Eakman on         Section 2255. And because the district
bond pending appeal.                              court denied Eakman’s motion as a matter
                                                  of law and without a hearing, we review its
         Section 2255 or 2241?                    ruling de novo (United States v. Cleary, 46
                                                  F.3d 307, 309–10 (3d Cir. 1995)).
       Eakman originally invoked both
Sections 2241 and 2255 in the court                       Section 2255 provides in pertinent
below, but he limits his challenge on             part:
appeal to Section 2255, conceding that the

                                              3
A prisoner in custody under                 such a denial or
s e n t e n c e o f a c o u rt              i n f r in g e m e n t o f t h e
established by Act of                       constitutional rights of the
Congress claiming the right                 prisoner as to render the
to be released upon the                     judgment vulnerable to
ground that the sentence                    collateral attack, the court
was imposed in violation of                 shall vacate and set the
the Constitution or laws of                 judgment aside and shall
the United States, or that the              discharge the prisoner or
court w as without                          resentence him or grant a
jurisdiction to impose such                 new trial or correct the
sentence, or that th e                      sentence as may appear
sentence was in excess of                   appropriate.
the maximum authorized by
law, or is otherwise subject         Because Eakman raises no issues as to the
to collateral attack, may            constitutionality or lawfulness of the
move the court which                 sentence itself, and because nothing in the
imposed the sentence to              record suggests that the district court
vacate, set aside or correct         lacked jurisdiction to impose the sentence,
the sentence.                        we need decide only whether the record
                                     sufficiently demonstrates that Eakman’s
Unless the motion and the            sentence is “otherwise open to collateral
files and records of the case        attack.”
conclusively show that the
prisoner is entitled to no              Error of Constitutional Magnitude
relief, the court shall cause
notice thereof to be served                 United States v. Addonizio, 442
upon the United States               U.S. 178, 184 (1979), confirms that “[i]t
attorney, grant a prompt             has, of course, long been settled law that
hearing thereon, determine           an error that may justify reversal on direct
the issues and make findings         appeal will not necessarily support a
of fact and conclusions of           collateral attack on a final judgment.”
law with respect thereto. If         Section 2255 permits relief for an error of
the court finds that the             law or fact only where the error constitutes
judgment was rendered                a “fundamental defect which inherently
without jurisdiction, or that        results in a complete miscarriage of
the sentence imposed was             justice” (id. at 185, quoting Hill v. United
not authorized by law or             States, 368 U.S. 424, 428 (1962)). We
otherwise open to collateral         have applied that teaching by requiring a
attack, or that there has been       petitioner who collaterally attacks his

                                 4
sentence based on some error in the                 According to the prisoner, he would have
sentencing proceeding to allege (1) that the        been released when he became eligible for
district court received “misinformation of          parole under the old parole system (the one
a constitutional magnitude” and (2) that            in effect at the time of his sentencing), but
the district judge relied at least in part on       he was instead denied parole twice as a
that misinformation (United States v.               direct consequence of the change in parole
Spiropoulos, 976 F.2d 155, 163 (3d Cir.             policy (442 U.S. at 182).
1992)).
                                                            Both the Addonizio district court
       As the government would have it,             and Court of Appeals (incidentally this
Eakman’s sentencing proceeding was not              Court) found the prisoner was entitled to
fundamentally defective as a matter of law          relief under Section 2255 (id. at 183), with
because the district court had no                   the district judge ruling that the Parole
enforceable expectation of Eakman’s                 Commission’s change in policy had
placement in a community corrections                thwarted his sentencing expectation by
center. At best, argues the government,             denying the prisoner “the kind of
Eakman alleges that the district court’s            ‘meaningful parole hearing’ that the judge
subjective expectations may have been               had anticipated when sentence was
frustrated, but that does not suffice to            imposed” (id.). As the district judge
show an error of “constitutional                    explained, he had expected that the
magnitude.”        In that respect the              prisoner would be released after serving
government urges that Eakman’s claim is             one-third of his sentence, assuming good
no different from that in Addonizio, where          be ha v ior , w i t h that “sente ncin g
a federal prisoner mounted a collateral             expectation [being] based on the Court’s
attack to his sentence under Section 2255           understanding – which was consistent with
because post-sentencing the United States           generally-held notions – of the operation
Parole Commission significantly modified            of the parole system in 1970” (id. at 181
the weight it placed on several factors in          n.3). We affirmed the judgment.
deciding whether to grant parole.5
                                                           But the Supreme Court reversed,
                                                    ruling that the prisoner’s claim was not
   5                                                cognizable under Section 2255 because
        Addonizio actually involved the
                                                    “[t]he claimed error here – that the judge
claims of not one but three prisoners, but
                                                    was incorrect in his assumptions about the
it presented the facts only as to one of
                                                    future course of parole proceedings – does
them, both to sharpen the focus of the
                                                    not meet any of the established standards
legal issues and because the claims of the
                                                    of collateral attack” (442 U.S. at 186).
other two prisoners were identical (442
                                                    Although the Court recognized that a
U.S. at 179–80). We follow that lead and
                                                    lawful sentence may be set aside under
refer only to the prisoner whom the
                                                    Section 2255 if it is based on
Supreme Court discussed in its opinion.

