Lazo v. USPC ( 1999 )

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.
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Appeal from a Treaty Transfer Determination
of the United States Parole Commission
(66995-080)
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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that this opinion should not be published and is not precedent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.
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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.