Wolff v. USPC ( 1999 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_________________
No. 99-60091
Summary Calendar
_________________
CRAIG MARTIN WOLFF,
Petitioner,
versus
UNITED STATES PAROLE COMMISSION,
Respondent.
Appeal from the Determination of the
United States Parole Commission
(98-0777-MC)
August 24, 1999
Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Petitioner, Craig Martin Wolff, appeals the United States Parole Commission’s (“USPC”)
release-date determination. Wolff is a federal prisoner who was transferred to the United States
to continue a sentenced imposed by a Mexican court for attempted kidnapping.
Wolff argues that the USPC erred in determining that his attempted kidnapping conviction
in Mexico was most similar to the United States Sentencing Guidelines (“U.S.S.G.”) offense for
kidnapping. See 18 U.S.C. § 4106A(b)(1)(A).1 Wolff specifically contends that because he was
*
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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
1
18 U.S.C. § 4106A(b)(1)(A) provides:
The United States Parole Commission shall, without unnecessary delay, 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.
convicted for attempted kidnapping, the USPC should have applied U.S.S.G. § 2X1.1(b)(1) to its
calculation of his release date.2
We review the USPC’s release date determination under the U.S.S.G. de novo. See
Rosier v. United States Parole Comm’n, 109 F.3d 212, 214 (5th Cir. 1997). After reviewing the
record, we conclude that Wolff “was about to complete” the kidnapping, but was interrupted by
an event beyond his control. U.S.S.G. § 2X1.1(b)(1). Accordingly, U.S.S.G. § 2X1.1(b)(1) does
not apply and the USPC did not err in rating Wolff’s offense.
Wolff also argues that the USPC errred in adjusting Wolff’s criminal history category from
level III to level VI. We will affirm the USPC’s upward departure if we find that the USPC has
offered “acceptable reasons” for the departure and the departure is reasonable. See United States
v. Pennington, 9 F.3d 1116, 1118 (5th Cir. 1993). When making an upward departure, the USPC
should “consider each intermediate criminal history category before arriving at the sentence it
settles upon.” United States v. Lambert, 984 F.2d 658, 662 (5th Cir. 1993) (en banc). The USPC
also “should explain why the criminal history category as calculated under the guidelines is
inappropriate and why the category it chooses is appropriate.” Id. at 662-63.
In this case, the USPC clearly explained why it considered an upward departure and also
why it believed a criminal history category less than level VI inappropriate. We conclude that the
USPC’s upward departure was reasonable. Accordingly, the USPC did not err.
For the foregoing reasons, we AFFIRM the USPC’s release-date determination.
2
U.S.S.G. § 2X1.1(b)(1) provides:
If an attempt, decrease by 3 levels, unless the defendant completed all the
acts the defendant believed necessary for successful completion of the substantive
offense or the circumstances demonstrate that the defendant was about to
complete all such acts but for apprehension or interruption by some similar event
beyond the defendant’s control.
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