Otis v. United States Parole Commission ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 19, 2008
No. 08-60072 Charles R. Fulbruge III
Summary Calendar Clerk
JOHN PATRICK OTIS, JR
Petitioner
v.
UNITED STATES PAROLE COMMISSION
Respondent
Petition for Review of an Order of the
United States Parole Commission
(18 USC 4106A)
Before JOLLY, CLEMENT, and HAYNES, Circuit Judges.
PER CURIAM:*
John Patrick Otis, Jr., a United States citizen, was convicted in Mexico of
drug possession and was subsequently transferred to the United States to serve
his sentence. He petitions for review, arguing that the United States Parole
Commission’s (“Parole Commission”) determination of his release date and
period of supervised release was unreasonable in the light of the sentencing
factors enumerated in 18 U.S.C. § 3553(a). We disagree and DENY the petition.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 08-60072
I.
Otis was arrested in Mexico after Mexican authorities discovered crystal
methamphetamine hidden in the bumper of Otis’s car. Otis was convicted for his
offense and sentenced to 60 months of imprisonment. Mexico transferred Otis
to the United States to serve his sentence pursuant to a prisoner transfer
treaty.1 The Parole Commission was then obliged to determine a release date
and a period of supervised release. 18 U.S.C. § 4106A(b)(1)(A). In a hearing
before the parole examiner, Otis alleged that he was abused by Mexican
authorities and that he should receive a reduced sentence as a result. The
Parole Commission ultimately determined that Otis should be released after 60
months of imprisonment; release before the expiration of that period would be
governed by supervisory conditions the Parole Commission imposed until the 60-
month period elapsed. Otis now argues, on the strength of the abuse he
allegedly suffered in Mexico, that the Parole Commission erred by not giving him
a release date requiring less prison time than the sentence imposed in Mexico,
in derogation of 18 U.S.C. § 3553(a).
II.
The Parole Commission must “determine a release date and a period and
conditions of supervised release for an offender transferred to the United States
to serve a sentence of imprisonment, as though the offender were convicted in
a United States district court of a similar offense.” 18 U.S.C. § 4106A(b)(1)(A);
Navarrete v. U.S. Parole Comm’n, 34 F.3d 316, 319 (5th Cir. 1994). And this
court reviews that determination “in accordance with [18 U.S.C. § 3742] as
though the determination appealed had been a sentence imposed by a United
States district court.” § 4106A(b)(2)(B). “Thus, we review the Parole Board’s
1
Treaty Between the United States of America and the United Mexican States on the
Execution of Penal Sentences, U.S.-Mex., Nov. 25, 1976, 28 U.S.T. 7399.
2
No. 08-60072
construction of § 4106A and the Sentencing Guidelines de novo. When reviewing
the Commission's factual findings, this court applies the clearly erroneous
standard.” Molano-Garza v. U.S. Parole Comm’n, 965 F.2d 20, 22 (5th Cir. 1992)
(citation omitted). We review the Parole Commission's ultimate determination
for its substantive reasonableness under an abuse of discretion standard. See
Gall v. United States, 128 S. Ct. 586, 597 (2007).
Although the transferred prisoner is to be treated by the Parole
Commission as if the prisoner’s offense had been committed in the United
States—and we are to treat the Parole Commission’s determination of a release
date as a sentence imposed by a district court—the foreign sentence remains
relevant. Specifically, the periods of imprisonment and supervised relief
imposed by the Parole Commission cannot together exceed the foreign sentence.2
§ 4106A(b)(1)(C). If a foreign sentence is less than the sentence that would
otherwise be applied by the Sentencing Guidelines, we treat the foreign sentence
as analogous to a statutory maximum under § 5G1.1 of the Sentencing
Guidelines. Thorpe v. U.S. Parole Comm’n, 902 F.2d 291, 292 (5th Cir. 1990).
Accordingly, the foreign sentence is treated as the guideline sentence. See id.
Here, a parole examiner conducted a hearing in which she calculated
Otis’s proper Guidelines range to be 78-97 months. The examiner acknowledged
that Otis’s claims of abuse were credible, but determined that departure below
60 months was not warranted, particularly because of the statutory requirement
2
There is uncertainty within this circuit about the Parole Commission’s power to
impose periods of imprisonment and supervised release amounting to less than the foreign
sentence. Compare Cannon v. U.S. Dep’t of Justice, U.S. Parole Comm’n, 973 F.2d 1190,
1195-98 (5th Cir. 1992) (“[T]he Commission may not authorize a release date which results in
the total period of incarceration, plus the period of supervised release, being less than or
greater than the total foreign-court-imposed sentence.”) and Welsh v. U.S. Parole Comm’n, 513
F.3d 169, 171 (5th Cir. 2008) (citing Cannon as authority in this circuit) with Paura v. U.S.
Parole Comm’n, 18 F.3d 1188, 1189 (5th Cir. 1994) (declaring statements in Cannon requiring
Parole Commission to match foreign sentence dicta). Our denial of the petition does not
require us to decide this issue.
3
No. 08-60072
that Otis be treated as if he had committed the crime in the United States, the
sentence for which was more severe than that he received in Mexico. The Parole
Commission agreed with this assessment. Otis contends that, because his
foreign sentence of 60 months is treated as the Guidelines sentence, any
warranted departure must be made from the 60-month period. Thus, if Otis’s
testimony regarding the abuse he suffered is credited, the Commission erred in
its determination of a period of imprisonment and supervised release
functionally equivalent to 60 months. The only authority that Otis cites in his
favor rejected the very same argument as without support in law. See id. at
292–93. And we have rejected this argument on other occasions. See, e.g., Lara
v. U.S. Parole Comm’n, 990 F.2d 839, 841 n.4 (5th Cir. 1993); Calabria v. U.S.
Parole Comm’n, 227 F. App’x 336, 338 (5th Cir. 2007); accord Tramel v. U.S.
Parole Comm’n, 100 F.3d 129, 131–32 (11th Cir. 1996). Otis has not offered any
compelling reason for us to depart from these authorities.
III.
Because the law of this circuit clearly countenances the Parole
Commission’s decision here, we DENY the petition.
4