                                                5
“ m i si n f o rmation of constitutional          would be at odds with Congress’
magnitude,” it held that “there is no basis       delegation of authority to the Parole
for enlarging the grounds for collateral          Commission to determine whether and
attack to include claims based not on any         when prisoners should be released:
objectively ascertainable error but on the
frustration of the subjective intent of the              [T]h e judge has no
sentencing judge” (id. at 187). As the                   enforceable expectations
Court continued (id. at 187-88):                         with respect to the actual
                                                         release of a sentenced
       As a practical matter, the                        defendant short of his
       subjective intent of the                          statutory term. The judge
       sentencing judge would                            may well have expectations
       provide a questionable basis                      as to when release is likely.
       for testing the validity of his                   But the actual decision is
       judgment. The record made                         not his to make, either at the
       when Judge B arlow                                time of sentencing or later if
       pronounced sentence against                       his expectations are not met.
       Addonizio, for example, is                        To require the Parole
       entirely consistent with the                      Commission to act in
       view that the judge then                          accordance with judicial
       thought that this was an                          expectations, and to use
       exceptional case in which                         collateral attack as a
       the severity of Addonizio’s                       mechanism for ensuring that
       offense should and would be                       these expectations are
       considered carefully by the                       carrie d out, would
       Parole Commission when                            substantially undermine the
       Addonizio became eligible                         congressional decision to
       for parole. If the record is                      entrust           r e lease
       ambiguous, and if a § 2255                        de te r m ina tions to th e
       motion is not filed until                         Commission and not the
       years later, it will often be                     courts. Nothing in § 2255
       difficult to reconstruct with                     supp orts – le t alone
       any certainty the subjective                      mandates – such a
       intent of the judge at the                        frustration of congressional
       time of sentencing.                               intent.

      Addonizio, id. at 190, found that           In sum, Addonizio refused to expand
opening sentences to collateral attack            habeas relief beyond “objectively
based on a court’s expectations about             ascertainable errors” to errors that would,
when a prisoner is likely to be released          to paraphrase Skycom Corp. v. Telstar

