Opinion
No. 3:00-CV-2531-G
March 27, 2002
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b) and an Order of the Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge are as follows:
FINDINGS AND CONCLUSIONS
I. Background Nature of the Case: This is a petition for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2241.
Parties: Petitioner is federal inmate currently confined in Seagoville, Texas. Respondent is the United States Parole Commission.
Statement of the Case: Petitioner is currently sewing an aggregate thirty-five year sentence for military convictions of attempted robbery, assault with a dangerous weapon, and burglary with intent to commit larceny. (Sentence Monitoring Computation Data, attached as Ex. A to Resp. to Pet.) On February 23, 2000, he received a parole hearing pursuant to 18 U.S.C. § 4205. A Parole Examiner applied 28 C.F.R. § 2.20 and 2.36 to determine petitioner's aggregate presumptive guideline range to be 60 to 106 months. ( See Initial Hr'g Summ. at 1, attached as Ex. D to Resp. to Pet.) The Examiner assigned petitioner an offense severity rating of seven and a salient factor score of nine. ( Id.) The Examiner also determined that a number of aggravating factors warranted an upward departure from the guidelines. ( Id. at 4.) The examiner recommended that petitioner be released on September 15, 2001, after serving 126 months. ( Id.) Upon administrative review, an Executive Hearing Examiner recommended that petitioner serve 180 months before being released. ( Id.)
The regulations that govern parole decisions for federal inmates provide "guidelines" that "indicate the customary range of time to be served before release for various combinations of offense (severity) and offender (parole prognosis) characteristics." See 28 C.F.R. § 2.20(b). The guidelines cross-reference offender characteristics that establish a parole prognosis (as shown by the salient factor score) with offense characteristics that set the severity of the offense behavior (as shown by the offense severity rating) to arrive at a range of months a particular prisoner should typically serve before being released on parole. Id. § 2.20. "For criminal behavior committed while in confinement" 28 C.F.R. § 2.36 provides "Rescission Guidelines." See id. § 2.20(i).
On March 7, 2000, the Parole Commission concurred with the recommendation of the Executive Hearing Examiner and ordered that petitioner be paroled on December 18, 2005, after serving 180 months. (Notice of Action at 1, attached as Ex. E to Resp. to Pet.) On April 25, 2000, petitioner appealed the Commission's decision to the National Appeals Board. ( See Letter from Broome to Board Members of 4/25/00, attached as Ex. F to Resp. to Pet.) On July 13, 2000, the Board affirmed the decision. ( See Notice of Action on Appeal, attached as Ex. G to Resp. to Pet.)
Petitioner thereafter filed this action in federal court. Respondent filed a response and, at the direction of the Court, supplemented the record. Petitioner filed a traverse.
II. Issues Presented
Petitioner claims it is unlawful for the Commission to upwardly depart from the presumptive guidelines based solely on its determination of the seriousness of the statutory offense for which he was convicted. He also claims that its decision is arbitrary and capricious, an abuse of discretion, and in excess of its statutory authority. He specifically argues that the Commission improperly applied 28 C.F.R. § 2.20 and 2.36, as well as 28 C.F.R. § 2.60. He also appears to challenge the offense severity rating he received, although it is not entirely clear if he is making such challenge.
Petitioner contends that respondent misapplied 18 U.S.C. § 4203(a) with regard to offender characteristics, but that section does not relate to offender characteristics. "Offender characteristics" are assessed under a prisoner's "salient factor score." See Shahid v. Crawford, 599 F.2d 666, 668 n. 2 (5th Cir. 1979). The salient factor score, furthermore, "serves as an aid in determining the parole prognosis (potential risk of parole violation)" under 28 C.F.R. § 2.20. Therefore, the Court construes this assertion as alleging a misapplication of 28 C.F.R. § 2.20.
Petitioner also contends that respondent misapplied 18 U.S.C. § 4202 with regard to "Institutional performance." That section has nothing to do with institutional performance. Petitioner's institutional performance is, however, relevant to advancing a presumptive parole date pursuant to 28 C.F.R. § 2.60 and for expanding the guideline range for conduct under 28 C.F.R. § 2.36. The Court therefore construes this claim as a misapplication of 28 C.F.R. § 2.60 and as a further alleged misapplication of 28 C.F.R. § 2.36.
