Mason v. USPC ( 1995 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 95-60105
Summary Calendar
_______________________
STEVEN BRUCE MASON,
Petitioner,
versus
UNITED STATES PAROLE COMMISSION,
Respondent.
_________________________________________________________________
Appeal from the United States Parole Commission
(08125-008)
_________________________________________________________________
(September 25, 1995)
Before JOLLY, JONES and STEWART, Circuit Judges.
PER CURIAM:*
Steven Bruce Mason (“Mason”) was arrested, convicted, and
sentenced in Mexico for the offense of robbery with violence.
Pursuant to a transfer treaty between this country and Mexico, he
is now imprisoned in the United States. Mason complains that the
Parole Commission committed plain error when it refused to reduce
his sentence because of the abuse he suffered at the hands of
foreign officials and his acceptance of responsibility for his
crime. Because we find no such plain error, the determination of
the Parole Commission is affirmed.
*
Local Rule 47.5 provides: "The publication of opinions that have no
precedential value and merely decide particular cases on the basis of well-
settled principles of law imposes needless expense on the public and burdens on
the legal profession." Pursuant to that Rule, the Court has determined that this
opinion should not be published.
I. FACTUAL BACKGROUND
On October 30, 1992, Mason entered a branch of the
Banco Nacional de Mexico in Tijuana and, armed with a revolver,
demanded money from a teller. When the teller unlocked her cash
drawer, Mason leapt over the counter and took $1,761 in U.S.
currency and 14,820 new pesos. However, before he could escape
the bank, Mason was apprehended by a bank guard and arrested.
Convicted in Mexico of the crime of robbery with
violence, Mason was sentenced to ten years in jail and was
ordered to pay a fine of 4,665.50 new pesos. After appeal, his
sentence was reduced to eight years and his fine, to 3,990 new
pesos.
Pursuant to the Treaty on the Execution of Penal
Sentences (“Transfer Treaty”) between the United States and
Mexico,1 Mason was transferred to this country and incarcerated
in the FCI-La Tuna, Texas. Under the Transfer Treaty, the Parole
Commission has authority to determine the release date for
prisoners convicted under foreign laws and transferred to the
United States.2 Prior to Mason’s hearing before the Commission,
a Parole Commission examiner had calculated Mason’s offense level
as 24 and his criminal history as Category VI, with guidelines of
1
Transfer Treaty, Nov. 25, 1976, U.S.-Mex., 28 U.S.T. 7401, T.I.A.S.
No. 8718.
2
See 18 U.S.C. § 4106A (1988). The Parole Commission’s determination
of the release date is structured by the Sentencing Guidelines.
2
100-125 months.3 During the hearing, Mason’s attorney argued
that the Mexican sentence, 96 months, was the longest prison term
that Mason could serve and requested a downward departure from
that term for the abuse Mason suffered at the hands of foreign
officials and because he accepted responsibility for his crime.
After considering this request, the Parole Commission
declined to depart downward and found that Mason’s imprisonment
should continue until expiration of his Mexican sentence, less
prison time credits,4 and that he then serve a 32-month
supervised release. The Commission reasoned that Mason was not
entitled to a downward departure because his Mexican sentence was
significantly shorter than the analogous sentence under the
Sentencing Guidelines; stated otherwise, Mason’s actual sentence
was less than it would have been under the Guidelines even had
his downward departure been granted. Mason’s attorney did not
object to the release date set by the Commission at any time
during the hearing.
II. DISCUSSION
The parties agree that the Parole Commission’s
determination of Mason’s release date must be reviewed for plain
error. Under plain error review, the petitioner must demonstrate
three factors before this court can correct a forfeited error:
(1) there was an error; (2) it was clear or obvious; and (3) this
3
Mason has a career of criminal activity. Convicted of six prior
offenses, including five bank robberies, Mason has also repeatedly absconded from
supervised parole.
4
See 18 U.S.C. § 4105© (1988) (explaining formula for release date).
3
error affected the substantial rights of the petitioner. United
States v. Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994) (en
banc) (citing United States v. Olano, ___ U.S. ___, 113 S. Ct.
1770, 1776-79 (1993)), cert. denied, ___ U.S. ___ 115 S. Ct. 1266(1995). Even if these factors are established, this court will
not exercise its discretion to correct the error unless it
seriously affects the fairness, integrity, or public reputation
of judicial proceedings. Olano, 113 S. Ct. at 1778.
Because Mason does not prove that the Parole Commission
plainly erred when it determined his release date, this court
affirms the determination of the Commission. Indeed, Mason has
not even satisfied his initial burden of demonstrating that the
Commission actually erred. While this court agrees that the
maximum sentence that the Commission could impose on Mason is the
expiration of the foreign sentence, less good time credits, the
Commission did not err in refusing to depart downward from this
maximum. See Roeder v. U.S. Parole Comm’n, No. 93-4114, unpub.
op. at 5 (5th Cir. Sept. 10, 1993), reported at 5 F.3d 529(table) (holding that while the Mexican sentence was the maximum,
it was not error to decline to depart downward); Lara v. U.S.
Parole Comm’n, 990 F.2d 839, 841 n.4 (5th Cir. 1993) (noting that
the Parole Commission did not err when it refused to depart
downward from a Mexican sentence that was set far below the
analogous offense under the Guidelines). See also, United States
v. Buenrostro, 868 F.2d 135 (5th Cir. 1989) (affirming refusal to
depart downward since such refusal did not violate any law).
4
These cases furnish no authority for requiring the Commission to
adjust the foreign sentence, when it is less than the applicable
domestic guidelines for an analogous offense, to recognize
torture or acceptance of responsibility.5 In any event, the
sentence reached by the Parole Commission is certainly no
miscarriage of justice.
This court AFFIRMS the release date determination of
the Parole Commission.
5
This court is singularly unimpressed with the public defender’s
having agreed to an analogous career offender guideline of 100-125 months before
the Parole Commission, only to call that determination “plain error” in this
court. We expect a higher level of expertise and preparedness from this office.
5