Orasama Andrews v. Warden ( 2020 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-12443
________________________
D.C. Docket No. 2:17-cv-00105-LGW-BWC
ORASAMA ANDREWS,
Plaintiff-Appellant
versus
WARDEN,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
________________________
(May 5, 2020)
Before WILLIAM PRYOR, JILL PRYOR, and LUCK, Circuit Judges.
WILLIAM PRYOR, Circuit Judge:
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This appeal requires us to interpret an executive grant of clemency that
President Barack Obama issued to Orasama Andrews. In 2003, Andrews was
sentenced to a term of 37 months of imprisonment followed by a term of
supervised released for distributing crack cocaine. After serving the 37-month term
of imprisonment, and while on supervised release, Andrews was again charged
with distributing crack cocaine. For that new offense, the district court sentenced
Andrews to imprisonment for life. The district court also revoked Andrews’s
supervised release and imposed a consecutive term of 24 months of imprisonment.
Andrews later applied to President Obama for clemency for his second crack-
cocaine conviction, and the President “commute[d] the total sentence of
imprisonment” that Andrews was “now serving to a term of 188 months’
imprisonment.” The Bureau of Prisons recalculated Andrews’s release date and
determined that he was then serving both the life term and the 24-month term, so it
apportioned the 188 months between the two terms accordingly—164 months and
24 months—and credited Andrews for the time served in prison on these terms.
Andrews then filed a petition for a writ of habeas corpus, 28 U.S.C. § 2241, and
alleged that President Obama commuted his “total sentence” of imprisonment,
which included the 37 months of imprisonment that he served as part of his 2003
sentence. Andrews argued that the Bureau should have credited him with time
spent in prison for the life term, the 24-month term, and the 37-month term, which
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yields an earlier release date than the date the Bureau calculated. The district court
disagreed and denied the petition. We affirm that denial.
I. BACKGROUND
In 2003, Andrews pleaded guilty to one count of distributing crack cocaine
and received a sentence of 37 months of imprisonment, three years of supervised
release, and a $100 penalty. See 21 U.S.C. § 841(a)(1), (b)(1)(C) (2000 & Supp.
2003). While on supervised release, Andrews returned to drug dealing and was
convicted of one count of distributing five grams or more of crack cocaine and one
count of distributing 50 grams or more of crack cocaine. See 21 U.S.C.
§§ 841(a)(1), (b)(1)(A)(iii), (b)(1)(B)(iii), 851(a) (2006 & Supp. 2009). So in 2009,
a Georgia district court sentenced Andrews to concurrent terms of life
imprisonment, ten years of supervised release, and a $200 penalty. Because
Andrews’s new conviction violated the conditions of his supervised release, the
district court then revoked the term of supervised release and imposed a term of 24
months of imprisonment to run consecutively to his life term. That is, the district
court ordered the 24-month term of imprisonment to commence after completion
of the life term.
Andrews later applied to President Obama for clemency. He completed the
standard petition for commutation created by the Office of the Pardon Attorney
within the Department of Justice. See 28 C.F.R. § 1.1; Fed. Bureau of Prisons, U.S.
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Dep’t of Justice, Program Statement No. 1330.15, Subject: Commutation of
Sentence, Petition for (2001). That petition required the applicant to list the
“Offense(s) For Which Commutation Is Sought.” Andrews listed and described
only the new crack-cocaine offenses—the offenses he committed while on
supervised release.
President Obama signed an executive grant of clemency for Andrews and 28
other federal prisoners on December 19, 2016. For Andrews and two other
prisoners, President Obama reduced their sentences of imprisonment to 188
months of imprisonment:
I hereby further commute the total sentence of imprisonment each of
the following named persons is now serving to a term of 188 months’
imprisonment, leaving intact and in effect for each named person the
term of supervised release imposed by the court with all its conditions
and all other components of each respective sentence. I also direct the
Bureau of Prisons to make available to each named person the
Residential Drug Abuse Program (RDAP), or future equivalent
program, at an appropriate time before each person’s sentence expires.
Further, I condition the grant of commutation to each of the following
named persons on that person enrolling in the RDAP program by
written agreement, as evidenced by that person’s signing, within 14
days of that person’s receipt of a certified copy of this document, a
receipt verifying his or her acceptance of the commutation granted with
all of its conditions, including enrollment in RDAP.