                                              6
Corp., 813 F.2d 810, 814 (7th Cir. 1987),                  cases in which either a
“invite a tour through [the judge’s]                       federal statute or specific
cranium, with [the judge] as the guide.”                   Civil Rule requires that
Instead the error must be “objectively                     result.
ascertainable” in the sense that it can be
determined from the record and also in the          And Section 2255 certainly does not
sense that it does not depend on assessing          contain such a requirement. All that a
the particular intention of the sentencing          Section 2255 petitioner must do is to
judge.                                              allege (and eventually prove) that the
                                                    sentencing court committed an error of
        Some district courts that have faced        constitutional magnitude and that the error
claims like the one at issue here have              influenced the sentence.
attempted to distinguish Addonizio on the
basis that petitioners in those cases have                 Addonizio, 442 U.S. at 186,
expressly asserted a constitutional basis for       rejected the petitioner’s motion not
their collateral attacks, while the prisoner        because of some pleading mistake, but
in Addonizio failed to articulate such a            rather because it concluded that a
basis for his claim. For instance, Pearson          sentencing court’s expectations about the
v. United States, 265 F.Supp.2d 973, 980            future course of discretionary parole
( E. D. Wis. 2003) ob serve d th at                 proceedings cannot give rise to an error of
“petitioner’s claim is explicitly based on          constitutional magnitude. If Eakman’s
the Due Process Clause, unlike that of the          motion presented no more than a similar
defendant in Addonizio, who asserted no             allegation – that the district judge expected
constitutional basis for his motion” (see           the Bureau to exercise its discretion to
also Smith v. United States, 277 F.Supp.2d          require Eakman to serve his sentence at a
100, 107-08 (D. D.C. 2003); Culter v.               community confinement center, but the
United States, 241 F.Supp.2d 19, 26-27 n.7          Bureau did not conform to that expectation
(D. D.C. 2003)). We find that distinction           – his motion would meet the same fate,
problematic. Surely those cases cannot              because (as the government correctly
suggest that Addonizio added a heightened           states) the Bureau has the exclusive
pleading standard to Section 2255 motions           authority to determine the place of
(see Swierkiewicz v. Sorema N.A., 534               imprisonment under 18 U.S.C. § 3621(b)
U.S. 506, 513-14 (2002)). As Educadores             (see United States v. Serafini, 233 F.3d
Puertorriqueños en Acción v. Hernández,             758, 777-78 (3d Cir. 2000)).
367 F.3d 61, 66 (1st Cir. 2004) observes:
                                                            But that is not Eakman’s
       Swierkiewicz has sounded                     contention. Instead he asserts that the
       the death knell for the                      district judge believed the Bureau could
       imposition of a heightened                   lawfully place him in a community
       pleading standard except in                  corrections center when, according to the

                                                7
government, 18 U.S.C. § 3621(b) never              ascertained from the record.6 In fact, it is
gave the Bureau the legal authority to do          hard to imagine how a sentence could ever
so. Unlike Addonizio, Eakman does not              be deemed fair when there is some way to
challenge his sentence on the basis that the       verify the sentencing court’s error
district judge made a bad predictive               externally (whether an error of fact or an
judgment about how his sentence would be           error of law) and when that error caused
executed – he rather argues that the court         the misguided sentence.
misunderstood the law.
                                                           Because      such      o b j e c t i v e ly
        King v. Hoke, 825 F.2d 720 (2d             ascertainable errors that a sentencing court
Cir. 1987), provides some guidance on that         has materially relied upon will always be
score. There the Second Circuit granted            of “constitutional ma gnitud e,” the
habeas relief where the sentencing court           appropriate test inquires whether (1) the
relied on a flawed understanding of the            district court made an objectively
law as to when the prisoner would be               ascertainable error (one that does not
eligible for parole (id. at 724-25). King,         require courts to probe the mind of the
id. at 725, distinguished Addonizio:               sentencing judge) and (2) the district court
                                                   materially relied on that error in
       In Addonizio the sentencing                 determining the appropriate sentence.7 If
       judge had made an incorrect                 the answer to both questions is “yes,” then
       prediction of how the Parole                – unless the record conclusively shows that
       Commission would exercise
       its discretion. By contrast,                   6
       in the pending case, the                           We note that Atehortua v. Kindt,
       sentencing judge made an                    951 F.2d 126, 129-30 (7th Cir. 1991),
       “objectively ascertainable                  contains a dictum that appears to look in
       error,” [Addonizio, 442                     the opposite direction. Atehortua
       U.S.] at 187, about King’s                  suggests that a petitioner may be out of
       minimum statutory parole                    luck even where the government, the
       eligibility date, a matter of               defendant and the district court judge
       law rather than a prediction                were all clearly mistaken about the
       concerning an agency’s                      parole consequences of a sentence based
       discretion.                                 on an improper application of the statute
                                                   governing parole.
We agree with King and hold that                      7
                                                           Framing the first part of the two-
Addonizio does not control where, as here,
                                                   prong test in this way states the material
a prisoner alleges that the district court
                                                   requirements for Section 2255 relief
made an error of law that can be
                                                   more succinctly, but it does not
                                                   materially change the analysis from our
                                                   earlier opinions.

