Calabria v. United States Parole Commission , 227 F. App'x 336 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
April 10, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
__________________________ Clerk
No. 06-60010
__________________________
WILLIAM JOSEPH CALABRIA,
Petitioner,
versus
UNITED STATES PAROLE COMMISSION,
Respondent.
___________________________________________________
Petition for Review of an Order of the
United States Parole Commission
Register No. 58861-180
___________________________________________________
Before JONES, Chief Judge, HIGGINBOTHAM, and CLEMENT, Circuit Judges.
PER CURIAM:*
William Joseph Calabria, a United States citizen convicted in a Mexican court of attempted
murder and transferred to the United States to serve his sentence, petitions for review of his release
date set by the United States Parole Commission (“Parole Commission”). Calabria argues that the
Parole Commission’s release date determination was unreasonable in light of the 18 U.S.C. § 3553(a)
sentencing factors. We disagree and affirm.
I. FACTS AND PROCEEDINGS
*
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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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Calabria was sentenced to 85 months of imprisonment by a Mexican court following a
conviction for attempted murder. Pursuant to a prisoner transfer treaty between the United States and
Mexico, he was transferred to a United States prison at which time the Parole Commission was
required to determine a release date and period of supervised release. See 18 U.S.C. §
4106A(b)(1)(A). A Parole Commission examiner conducted a hearing and recommended that
Calabria be released after the expiration of his 85 month sentence imposed in Mexico. A panel of the
Parole Commission agreed and set Calabria’s release date accordingly. The panel also concluded that,
if the Bureau of Prisons releases Calabria early based upon earned good-time credits, Calabria would
be subject to a period of supervised release for the remainder of the 85 months, one condition of
which is Calabria’s participation in a substance abuse treatment program.
II. DISCUSSION
The Parole Commission must determine the release date for a foreign-sentenced prisoner who
has been transferred to the United States pursuant to a prisoner transfer treaty. Id. In determining a
release date, the Parole Commission does not re-sentence the transferred prisoner; instead, it converts
the foreign sentence into a determination of a release date and a period of supervised release as
though the prisoner had been convicted in a United States district court of a similar offense. See
Navarrete v. U.S. Parole Comm’n, 34 F.3d 316, 319 (5th Cir. 1994). “The combined periods of
imprisonment and supervised release that result from [the Parole Commission’s] determination shall
not exceed the term of imprisonment imposed by the foreign court on that offender.” 18 U.S.C. §
4106A(b)(1)(C); see also Hansen v. U.S. Parole Comm'n, 904 F.2d 306, 310–11 (5th Cir. 1990).
This court reviews a release date determination made by the Parole Commission as though
it “had been a sentence imposed by the United States district court.” Molano-Garza v. U.S. Parole
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Comm’n, 965 F.2d 20, 23 (5th Cir. 1992) (internal quotation omitted). After Booker, as before, the
application of the sentencing guidelines is reviewed de novo and factual findings are reviewed for
clear error. See United States v. Smith, 440 F.3d 704, 706 (5th Cir. 2006). This court reviews the
ultimate sentencing determination for reasonableness. United States v. Caldwell, 448 F.3d 287, 290
(5th Cir. 2006).
Calabria maintains that his release date determination was ultimately unreasonable because
the Parole Commission examiner did not properly consider the § 3553(a) factors. In particular,
Calabria asserts that the examiner gave the guidelines range calculation determinative weight and did
not give enough weight to the alleged physical and mental abuse suffered by Calabria while he was
incarcerated in Mexico.
We disagree. Before recommending a release date that was exactly the length of the sentence
imposed in Mexico, the Parole Commission examiner had properly calculated the guidelines range
to be 120 to 150 months using the most similar U.S. Code offense. A review of the record reveals
that the Parole Commission examiner thought that a downward departure for the abuse Calabria
endured was perhaps warranted. It rejected such a departure, however, not because the guidelines
range was determinative, but because the foreign sentence itself was more than a sufficient departure
from the guidelines range calculation to take the abuse into account. The examiner’s statements at
the hearing reveal that she exercised her discretion under the advisory guidelines in recommending
Calabria’s release date.
The examiner’s statements and recommendation to the Parole Commission also exhibit her
consideration of the § 3553(a) sentencing factors, including the serious nature of Calabria’s attempted
murder offense, Calabria’s treatment while incarcerated in Mexico, Calabria’s history of substance
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abuse, and Calabria’s need for substance abuse treatment upon release. The examiner properly
calculated the guidelines range, considered the guidelines advisory, and adequately considered the
relevant § 3553(a) factors when formulating her recommendation. Considering the full record, the
determination of Calabria’s release date was reasonable. See Thorpe v. U.S. Parole Comm’n, 902
F.2d 291, 292 (5th Cir. 1990) (per curiam) (rejecting the petitioner’s argument for a downward
departure based upon his health and abuse suffered when the Parole Commission considered the §
3553(a) factors); see also Odili v. U.S. Parole Comm’n, 474 F.3d 1255, 1264–65 (11th Cir. 2007)
(rejecting, post-Booker, a reasonableness challenge to a release date determination where the record
revealed that the hearing examiner considered the § 3553(a) factors, albeit not by name).
For the foregoing reasons, the Parole Commission’s determination is AFFIRMED.
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