Acevedo-Cruz v. USPC ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-60564
Summary Calendar
VICTOR GERMAN ACEVEDO-CRUZ,
Petitioner,
versus
US PAROLE COMMISSION,
Respondent.
Appeal from the Determination of the
United States Parole Commission
(18 USC 4106A)
February 4, 2002
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Victor German Acevedo-Cruz appeals from the release date
determination of the U.S. Parole Commission following his transfer
to the United States from Mexico, pursuant to treaty,1 to continue
serving his 10-year sentence for transportation of marijuana
*
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should not be published and is not precedent except under the limited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
Treaty on the Execution of Penal Sentences, November 25, 1976, U.S.—Mex.,
28 U.S.T. 7399.
imposed by a Mexican court. We have jurisdiction under 18 U.S.C.
§ 4106A(b)(2)(B) to review decisions of the USPC.
The USPC is to determine a transferee’s release date as if the
individual had been convicted of a similar offense in a United
States district court.2 We must treat Acevedo-Cruz’s appeal “as
though the determination had been a sentence imposed by a United
States district court.”3 We review the USPC’s application of the
guidelines de novo and its findings of fact for clear error.4 This
Court may uphold a challenge to a sentence only if (1) it was
imposed in violation of law, (2) imposed as a result of an
incorrect application of the guidelines, (3) resulted from an
upward departure, or (4) was unreasonably imposed for an offense
not covered by the guidelines.5
The USPC analogized Acevedo-Cruz’s offense of “transportation
of marijuana” to possession with intent to distribute more than 100
kilograms of marijuana in violation of 21 U.S.C. §§ 841(a)(1) and
(b)(1)(B). The only issues on appeal are whether or not Acevedo-
Cruz should have received a downward adjustment for acceptance of
responsibility under U.S.S.G. § 3E1.1 and whether Acevedo-Cruz’s
2
18 U.S.C. § 4106A(b)(1)(A).
3
Id. § 4106A(b)(2)(B).
4
Navarrete v. U.S. Parole Com’n, 34 F.3d 316, 318 (5th Cir. 1994).
5
United States v. Yanez-Huerta, 207 F.3d 746, 748 (5th Cir. 2000).
2
due process rights were violated when USPC denied him the
adjustment in alleged violation of an internal policy.
In front of the hearing examiner for the USPC Acevedo-Cruz
made several statements indicating that he denied criminal
responsibility for his Mexican offense, a departure from statements
he had made to the probation officer. The hearing examiner
nevertheless recommended a downward adjustment for acceptance of
responsibility. A USPC staff attorney wrote to counsel for
Acevedo-Cruz advising him that the USPC was, in light of Acevedo-
Cruz’s claims of innocence at the hearing, reviewing the
recommendation of a downward adjustment. The letter invited
Acevedo-Cruz to, at this late date, finally accept responsibility
for his criminal conduct. However, Acevedo-Cruz, through counsel,
continued to maintain that he “accepted” the Mexican conviction,
which was required by the Treaty,6 and did not alter his statements
relating to his innocence. As a result, and unsurprisingly,
Acevedo-Cruz did not receive any downward adjustment for acceptance
of responsibility.
Acevedo-Cruz clearly was technically ineligible for a § 3E1.1
adjustment because he did not cooperate with the Mexican
authorities and at all times maintained his innocence during the
6
In order to be eligible for transfer, the transferee must not be
challenging his conviction through appeal or collateral attack. See Treaty, 28
U.S.T. at 7403.
3
Mexican proceedings.7 He argues, however, that an internal policy
of the USPC entitled him to the downward adjustment.8 That policy
provides that—
A defendant who has not cooperated with the foreign
authorities by providing self-incriminating information
will nonetheless qualify for a 2-level adjustment for
acceptance of responsibility under § 3E1.1.(a) if the
defendant, upon return to the United States, promptly
accepts responsibility for his offense(s) of conviction
(even if only because the law and treaty require it) and
there are no countervailing circumstance(s) warranting
denial of the adjustment.9
However, the policy also states that “countervailing circumstances”
include a defendant challenging his foreign court conviction by
claiming that he is not guilty,10 which is precisely what Acevedo-
Cruz did.11 Therefore, even if we assume, arguendo, that the policy
7
U.S.S.G. § 3E1.1 App. n.2 (“This adjustment is not intended to apply to
a defendant who puts the government to its burden of proof at trial by denying
the essential factual elements of guilt, is convicted, and only then admits guilt
and expresses remorse.”).
8
Even the USPC admits that its policy goes beyond the downward adjustments
contemplated by § 3E1.1, but characterizes the policy as a discretionary downward
departure that is based on § 3E1.1. However it is characterized, we conclude
that Acevedo-Cruz is ineligible both under §3E1.1 as written and as implemented
by the USPC.
9
Appendix 9 — Transfer Treaty Cases, U.S. Parole Commission Supplementary
Instructions, Section 4C (emphasis added).
10
Id. Section 3C (“The following are examples of countervailing
circumstances that may warrant denial of an adjustment for acceptance of
responsibility: ... (3) the defendant persists in attacking the facts established
by his foreign conviction at the time of the hearing before the Parole Commission
....”); see also id. Section 4B (“A defendant who challenges the findings of the
foreign court pertaining to his offense of conviction (for example, by claiming
that he is not guilty or that his participation in the offense was significantly
less than is consistent with the facts accepted by the foreign court) cannot be
said to have accepted responsibility for his offense and will disqualify himself
from any downward adjustment under §3E1.1 ....” (emphasis added)).
11
Acevedo-Cruz effectively denied any responsibility for the marijuana
found in his truck by Mexican authorities.
4
had the force of law or that it created a protected liberty
interest such that Acevedo-Cruz could make a due process claim, we
would affirm his release date determination because the policy
itself dictates that he is not entitled to a downward adjustment.
Accordingly, we need not reach the merits of Acevedo-Cruz’s due
process claim.
Since Acevedo-Cruz’s release date determination was not
imposed in violation of law nor resulted from a misapplication of
the guidelines, we AFFIRM.
5