The commutation order became effective “only upon” Andrews’s signed
acceptance. President Obama “further direct[ed] . . . the Office of the Pardon
Attorney [to] deliver [a signed] copy to appropriate personnel in the Bureau of
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Prisons Designation and Sentence Computation Center, who will recalculate
[Andrews’s] projected release date[.]”
The President’s grant of clemency and a description of it is publicly
available on the website of the office of the United States Pardon Attorney. See
Office of the Pardon Att’y, Commutations Granted by President Obama (2009–
2017), U.S. Dep’t of Justice (last updated July 11, 2018), https://www.justice.gov/
pardon/obama-commutations##DEC192016. The website describes Andrews’s
commuted offenses as the two counts supporting the second cocaine conviction
and the “[s]upervised release violation.” Id. And it lists his sentence for these
offenses as “Life Imprisonment” and “24 months’ imprisonment (consecutive).”
Id.
After Andrews signed and accepted the commutation order, the Computation
Center used its standard policies to calculate Andrews’s release date. When a
prisoner is serving multiple sentences, the Computation Center treats, “for
administrative purposes,” all the sentences “as a single, aggregate term of
imprisonment.” 18 U.S.C. § 3584(c); see also Fed. Bureau of Prisons, U.S. Dep’t
of Justice, Program Statement No. 5880.28, Subject: Sentence Computation
Manual (CCA of 1984), at 11–12 (1999). At the time of the commutation order,
Andrews had two uncompleted terms of imprisonment, the life term and the 24-
month term. So the Computation Center divided Andrews’s commuted sentence of
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188 months of imprisonment between these terms, reducing the life term to 164
months and retaining the 24-month term. That calculation yielded a projected
release date of June 16, 2022.
The Computation Center did not credit Andrews with the 37 months he
served on the 2003 sentence before he violated his supervised release. The
Computation Center viewed the 37-month term and the later 24-month term as
separate terms of imprisonment arising from the same conviction. It concluded that
the commutation order did not reach the 37-month term because Andrews had
completed that term of imprisonment before President Obama issued the
commutation order.
Andrews disagreed with this calculation and filed a petition for a writ of
habeas corpus, 28 U.S.C. § 2241, to challenge it. He argued that the Computation
Center should have credited him for the 37 months served on the 2003 sentence.
After holding a hearing, the district court denied the petition. It explained that,
although the 24-month term of imprisonment was part of the original 2003
sentence, Andrews “was ‘now serving’ a new and separate term of imprisonment”
distinct from the 37-month term of imprisonment.
II. STANDARD OF REVIEW
When reviewing the denial of a petition for a writ of habeas corpus, we
review de novo questions of law and for clear error factual findings. Coloma v.
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Holder, 445 F.3d 1282, 1284 (11th Cir. 2006). “We may affirm for any reason
supported by the record.” United States v. Bane, 948 F.3d 1290, 1294 (11th Cir.
2020) (alteration adopted) (internal quotation marks omitted).
III. DISCUSSION
Andrews contends that the Bureau should include the 37-month term of
imprisonment that he served on his first sentence in its recalculation of his release
date, but we disagree. Based on the terms of the commutation order, the
Constitution, and Supreme Court precedent, we cannot say that the Bureau erred in
excluding the 37-month term of imprisonment from its recalculation.
The Constitution grants the Executive the “Power to grant Reprieves and
Pardons for Offences against the United States.” U.S. Const. art. II § 2, cl. 1.
Because the greater power ordinarily includes the lesser power, the President’s
pardon power includes the authority to commute a sentence to a lesser punishment.
See Schick v. Reed, 419 U.S. 256, 265–66 (1974); Biddle v. Perovich, 274 U.S.