                                               8
the prisoner is not entitled to relief – the        interpretation of its own legal authority,
prisoner is entitled to a hearing. And if the       and because the Bureau is not a party to
court determines after the hearing that the         this action, we prescind the question
error did indeed result in a miscarriage of         whether the Department of Justice’s view,
justice, it must vacate the sentence and            adopted by the Bureau, is correct. We
resentence the prisoner.                            rather assume arguendo that the Bureau
                                                    never had the legal authority to place
     Objectively Ascertainable Error                Eakman in a community confinement
                                                    center, so that the district court erred in
         Indisputably the district judge            believing differently. But it is certainly
believed the Bureau had the authority to            worth observing that if it were otherwise,
p l a c e E a km a n in a co m m unit y             the Bureau’s decision to repudiate its own
confinement center, for otherwise the               discretion under the statute would raise
judge’s recommendation to that effect               serious ex post facto concerns (U.S. Const.
would have been pointless. And if as the            art. I, § 9 cl. 3; see Culter, 241 F.Supp.2d
government contends the Bureau did not              at 24-25 n.6; Ashkenazi v. Attorney Gen.,
actually have the legal authority to assign         246 F.Supp.2d 1, 9 (D. D.C. 2003),
prisoners to community confinement                  vacated as moot, 346 F.3d 191, 192 (D.C.
centers, the judge clearly committed an             Cir. 2003)). 8 That clause protects against
error of law.        In that respect the            retroactive changes in the law that create
government misses the point in calling              “a sufficient risk of increasing the measure
upon Serafini, 233 F.3d at 777-78, and              of punishment attached to the covered
United States v. Jalili, 925 F.2d 889, 894          crimes” (Garner v. Jones, 529 U.S. 244,
(6th Cir. 1991), to urge that the district          250 (2000), quoting California Dep’t of
court’s recommendation cannot be used to            Corrections v. Morales, 514 U.S. 499, 509
invalidate Eakman’s sentence because it
had no binding authority, over the Bureau
as to the place of imprisonment. After all,            8
                                                            We are mindful that according to
Eakman does not contend that his sentence
                                                    United States v. Ferri, 686 F.2d 147, 158
violates due process because the Bureau
                                                    (3d Cir. 1982), we would lack
has ordered him to serve time at an
                                                    jurisdiction to decide the ex post facto
institutional prison despite the court’s
                                                    issue under Section 2255 – that Eakman
recommendation otherwise. Instead he
                                                    would rather have had to present such a
argues that a material misunderstanding of
                                                    claim via Section 2241. We raise the ex
the law (as plainly evidenced by the
                                                    post facto issue only to note that the
court’s recommendation) rendered his
                                                    government would likely have to travel a
sentencing proceeding invalid.
                                                    perilous road even if we were to reject
                                                    (as we have not for purposes of this
      Because neither Eakman nor the
                                                    opinion) the Bureau’s pronouncement of
government challenges the Bureau’s
                                                    its own legal authority.