III. Applicable Law
"Congress has given the Parole Commission absolute discretion concerning matters of parole." Maddox v. United States Parole Comm'n, 821 F.2d 997, 999 (5th Cir. 1987). In making parole determinations, the "Commission may use all relevant, available information." Id. The Commission may parole a prisoner if his "release would not depreciate the seriousness of his offense or promote disrespect for the law; and . . . would not jeopardize the public welfare." 18 U.S.C. § 4206(a)(2001) (repealed but remains effective for fifteen years from Nov. 1, 1987). It may also deny early release for "good cause" as long as it provides the prisoner "written notice stating with particularity the reasons for its determination, including a summary of the information relied upon." Id. § 4206(c). It may also "go outside its guidelines" for "good cause" provided it gives the notice required by § 4206(c). Maddox, 821 F.2d at 1000.
In conducting habeas review, federal courts "cannot disturb a decision by the Commission setting the time for parole release absent a showing that the action is `flagrant, unwarranted, or unauthorized.'" Maddox v. United States Parole Comm'n, 821 F.2d 997, 1000 (5th Cir. 1987). It is not the function of the courts "to review the discretion of the Board in the denial of application for parole or to review the credibility of reports and information received by the Board in making its determination." Id. at 999-1000. As long as the Commission observed due process requirements and "acted within its statutory authority," the courts "will not usurp Commission's position as established in the statutory scheme enacted by Congress." Id. at 1000. The courts give "extreme deference" to the conclusions of the Parole Commission and "review them only to determine `whether there is `some evidence' in the record to support the Commission's decision.'" Simpson v. Ortiz, 995 F.2d 606, 608 (5th Cir.) (quoting Maddox, 821 F.2d at 1000), cert. denied, 510 U.S. 983, 114 S.Ct. 486, 126 L.Ed.2d 436 (1993).
IV. Discussion
In Broome's case, there is evidence in the record to support the decision of the Commission. It rated the severity of petitioner's offense as a seven. Petitioner was convicted of attempted robbery, assault with a dangerous weapon, and burglary. The assault with a dangerous weapon occurred during the attempted robbery of a grocery store. As he exited from the scene of the attempted robbery, petitioner accidently shot a female customer in the shoulder and in her hand. Evidence of record supports the offense severity rating of seven. The regulations provide for such a rating for assaults that occur during the commission of another offense, "[i]f serious bodily injury results." 28 C.F.R. § 2.20 (U.S. Parole Commission Offense Behavior Severity Index, Ch. 2, Subch. B, § 211(a); footnote omitted). The regulations define "Serious bodily injury" as an "injury creating a substantial risk of death, major disability or loss of a bodily function, or disfigurement." Id. (Ch. 13, Subch. B, § 16). The evidence shows that the assault occurred during the commission of another offense, i.e. the attempted robbery. The evidence also shows a resulting serious bodily injury — gunshot wounds to the shoulder and hand. Therefore, it cannot be said that there is no evidence to support giving petitioner's offense a severity rating of seven.
Petitioner makes extensive arguments that the record does not accurately reflect what happened in the course of the attempted robbery. He claims that the record omits certain facts relating to the events at the grocery store, such as that the store manager also had a gun and, thus, according to petitioner forced his actions. However, in reviewing the Commission's actions the Court is not authorized to consider matters outside the administrative record. It determines only whether there is "some evidence" in the record to support the decision of the Commission. The omitted facts, furthermore, do not detract from a conclusion that there is "some evidence" to support the Commission's decision.
The Commission also gave petitioner a salient factor score of nine. A score of eight to ten constitutes a "very good" prognosis for parole. 28 C.F.R. § 2.20 (guidelines for decisionmaking). Petitioner does not quarrel with his salient factor score, nor could he. The Commission gave him the best prognosis available. The difference between a salient factor score of nine and ten makes no difference to the determination of the customary time to be served before release on parole. See id.
The Commission cross-referenced the offense severity rating of seven with the salient factor score of nine and determined that the guidelines provide for a presumptive range of fifty-two to eighty months to be served before release on parole. That determination is fully supported by the regulations. See 28 C.F.R. § 2.20.
The regulations also provide that one must look to 28 C.F.R. § 2.36 for the effect that "criminal behavior committed while in confinement" has on the presumptive guideline range. See 28 C.F.R. § 2.20(i). In this instance, the Commission properly applied § 2.36. It added zero to ten months to the guideline range for five incident reports during Broome's period of military confinement: (1) larceny; (2) disrespect; (3) attempted trafficking of a magazine; (4) breach of place; and (5) communicating threats. Section 2.36(a)(1) provides that "Administrative Rule Infraction(s) . . . normally can be adequately sanctioned by postponing a presumptive or effective date by 0-60 days per instance of misconduct." Since he admitted the above rule infractions, evidence of record clearly supports the addition of zero to ten months, i.e. zero to sixty days for each of the five instances of misconduct, to the presumptive guideline range.