480, 486–87 (1927). The Framers vested this power in the President because it is
part and parcel with the power to execute the laws and operates as a check on the
other two branches. See United States v. Wilson, 32 U.S. (7 Pet.) 150, 160 (1833)
(“A pardon is an act of grace, proceeding from the power entrusted with the
execution of the laws . . . .”); Ex parte Grossman, 267 U.S. 87, 120–21 (1925)
(“Executive clemency exists to afford relief from undue harshness or evident
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mistake in the operation or enforcement of the criminal law. . . . It is a check
entrusted to the executive for special cases.”); Rachel E. Barkow, Clemency and
Presidential Administration of Criminal Law, 90 N.Y.U. L. Rev. 802, 829–32,
836–40, 850 (2015). And, as Alexander Hamilton explained, vesting that power in
“a single” individual naturally increases “the sense of responsibility” to ensure
“mercy” is dispensed “scrupulous[ly] and cautio[usly].” The Federalist No. 74, at
385 (Alexander Hamilton) (George W. Carey & James McClellan eds., 2001).
The Constitution places few restrictions on the Executive’s pardon power. It
empowers the President to pardon only “Offences against the United States” and
constrains the President from exercising the power “in Cases of Impeachment.”
U.S. Const. art. II § 2, cl. 1. Otherwise, the President possesses a “broad power” to
“‘forgive’ the convicted person in part or entirely, to reduce a penalty in terms of a
specified number of years, or to alter it with conditions.” Schick, 419 U.S. at 266.
So long as the President does not use the power to pardon to violate another
provision of the Constitution, Congress and the Judiciary have no power to
interfere with its exercise. Id. at 264, 266–67; see also Ohio Adult Parole Auth. v.
Woodard, 523 U.S. 272, 276 (1998) (“[P]ardon and commutation decisions have
not traditionally been the business of courts; as such, they are rarely, if ever,
appropriate subjects for judicial review.” (internal quotation marks omitted)).
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The Constitution also vests in the Executive the power to execute the laws.
See U.S. Const. art. II § 1, cl. 1; id. § 3; Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579, 587 (1952). To be sure, the Executive acts through subordinates in
carrying out the law, whether by prosecuting its violations or effecting its
punishments. For example, “[a]fter a district court sentences a federal offender, the
Attorney General, through the [Bureau of Prisons], has the responsibility for
administering the sentence.” United States v. Llewlyn, 879 F.3d 1291, 1295 (11th
Cir. 2018) (emphasis omitted) (internal quotation marks omitted). But the
responsibility for effecting these powers and duties lies with the President. The
Federalist No. 70, supra, at 362–63, 369 (Alexander Hamilton) (“Energy in the
executive is . . . essential to the steady administration of the laws[.] . . . The
ingredients which constitute energy in the executive [include] unity[.]”).
In many ways, the pardon power represents the convergence of some of the
Executive’s various powers. When the President issues a commutation order for a
judicially imposed sentence, he does not issue an “executive sentence,” Dennis v.
Terris, 927 F.3d 955, 959 (6th Cir. 2019), but instead “reduc[es] the terms of a
sentence already imposed,” Hagelberger v. United States, 445 F.2d 279, 280 (5th
Cir. 1971); see also Duehay v. Thompson, 223 F. 305, 307 (9th Cir. 1915). “To cut
short a sentence by an act of clemency is an exercise of executive power which
abridges the enforcement of the judgment, but does not alter it qua judgment.”
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United States v. Benz, 282 U.S. 304, 311 (1931). So the commutation order affects
only how the sentence will be carried out, and “carry[ing] the judgment into effect
is an executive function.” Id. In other words, the Executive commutes the sentence
that it executes. And again, absent a violation of the Constitution, the commutation
order is insulated from congressional and judicial interference. See Schick, 419
U.S. at 264, 266–67; Dennis, 927 F.3d at 959.
The President has long relied on executive officers to administer pardons.
For some time after the ratification of the Constitution, the President used an
informal process for pardons. See Barkow, supra, at 813. Although individuals
often wrote directly to the President seeking mercy, the President also relied on the
Secretary of State and Attorney General for review and advice. See id. at 813–14 &
n.65; Margaret Colgate Love, The Twilight of the Pardon Power, 100 J. Crim. L. &
Criminology 1169, 1175–76 (2010). In the late 1800s, the Attorney General
became the main adviser to the President concerning the issuance of pardons when
President Grover Cleveland “transferred authority to issue pardon warrants to the
Justice Department by executive order.” Love, supra, at 1176–80 & n.25; see also
Joanna M. Huang, Note, Correcting Mandatory Injustice: Judicial
Recommendation of Executive Clemency, 60 Duke L.J. 131, 143 n.66 (2010).
