Money v. US Parole Commission ( 1995 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-10354
Summary Calendar
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Joseph Money,
Petitioner/ Appellant,
VERSUS
United States Parole Commission,
Respondent/ Appellee.
____________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
(4:94-CV-377-Y)
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September 26, 1995
Before DAVIS, BARKSDALE and DeMOSS, Circuit Judges.
PER CURIAM:1
Joseph Money appeals the denial of habeas relief. We AFFIRM.
I.
Money, incarcerated at the Federal Medical Center at Fort
Worth, Texas, filed a habeas petition, challenging the
determination of his presumptive parole date. He contended that
the Parole Commission's determination, establishing a presumptive
parole date which exceeded his guideline range of 40-52 months,
1
Local Rule 47.5.1 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that this opinion should not be published.
should be overturned because he is an exemplary inmate with the
highest possible salient factor score and because his similarly
situated codefendant was given a presumptive parole date within his
guideline range. Money claimed that the Parole Commission violated
its rules and abused its discretion by establishing disparate
presumptive parole dates for Money and his codefendant.
The Parole Commission's decision to exceed the guideline range
was based upon an aggravating factor -- the amount of drugs
involved exceeded by 22 times the amount of drugs at the lower
threshold of the offense severity category. On Money's
administrative appeal, the National Appeals Board of the Parole
Commission ordered that Money's presumptive parole date be set at
72 months.2 Although partial relief was granted because of
codefendant disparity, further relief was deemed unwarranted.
According to the Appeals Board, the codefendant's equal culpability
and similar criminal history compelled the conclusion that the
decision in the codefendant's case, which established a presumptive
parole date within the guideline range, was not appropriate.3
The magistrate judge found that there was evidence in the
record which supported the Parole Commission's decision.
2
Money was originally sentenced to 12 years (144 months)
imprisonment. The hearing panel recommended that the presumptive
parole date be set at 72 months. The regional commissioner
overruled the panel, recommending that the incarceration continue
to expiration (occurring after 96 months). The National Appeals
Board ruled that the presumptive parole date should be set at 72
months.
3
Unlike Money, the codefendant had a prior criminal history
which the Commission's analyst characterized as involving arrests
which were "ancient and not of a serious nature."
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Therefore, the magistrate judge concluded that Money had failed to
demonstrate that the Parole Commission's decision was unwarranted.
The district court conducted a de novo review and, over Money's
objection, adopted the findings and conclusions of the magistrate
judge and entered judgment denying habeas relief.
II.
Money contends that the Parole Commission failed to follow its
own rules in setting his presumptive parole date at 72 months, when
his equally culpable codefendant received a presumptive parole date
of 48 months.
The Parole Commission has "absolute discretion concerning
matters of parole", and "may use all relevant, available
information in making parole determinations". Maddox v. U.S.
Parole Comm'n, 821 F.2d 997, 999 (5th Cir. 1987). "The Commission
may take into account any substantial information available to it
in establishing the prisoner's offense severity rating, salient
factor score, and any aggravating or mitigating circumstances,
provided the prisoner is apprised of the information and afforded
an opportunity to respond." Id. (internal quotations omitted).
[T]his Court cannot disturb a decision by the Commission
setting the time for parole release absent a showing that
the action is flagrant, unwarranted, or unauthorized. So
long as due process requirements are observed and the
Commission has acted within its statutory authority, we
will not usurp the Commission's position as established
in the statutory scheme enacted by Congress.
Maddox, 821 F.2d at 1000 (internal quotations and citations
omitted).
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"The Parole Commission guidelines provide instructions for
rating the severity of various `offense behaviors.' Where
circumstances warrant, a decision outside the guidelines may be
appropriate." Sheary v. U.S. Parole Comm'n, 822 F.2d 556, 558 (5th
Cir. 1987) (citing 28 C.F.R. § 2.20(d)).
The Parole Commission for "good cause" may go outside its
guidelines, provided that the prisoner is furnished
written notice stating with particularity the reasons for
its determination, including a summary of the information
relied upon. "[G]ood cause" means substantial reason and
includes only those grounds put forward by the Commission
in good faith and which are not arbitrary, irrational,
unreasonable, irrelevant or capricious. It includes such
factors as whether . . . the prisoner was involved in an
offense with an unusual degree of sophistication or
planning, or has a lengthy prior record, or was part of
a large scale conspiracy or continuing criminal
enterprise.
Maddox, 821 F.2d at 1000-01 (footnotes and internal quotations
omitted). "Although the Commission's decisions must have a factual
basis, judicial review is limited to whether there is `some
evidence' in the record to support the Commission's decision."
Maddox 821 F.2d at 1000 (footnote and citation omitted).
Under § 2.20-09, of the U.S. Parole Commission Rules and
Procedures Manual (1995), the term "`[u]nwarranted codefendant
disparity' refers to different parole decisions for similarly
situated offenders where no legitimate reasons for the difference
in decisions exists. It is to be remembered that different
decisions for codefendants are not necessarily inappropriate."
Example 7, illustrating the application of this section, provides:
Three codefendants appear equally culpable, have similar
salient factor scores, have identical sentences, and
appear to have no other relevant differences.
Significantly different decisions by the Commission in
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such cases constitute unwarranted disparity and are to be
avoided. Note: if it appears that the Commission has
erroneously granted unwarranted leniency to one
codefendant, it is not appropriate to compound such error
by providing unwarranted leniency to other codefendant
cases.
Id. (Example 7) (emphasis added); see Sheary, 822 F.2d at 559
(noting Example 7 in case involving disparate sentences); see also
Coleman v. Perrill, 845 F.2d 876, 879 (9th Cir. 1988) (Commission
was not bound by its own regulations concerning codefendant
disparity because regulations were merely precatory and, therefore,
failure to follow regulations was not reviewable by court of
appeals).
In the instant case, evidence in the record tends to
demonstrate that the leniency accorded the codefendant was
unwarranted. Because Money's offense behavior involved at least 22
times the amount of drugs at the lower threshold of the offense
severity category, the National Appeals Board determined that a
decision above the guidelines was warranted. The lower threshold
of offense severity category six was met in offenses involving
200,000 doses of amphetamine. Money's offense involved 4,536,000
dosage units, and he reaped approximately $750,000 in profits from
the criminal enterprise between 1984 and 1988. The Commission's
analyst found that Money and the codefendant were "almost equally
culpable," had identical guideline ranges of 40-52 months,
identical salient factor scores, and similar criminal histories.
Because the codefendant was equally culpable, the Commission's
determination that the codefendant's parole decision was
excessively lenient was not unwarranted; and, accordingly, the
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disparate decision in Money's case was not inappropriate.
Therefore, the district court properly denied habeas relief.
III.
For the foregoing reasons, the judgment is
AFFIRMED.
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