The Commission also added eight to sixteen months to the presumptive range for an attempted escape by petitioner which also took place while he was in military custody. Section 2.36(a)(2)(i)(A) provides for such an addition for an attempted escape. As petitioner admitted the attempted escape, evidence of record clearly supports an additional eight to sixteen months to the presumptive release range.
After making the additions in accordance with 28 C.F.R. § 2.36, the Commission determined the presumptive release range to be 60 to 106 months. For all the reasons already stated, evidence of record supports that determination.
The Commission also determined, however, that a number of aggravating factors warranted an upward departure from the presumptive guideline range. The Parole Examiner stated:
This case has a number of aggravating features that are not properly counted for in the guidelines, in the opinion of this examiner. This prisoner committed an armed robbery and fired a shot to scare his victims after his request for money was refused. Following that, he grabbed a customer in the store and used that customer as a hostage to make good his escape out the front door of the business. During this, the customer tripped and fell and subject accidently discharged his firearm, shooting the customer. There is no full description of the injuries suffered by the customer but it surely would meet the test for serious bodily injury and substantial risk of death had the shot hit the person somewhere other than in the shoulder.
Additionally, subject's burglary involved the illegal entry of 32 separate soldier quarters in a barracks building. Because of these aggravating factors, a decision further above the guidelines . . . is being recommended.
(Initial Hr'g Summ. at 4.) On subsequent review, an Executive Hearing Examiner agreed with these aggravating factors, "but also note[d] that the cusotmers [sic] and employees were out of harm's way when he pursued them to the back of the store and took the ultimate victim of the shooting as a hostage." ( Id.) The Executive Hearing Examiner further noted that petitioner "could have left the store at any point with no harm to the victims but his actions resulted in a person being shot at point blank range." ( Id.)
The Commission, furthermore, specifically explained to petitioner that a departure above the guideline range of 60 to 106 months was
warranted because your offense behavior involved the following aggravating factors: You fired your weapon on two occasions during an armed robbery once on a deliberate attempt to scare your victim and once by accident that resulted in the shooting of a victim. Also, your burglary involved the illegal entry of 32 individual military living quarters.
( Id.) The National Appeals Board provided the following corrected reason for the upward departure:
After review of all relevant factors and information presented, a decision above the guidelines appears warranted because your offense behavior involved the following aggravating factors: You fired your weapon on two occasions during an armed robbery, once in a deliberate attempt to scare your victim and once by accident that resulted in the shooting of a victim; further, you pursued the store customers to the back of the store. Also, your burglary involved the illegal entry of 32 individual military living quarters.
(Notice of Action on Appeal.)
Petitioner argues that respondent may not upwardly depart from the guideline range based upon reasons already used to determine such range. The National Appeals Board specifically rejected this argument. ( See Notice of Action Taken on Appeal.) It noted that petitioner's offense severity rating was rated a seven, because "it involved a robbery during which a victim was shot receiving serious bodily injury and burglary." ( Id.; see also, Notice of Action.) It then provided its corrected reason for the upward departure. ( See Notice of Action Taken on Appeal.)
The regulations specifically state that the "time ranges are merely guidelines" and [w]here the circumstances warrant, decisions outside of the guidelines (either above or below) may be rendered." 28 C.F.R. § 2.20(c). The Commission, moreover, is statutorily permitted to depart from its guidelines for "good cause." See 18 U.S.C. § 4206(c). In this instance, the Commission did not exceed its authority by its upward departure. Under the facts of this case, the Parole Commission had good cause to upwardly depart from the presumptive guideline range.
Further, there is ample evidence in the record supporting the upward departure. Petitioner's burglary offense involved the illegal entry of thirty-two individual military living quarters. His attempted robbery offense, furthermore, involved petitioner deliberately firing his gun in an attempt to scare his victim, which preceded the accidental discharge of his weapon.