Eventually, the Office of the Pardon Attorney was created within the Department
of Justice and assumed responsibility for advising the President on clemency
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petitions. See Office of the Pardon Att’y, Frequently Asked Questions, U.S. Dep’t
of Justice (last updated Dec. 14, 2019), https://www.justice.gov/pardon/frequently-
asked-questions; Love, supra, at 1176–80. And that office continues to fill that role
today. See Office of the Pardon Att’y, Frequently Asked Questions, supra; see also
28 C.F.R. §§ 1.1–1.11 (regulating the process of Executive Clemency).
Ordinarily, the President relies on the Department of Justice—specifically,
the Attorney General and Office of the Pardon Attorney—to administer the pardon
process. See Office of the Pardon Att’y, Frequently Asked Questions, supra; see
also 28 C.F.R. §§ 1.1–1.11. Indeed, in his pardon of Andrews, President Obama
“designate[d], direct[ed], and empower[ed] the Pardon Attorney, as [his]
representative, to deliver to the Bureau of Prisons a certified copy of the
[commutation order] . . . in order to carry into effect the terms of th[is] grant[] of
clemency.” And he committed the recalculation of Andrews’s sentence to the
Bureau of Prisons, another part of the Department of Justice. See Fed. Bureau of
Prisons, Program Statement No. 1330.15, supra, at 5 (“If a petition for
commutation of sentence is granted, institutional staff shall recalculate the inmate’s
sentence in accordance with the terms of the commutation order.”). That decision
makes sense because the Bureau executes sentences in the regular course of
business on behalf of the President. See Llewlyn, 879 F.3d at 1295.
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The Supreme Court has ruled that deference should be accorded to an
executive agency’s interpretation of an executive order it is charged with
administering. Udall v. Tallman, 380 U.S. 1, 4, 16–18 (1965); see also Matthew
Chou, Agency Interpretations of Executive Orders, 71 Admin. L. Rev. 555, 575–89
(2019) (exploring possible justifications for deferring to executive agency
interpretations of executive orders). The Court explained that if an agency’s
“interpretation is not unreasonable” and “the language of the order[] bears [its]
construction,” “courts must . . . respect it.” Udall, 380 U.S. at 4, 18. Although
deference to agencies in other contexts engenders debate, see, e.g., Kisor v. Wilkie,
139 S. Ct. 2400, 2425 (2019) (Gorsuch, J., concurring in the judgment), deference
to an agency’s interpretation is sensible in this context, where a court cannot even
review a pardon that a recipient has not presented to it, see Wilson, 32 U.S. at 161–
63 (explaining that “where the benefit [of a pardon] is to be obtained through the
agency of the court, [the pardon] must be brought regularly to the notice of that
tribunal”).
The text of President Obama’s commutation order governs our review. See
Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal
Texts § 2, at 56 (“The words of a governing text are of paramount concern, and
what they convey, in their context, is what the text means.”); cf. Ross v. Blake, 136
S. Ct. 1850, 1856 (2016). We can neither enlarge nor cabin the commutation order;
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we must evaluate only whether the commutation order supports the Bureau’s
calculation. See Schick, 419 U.S. at 264, 266–67; Dennis, 927 F.3d at 959.
Andrews argues that we should give no deference to the Bureau’s
interpretation, but even if we considered only the plain text of the commutation
order, Andrews would not be entitled to relief. The text of the commutation order
suggests that President Obama commuted only Andrews’s term of life
imprisonment. And the Bureau’s more generous interpretation, which is entitled to
deference, is reasonable.
President Obama “commute[d] the total sentence of imprisonment
[Andrews] is now serving to a term of 188 months’ imprisonment.” “Now” means
“at the present time or moment.” Now, Merriam-Webster Online (last visited Apr.