                                                9
(1995)).                                            record before us unequivocally shows the
                                                    district judge did not contemplate the total
        Although the government takes the           absence of Bureau discretion, an absence
position that the Bureau’s former practice          as to which the parties now concur. We
was unlawful, it argues that the Bureau did         conclude that Eakman’s Section 2255
not change the applicable law when it               motion has sufficiently alleged that the
announced its new procedure, but merely             district judge made an objectively
conformed its practice to a number of               ascertainable error during his sentencing
holdings that “community confinement”               proceeding.
cannot constitute imprisonment under
United States Sentencing Guideline §                                  Reliance
5C1.1 (see, e.g., Serafini, 233 F.3d at 777-
78; United States v. Adler, 52 F.3d 20, 21                  As the government would have it,
(2d Cir. 1995) (per curiam); United States          Eakman must demonstrate (1) that the
v. Swigert, 18 F.3d 443, 445 (7th Cir.              Bureau made some express assurance to
1994); Jalili, 925 F.2d at 892-93)). But the        the district court that it would honor its
government does not suggest how that fact           recommendation to place Eakman in a
helps it respond to Eakman’s due process            community confinement center and (2) that
claim. No case of which we are aware has            the district court would have imposed a
ever relied on such a notion to deny a              lighter sentence had it not been misled.
collateral challenge to a sentence based on         We reject the notion that Section 2255
due process, for due process clearly                requires a petitioner to satisfy such an
guarantees all defendants the right to be           onerous burden – certainly not before the
sentenced under an accurate understanding           sentencing court conducts a hearing.
of the law (United States v. Barnhart, 980          Section 2255 is clear in its directive that
F.2d 219, 225 (3d Cir. 1992)).9 And the             the sentencing court must grant a prompt
                                                    hearing “[u]nless the motion and files and
                                                    records of the case conclusively show that
   9                                                the prisoner is not entitled to relief. . . .”
        Even in the ex post facto context
                                                    To be sure, a prisoner is not entitled to a
Weaver v. Graham, 450 U.S. 24, 29
                                                    hearing unless there is some basis in the
(1981), explains that “a law need not
                                                    record to support the prisoner’s contention
impair a ‘vested right’ to violate the ex
                                                    that the district court relied at least in part
post facto prohibition.” Instead the
absence of fair notice is the essential
inquiry under the Ex Post Facto Clause
(id. at 30). And as several district courts         some prisoners in community
have observed, the Bureau gave no                   confinement centers (see, e.g., United
advance warning that it would abruptly              States v. Serpa, 251 F.Supp.2d 988, 992
change its former practice, which had               (D. Mass. 2003) and Ashkenazi, 246 F.
been in place for decades, of placing               Supp. 2d at 7)).

                                               10
on bad information, and at the hearing the              entitled to no relief,” the statute expressly
prisoner retains the burden to demonstrate              compels a hearing to determine whether
that he is entitled to relief (see Barnes v.            the judge in fact relied upon his mistaken
United States, 579 F.2d 364, 366 (5th Cir.              belief that the Bureau had the discretionary
1978); Williams v. United States, 481 F.2d              authority to assign Eakman to a
339, 346 (2d Cir. 1973)). To that end it is             community confinement center.            We
enough for the prisoner to show that the                therefore remand the case to the district
district court paid sufficient heed to the              court to conduct a hearing as provided
error that the integrity of the sentencing              under Section 2255. Should the district
proceeding is called into doubt                         judge confirm such mistaken reliance, he
(Spiropoulos, 976 F.2d at 163; King, 725                is ordered to vacate Eakman’s current
F.2d at 724).                                           sentence and resentence him.

          There is plainly enough in the
record to entitle Eakman to a hearing. As
we have already discussed, the district
judge specifically recommended that the
Bureau place Eakman in a community
confinement center, with an obvious
awareness of the Bureau’s longstanding
p r a c ti c e o f e n t e rt a i n in g s u c h
recommendations. Clearly the district
judge acted under a legal misapprehension
– a belief in the existence of the Bureau’s
discretion in that respect. Indeed, the
district judge had already granted the
government’s motion under Guideline §
5K1.1 for a downward departure, and he
could have departed further had he been
properly informed of the Bureau’s lack of
discretion to assign Eakman to community
confinement.

                 Conclusion

       Eakman’s Section 2255 motion
sufficiently raises a constitutional question
about the fairness of his sentencing
proceeding. And because the record does
not “conclusively show that the prisoner is

                                                   11