Petitioner's attempted robbery offense also involved petitioner following store customers to the back of the store and using one as a shield to aid his exit from the store. Petitioner contends that he did not "pursue" the customers to the back of the store, as stated by the Appeals Board, but merely "`fled' to the back of the store with these customers to escape out of the back exit." (Traverse at 6.) Petitioner further contends that he took no "hostage", but rather he took "the female customer" as "protection" for self-defense, not as intimidation. ( Id.) The transcript of the parole hearing, nevertheless, reveals the following exchange between the Parole Examiner and petitioner:
Examiner: Then in March `91 on the 13th, you entered a grocery store armed with a handgun. Demanded money from the cashier. It looks like she refused. The military payment [sic] said you fired a shot, I guess to scare her, at the ceiling, or something.
Petitioner: That's correct.
Examiner: She ran to the back of the store, as did several other employees and customers. You ran and grabbed a bag boy to use him as a hostage, I guess, to make your demands. You grabbed him first.
Petitioner: It was not a bag boy. It was a customer in the store.
Examiner: Okay. That was a customer?
Petitioner: Yes, female.
Examiner: And you forced her to come with you to the front of the store so that you could make your escape?
Petitioner: Correct.
(Tr. of Parole Hr'g of Feb. 23, 2000, at 10-11, attached to Resp. to Order to Expand R.) Regardless of Broome's own characterization of his conduct, his conduct and his admissions to the Parole Examiner speak for themselves.
The Court recognizes that "[t]he Parole Commission . . . cannot use aggravating factors to continue a prisoner beyond the guidelines when such factors were used initially to place the prisoner in a particular severity category." See Maddox v. United States Parole Comm'n, 821 F.2d 997, 1001 (5th Cir. 1987). Such practice would "amount to impermissible double-counting." Id. In this instance, however, impermissible double-counting has not occurred.
"[T]o determine whether double-counting has occurred" the Court compares "the factors used to place a defendant in a severity category and the factors used to continue a prisoner beyond the guidelines" See id. In this instance, the Commission rated the offense-severity level of petitioner as a seven, "because it involved a robbery during which a victim was shot receiving serious bodily injury and burglary." (Notice of Action; Notice of Action on Appeal.) It upwardly departed from the presumptive guidelines, because petitioner twice fired his weapon during the attempted robbery, "pursued the store customers to the back of the store", and his "burglary involved the illegal entry of 32 individual military living quarters." (Notice of Action on Appeal.)
The Court finds no impermissible double-counting. The factors used to place petitioner in the seventh offense-severity category and those used to upwardly depart from the presumptive guideline range differ. The only potential overlap is the gunshot which actually resulted in the injury to a customer. While the Commission mentions that gunshot in its discussion of aggravating factors, the focus is on the fact that petitioner fired "two" shots — twice as many as was necessary to rate his offense severity as a seven. The Commission does not double-count when an offense severity rating is based upon certain evidence and the decision to upwardly depart is based upon the multiplicity of such evidence. See Maddox, 821 F.2d at 1002 (holding that consideration of "96,000 pounds of marijuana . . . to the extent it satisfied the 20,000 pounds requirement" for an offense severity rating of six and basing a decision to go outside the guidelines "on the fact that the 96,000 pounds of marijuana is 4 times the amount required for a category six rating . . . does not constitute double-counting").
Petitioner has shown no adequate reason to disturb the decision by the Commission to upwardly depart from the 60 to 106 month range initially determined. Good cause appears to exist for such departure. The Commission has put forth rational, reasonable, relevant, and non-arbitrary reasons for such departure. It did not impermissibly double-count. In short, there is evidence in the record to support upwardly departing from the presumptive guideline range and the Commission set forth appropriate reasons to establish good cause for the departure.
Petitioner also complains that the Commission's decision completely ignores evidence of his institutional performance and adjustments since being incarcerated. The initial Parole Examiner recommended that petitioner serve 126 months for his crimes after reducing an eleven-year recommendation by six months "for the programming he has accomplished." (Initial Hr'g Summ. at 4.) However, the Executive Examiner recommended that petitioner serve 180 months with no reduction for "his institutional accomplishments." ( Id.) The Commission thus ordered that petitioner "Continue to a presumptive parole after the service of 180 months (12-18-2005)." (Notice of Action.)