27, 2020), https://www.merriam-webster.com/dictionary/now. So the text states
that President Obama commuted only the sentence Andrews was serving when the
commutation order issued. And Andrews was serving only one sentence at the time
of the commutation order—his sentence for his second conviction. He was not
serving any part of his original sentence when President Obama issued the
commutation order. The term of imprisonment imposed for Andrews’s violation of
supervised release ran consecutively to the term of life imprisonment for his second
conviction. See Consecutive Sentences, Black’s Law Dictionary (11th ed. 2019)
(“Two or more sentences of jail time to be served in sequence. . . . Also termed . . .
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back-to-back sentences[.]” (emphasis added)); United States Sentencing
Guidelines Manual § 7B1.3(f) (Nov. 2009) (“Any term of imprisonment imposed
upon the revocation of . . . supervised release shall be ordered to be served
consecutively to any sentence of imprisonment that the defendant is serving . . . .”
(emphasis added)). Andrews had not yet begun to serve the 24-month term of
imprisonment when President Obama issued the commutation order. That reading
makes even more sense when one considers that Andrews applied for commutation
of only one sentence: the sentence imposed for his second conviction. His
application mentioned only that conviction and asked for relief for only that
conviction.
That President Obama used the phrase “total sentence” does not necessarily
suggest a contrary reading. Andrews received his commutation as part of a single
order granting commutation to 29 prisoners. The language used to confer
commutation to each prisoner is nearly identical in its opening language: “I hereby
[further] commute the total sentence of imprisonment each of the following named
persons is now serving to . . . .” These 29 prisoners were serving a variety of
sentences, some concurrent and some consecutive. See Office of the Pardon Att’y,
Commutations Granted by President Obama, supra. Indeed, Andrews’s sentence
for his second conviction included concurrent terms of life imprisonment for his
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two counts of distributing crack cocaine. So the use of the word “total” can be
understood to cover prisoners with concurrent terms of imprisonment.
The Bureau read the commutation order more generously in favor of
Andrews, and its reading is both reasonable and entitled to deference. See Udall,
380 U.S. at 4, 16–18. It concluded that Andrews was “now serving” both the life
term of imprisonment and the consecutive 24-month term of imprisonment. It
understood the commutation order to operate within the context of the Bureau’s
longstanding policies and statutes. “[F]or administrative purposes,” the Bureau, by
statute and by policy, treats “[m]ultiple terms of imprisonment ordered to run
consecutively or concurrently . . . as a single, aggregate term of imprisonment.” 18
U.S.C. § 3584(c); Fed. Bureau of Prisons, Program Statement No. 5880.28, supra,
at 11–12. That is, “[a]s a practical matter,” whether a court orders multiple
sentences to run consecutively or concurrently “makes no difference” because the
Bureau aggregates the sentences when allotting credit for time served and
calculating release dates. United States v. Gonzales, 520 U.S. 1, 8 (1997). Because
the Bureau treats multiple sentences as if all are being served simultaneously for
administrative purposes, it read President Obama’s commutation order in the light
of these ordinary practices and divided the 188-month commutation between the
life term and the 24-month term.
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Andrews has no problem with that interpretation by the Bureau, insofar as it
acknowledges that he was serving his 24-month term at the time of the
commutation order. But Andrews argues that President Obama commuted his
“total sentence of imprisonment” and that the new 24-month term of imprisonment
was not a new sentence but a continuation of his original sentence of 37 months of
imprisonment. Andrews relies on precedent explaining that a term of imprisonment
imposed for violating conditions of supervised release is not a new sentence but is
instead part of the original sentence for the underlying crime. See Johnson v.
United States, 529 U.S. 694, 700–01 (2000) (“[P]ostrevocation penalties relate to
the original offense” and are “part of the penalty for the initial offense . . . . We
therefore attribute postrevocation penalties to the original conviction.”); United
States v. Romines, 204 F.3d 1067, 1069 (11th Cir. 2000); United States v. Woods,
127 F.3d 990, 992 (11th Cir. 1997) (“[R]evocation . . . constitutes a modification
of the terms of the original sentence . . . .”).
The government does not disagree that a term of imprisonment imposed for
violating the conditions of supervised release is part of the original sentence. But it
contends that the Bureau could reasonably understand that the term of
imprisonment imposed for the violation is distinct from the term of imprisonment
imposed for the initial crime. In short, the new term of imprisonment does not
“resurrect” the original term; it is a separate component of the sentence. And when
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President Obama commuted the “total sentence of imprisonment” that Andrews
was “now serving,” he commuted only the life and 24-month terms.
