Robert J. Andrino v. United States Board of Parole

Petitioner was convicted in 1972 of extortion and firearms offenses and sentenced to two five-year concurrent terms and twelve two-year terms to run concurrently with each other and consecutively to the five-year terms. We upheld Andrino’s convictions and he began to serve his seven year sentence in November 1974.

The Board of Parole published new policy guidelines between the time of Andrino’s sentence and his incarceration. 28 C.F.R. § 2.1 et seq. (1974). At his initial parole hearing these were applied and he was found ineligible for parole. His case was continued for 36 months, the maximum period permitted under the regulations at the time. 28 C.F.R. § 2.14 (d) (1974).

Andrino filed a motion for modification of sentence under 28 U.S.C. § 2255 in November 1975. He contended that the district court would not have imposed the same sentence had it known the parole guidelines would be applied to postpone his parole. The district court, after a hearing, relied upon Kortness v. United States, 514 F.2d 167 (8th Cir. 1975), and modified the sentence so that all sentences would be served concurrently. The Government appeals.

In Kortness v. United States, supra, the Eighth Circuit…