Lazo v. USPC ( 1999 )


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  •                 IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    No. 96-60666
    Summary Calendar
    ANTONIO LAZO,
    Petitioner,
    versus
    UNITED STATES PAROLE COMMISSION,
    Respondent.
    - - - - - - - - - -
    Appeal from a Treaty Transfer Determination
    of the United States Parole Commission
    (66995-080)
    - - - - - - - - - -
    September 9, 1999
    Before KING, Chief Judge, and HIGGINBOTHAM and STEWART, Circuit
    Judges.
    PER CURIAM:*
    Antonio Lazo, a federal prisoner transferred to the United
    States under a prisoner-exchange treaty following two convictions
    in Mexico, filed a timely notice of appeal to this court pursuant
    to 18 U.S.C. § 4106A(b)(2)(A) from the initial release date
    determination made by the United States Parole Commission (Parole
    Commission).    Because the Parole Commission’s initial
    determination was incorrect, we granted the Parole Commission’s
    request for an extended remand to reopen the determination of
    *
    Pursuant to 5TH CIR. R. 47.5, the court has determined
    that this opinion should not be published and is not precedent
    except under the limited circumstances set forth in 5TH CIR.
    R. 47.5.4.
    No. 96-60666
    -2-
    Lazo’s release date.   The Parole Commission has now filed a
    report of its redetermination.    Lazo, through the Federal Public
    Defender, has filed objections to the redetermination, and the
    Parole Commission has filed a reply to Lazo’s objections.
    Accordingly, we may now address the merits of Lazo’s direct
    appeal.
    Lazo argues that the Parole Commission has exceeded its
    authority to redetermine Lazo’s sentence by relying upon
    information that was not shown to be contained in the record of
    the foreign sentencing court and further that the information
    relied upon by the Parole Commission is, in fact, wrong in light
    of the official judgments contained in Lazo’s record.    Lazo also
    argues alternatively that it would be contrary to law to increase
    his sentence after so many years.    Finally, Lazo argues that he
    was denied due process of law and his right to counsel at the
    rehearing.
    This court reviews the Parole Commission’s determination de
    novo, upholding the release date determination unless it was
    imposed in violation of law, as a result of an incorrect
    application of the sentencing guidelines, or is outside the
    applicable guideline range and is unreasonable or was imposed for
    an offense for which there is no applicable sentencing guideline
    and is plainly unreasonable.     Navarrete v. United States Parole
    Comm’n, 
    34 F.3d 316
    , 318 (5th Cir. 1994).
    Although Lazo is entitled to representation before the
    Parole Commission, 18 U.S.C. § 4109, he waived his right to
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    attorney representation at the hearing.    Accordingly, he was not
    denied due process or his right to counsel at the hearing.
    The jurisdiction of the Parole Commission to set a release
    date and periods and conditions of supervise release extends
    until the transferee is released from prison.    28 C.F.R.
    § 2.68(a)(2).    The Commission may reopen and modify a
    determination based upon information which was not previously
    considered provided that the information was “contained in the
    record of the foreign sentencing court.”    
    Id. at §
    2.68(k)(2).
    The Parole Commission concedes that “the information was
    transferred through administrative agencies,” but the Parole
    Commission nevertheless asserts that the “ultimate source of the
    information on the foreign sentences must be [the] court records
    on the criminal convictions.”    The language of the regulation is
    plain and unambiguous:    the information relied upon by the Parole
    Commission to reopen the proceedings must have been “contained in
    the record of the foreign sentencing court.”    § 2.62(k)(2).   The
    Commission has made no showing that the information relied upon
    to reopen and modify Lazo’s release date was in fact “contained
    in the record of the foreign sentencing court.”
    The Parole Commission contends that Lazo’s challenge to the
    manner in which his sentence was calculated should be presented
    to the Bureau of Prisons (BOP) in a habeas petition as it is
    required only to assure itself that the combination of the term
    that the prisoner serves in custody and the supervised release
    term does not exceed the term of imprisonment imposed by the
    foreign court.
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    Under the plain language of the statute and this court’s
    precedent, the Parole Commission, not the BOP, translates Lazo’s
    foreign sentence into an equivalent domestic sentence.
    § 4106A(b); Cannon v. United States Dep’t of Justice, 
    973 F.2d 1190
    , 1193-94 (5th Cir. 1992), denying reh'g to, 
    961 F.2d 82
    (5th
    Cir. 1992).   Because the Parole Commission has not complied with
    its own regulations in translating Lazo’s foreign sentence into
    an equivalent domestic sentence, Lazo’s sentence must be VACATED
    and REMANDED for yet another redetermination.   We are mindful
    that Lazo may be entitled to an immediate release if his two
    sentences are not required to be served consecutively.
    Accordingly, IT IS ORDERED that the Commission redetermine Lazo’s
    release date within 90 days of the date of this opinion.
    VACATED AND REMANDED.