“A criminal sentence is a package of sanctions that the district court utilizes
to effectuate its sentencing intent.” Pepper v. United States, 562 U.S. 476, 507
(2011) (quoting United States v. Stinson, 97 F.3d 466, 469 (11th Cir. 1996)). That
is, “sentence” refers to all sanctions imposed for a crime, and a sentence can have
multiple components, including imprisonment, supervised release, and fines. See
18 U.S.C. §§ 3571, 3581, 3583. Federal law, 18 U.S.C. § 3583(e), allows the
reimprisonment of defendants who violate conditions of supervised release even
when they were initially sentenced to the statutory maximum term. United States v.
Proctor, 127 F.3d 1311, 1313 (11th Cir. 1997). For example, a defendant might
initially be sentenced to the statutory maximum term of 15 years of imprisonment
and to a term of two years of supervised release. Upon completing his 15-year term
of imprisonment, the defendant might then commit another crime a year into
serving his supervised release. A district court would be well within its power to
order that defendant to serve the remainder of his supervised release in prison,
which would be a term of imprisonment that is part of his original sentence but not
his original term of imprisonment. 18 U.S.C. § 3583(e)(3); Johnson, 529 U.S. at
700–01. That defendant would then serve 16 years in prison despite that the
statutory maximum for his underlying crime allowed for only 15 years of
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imprisonment. The terms of imprisonment are distinct components of his sentence.
See Johnson, 529 U.S. at 712 (describing reimprisonment after revocation of
supervised release as a “new prison term”); United States v. Haymond, 139 S. Ct.
2369, 2374 (2019) (same); Romines, 204 F.3d at 1069 (describing reimprisonment
after revocation of supervised release as an “additional penalty”).
The Bureau reasonably read “sentence of imprisonment” synonymously with
“term of imprisonment.” As precedent establishes, “sentence” refers to the full
panoply of punishments imposed for a crime, not only the term of imprisonment.
See Pepper, 562 U.S. at 507; United States v. Gonzalez, 541 F.3d 1250, 1256–57
(11th Cir. 2008) (vacating entirety of sentence because the district court imposed a
fine without explaining its basis for doing so and remanding for a full
resentencing). The commutation order reflects that understanding when it states
that, besides the imprisonment component, the commutation order did not affect
any “other components of each respective sentence.” That various statutes
governing the administration of sentences often use these two phrases
interchangeably buttresses that interpretation. See 18 U.S.C. § 3581 (entitled
“Sentence of Imprisonment” and allowing a district court to “sentence[] [a
defendant] to a term of imprisonment”); id. § 3582 (entitled “Imposition of a
sentence of imprisonment” and containing the “[f]actors to be considered in
imposing a term of imprisonment” and the constraints on “[m]odif[ying] an
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imposed term of imprisonment”); id. § 3584 (entitled “Multiple sentences of
imprisonment” and explaining when “multiple terms of imprisonment” are to run
concurrently or consecutively); cf. id. § 3571 (entitled “Sentence of fine” and
allowing a district court to “sentence[] [a defendant] to pay a fine”).
The President, like Congress, is presumed to know the law and to speak in
terminology that subordinate officials would understand. Cf. White v. Mercury
Marine, 129 F.3d 1428, 1434 (11th Cir. 1997) (explaining that we ordinarily
presume that Congress “act[s] with the knowledge of existing law and
interpretations when it passes new legislation”); Scalia & Garner, Reading Law
§ 54, at 323 (“[W]hen a statute uses the very same terminology as an earlier
statute—especially in the very same field . . .—it is reasonable to believe that the
terminology bears a consistent meaning.”). The Bureau reasonably understood the
phrases “total sentence of imprisonment” and “now serving” to refer to only the
“terms of imprisonment” Andrews was then serving. And, at most, Andrews was
serving the life and 24-month terms of imprisonment.
IV. CONCLUSION
We AFFIRM the denial of Andrews’s petition.
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JILL PRYOR, Circuit Judge, concurring specially:
I concur in the result only.
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