Section 2.60 of Title 28 of the Code of Federal Regulations addresses the ramifications of "Superior program achievement" on a federal prisoner's release on parole. It provides that "[p]risoners who demonstrate superior program achievement (in addition to a good conduct record) may be considered for a limited advancement of the presumptive date" for parole according to a set schedule." 28 C.F.R. § 2.60(a). By the regulation's own terms, a purely discretionary limited advancement in the date for release on parole is available for prisoners, but only when both superior program achievement and a good conduct record are present. The Commission is entitled to conclude that the severity of a prisoner's offense outweighs a claim to the benefits under § 2.60. See Otsuki v. United States Parole Comm'n, 777 F.2d 585, 587 (10th Cir. 1985) (per curiam). As recognized by the Fifth Circuit Court of Appeals, "[a] history of model prison conduct is only one factor which the Commission examines, and the existence of such good behavior does not require the Commission to grant parole." Page v. United Stares Parole Comm'n, 651 F.2d 1083, 1087 (5th Cir. July 1981). The Commission need not "consider institutional conduct as a major factor in its determination for parole." Stroud v. United States Parole Comm'n, 668 F.2d 843, 846 (5th Cir. 1982).
In his traverse, petitioner argues that respondent applies a version of 28 C.F.R. § 2.60 that was not in effect when he committed his crimes. He bases this argument on the fact that respondent cites to a 2000 version of the regulation. The citation by respondent does not, however, necessarily indicate that it used a version different than the one in existence when petitioner was convicted. With respect to the portions of § 2.60 that are relevant to the instant case, the current version of the regulation does not differ from the version applied in Otsuki v. United Scares Parole Comm'n, 777 F.2d 585, 587 (10th Cir. 1985). Consequently, the Court concludes that the current version of the regulation accurately sets forth the regulation as it existed when petitioner was convicted.
The discretionary decision of the Commission to not award petitioner a limited advancement of his presumptive release date does not appear flagrant, unwarranted, or unauthorized. Evidence of record, furthermore, supports the denial of the limited advancement potentially available under § 2.60. The record unequivocally reflects that petitioner had five administrative violations while in military custody. Such violations taint petitioner's otherwise "good conduct record." The severity and nature of petitioner's offense provide an additional basis not to award the limited advancement under § 2.60.
The Commission appears to have properly applied 28 C.F.R. § 2.20, 2.36, and 2.60, within the exercise of its statutory authority. Petitioner has demonstrated no reason to disturb the parole decision of the Commission.
Furthermore, the Commission observed due process requirements. A Parole Examiner held a hearing wherein he explained the parole procedures and took testimony from petitioner and his father. ( See Tr. of Parole Hr'g.) The Examiner therein informed petitioner that petitioner would receive written notification of the parole decision and that petitioner had the right to appeal such decision. ( Id. at 4-5.) The Commission thereafter provided petitioner with written notice of his parole determination. ( See Notice of Action.) This notice included an offense severity rating, salient factor score, and presumptive guideline range for early release. ( Id.) The Parole Commission specifically explained its reasons for departing above the presumptive guideline range. ( Id.) The National Appeals Board provided a corrected reason for the upward departure, but otherwise affirmed the decision setting the presumptive parole date at 180 months served. (Notice of Action on Appeal.)
The Commission provided petitioner with notice that complies with applicable regulations. See 28 C.F.R. § 2.13(d). Challenges to parole decisions where the Parole Commission informed a prisoner of the severity rating, salient factor score, and the reasons for departure from the guidelines do not state a basis for relief. See, e.g., Young v. United States Parole Comm'n, 682 F.2d 1105, 1108 n. 1 (5th Cir.), cert. denied, 459 U.S. 1021, 103 S.Ct. 387, 74 L.Ed.2d 517 (1982); Stroud v. United States Parole Comm'n, 668 F.2d 843, 846 (5th Cir. 1982). Petitioner has failed to establish a due process violation or that the Commission exceeded its authority.
This regulation provides, in relevant part, that "the reasons for establishment of a release date shall include a guidelines evaluation statement containing the prisoner's offense severity rating and salient factor score . . . as well as the specific factors and information relied upon for any decision outside the range indicated by the guidelines." 28 C.F.R. § 2.13(d).
RECOMMENDATION
For the foregoing reasons, the undersigned Magistrate Judge RECOMMENDS that the District Court DENY petitioner's application for habeas corpus relief, brought pursuant to 28 U.S.C. § 2241.
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
The United States District Clerk shall serve a copy of these findings, conclusions, and recommendation on plaintiff by mailing a copy to him. Pursuant to 28 U.S.C. § 636(b)(1), any party who desires to object to these findings, conclusions and recommendation must file and serve written objections within ten (10) days after being sewed with a copy. A party filing objections must specifically identify those findings, conclusions, or recommendation to which objections are being made. The District Court need not consider frivolous, conclusory, or general objections. Failure to file written objections to the proposed findings, conclusions, and recommendation within ten days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).