Aponte v. USPC ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 99-60775
Summary Calendar
_____________________
JUAN ENRIQUE APONTE,
Petitioner,
versus
UNITED STATES PAROLE COMMISSION,
Respondent.
_________________________________________________________________
Appeal from the United States District Court for the
Northern District of Texas
USDC No. 18USC4106A
_________________________________________________________________
June 30, 2000
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:*
The appellant, Juan Enrique Aponte, seeks review of the United
States Parole Commission’s determination of his release date for
transporting cocaine in Mexico. Specifically, Aponte argues that
the Parole Commission impermissibly considered his socioeconomic
status in determining his release date. Consequently, Aponte
asserts, because such a consideration is “forbidden by the
sentencing guidelines,” he is entitled to a redetermination of his
release date. Finding that the Parole Commission did not consider
*
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this opinion should not be published and is not precedent except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.
Aponte’s socioeconomic status in determining his release date,
Aponte’s request for a redetermination is denied.
I
Aponte, an American citizen, was convicted in the First
District Court in San Luis Potosi, San Luis Potosi, Mexico, of
transporting 12 kilograms of cocaine. He was sentenced to 165
months imprisonment. Pursuant to a treaty between the United
States and Mexico, Aponte was transferred to the United States to
serve his prison sentence. Upon arrival in the United States, the
United States Parole Commission was required to determine his
release date. See 18 U.S.C. § 4106A(b)(1)(A) (West 1999). After
a hearing before a Parole Commission examiner, the examiner
recommended that Aponte be released after serving a prison term of
135 months.1 In the examiner’s written hearing summary, he
enumerated the reasons he believed supported a prison term of 135
months:
A decision at the top of the applicable guideline range
is found warranted because you transported 12 kilograms
of cocaine, an amount at the upper end of the 5-15
kilogram range in the sentencing guidelines. A penalty
that proportionally reflects the relative seriousness of
the offense is therefore in order. Further, you blamed
this behavior on others, and your overall record
1
Specifically, the examiner determined that the base offense
level was 32, see U.S.S.G. § 2D1.1(a)(3) (1999), and that Aponte’s
Criminal History Category was a II based on his two prior
convictions for criminal assault. The examiner also determined that
Aponte was entitled to a two-level reduction for accepting
responsibility for his actions. Thus, the examiner determined the
offense level to be 30, necessitating a sentence between 108 and
135 months.
2
(including your record of domestic violence and lack of
a solid wage-earning history) indicates that a more
lenient penalty would fail to afford adequate deterrence
to criminal conduct of a similar nature in the future.
The hearing examiner’s recommendation was first reviewed by
the Parole Commission’s Office of General Counsel. The legal
office attorney assigned to the case agreed with the examiner,
stating that the relevant factors including Aponte’s evidence of
his willingness to blame others, his history of domestic violence,
and his lack of sufficient wage earning capacity to keep him from
going after “easy money,” necessitated a sentence at the upper end
of the guidelines.2 Second, the examiner’s recommendation was
reviewed by a second hearing examiner. This examiner likewise
agreed with the recommendation. Thus, the sentencing
recommendation was forwarded to the Parole Commission. See 28
C.F.R. § 2.68(h)(6) (1999).
2
Specifically, in a document entitled “Legal Office Review of
Transfer Treaty Case,” the legal office attorney stated:
[T]his offender seems to have the background and
personality type to be almost a more serious risk for
renewed drug involvement than his Criminal History
Category would indicate. Relevant factors include, his
evident willingness to blame others, his history of
domestic violence, and the lack of sufficient wage
earning capacity to keep him from again going for easy
money. (There is only Aponte’s unverified claim to have
worked ten years in an auto repair garage for minimum
wage, an obviously marginal job to which he proposes to
return. This is not a promising outlook.) A departure
is not warranted, but the risk of an economically
marginal, aggressively impulsive man going back into the
drug trade would seem to be relatively high.
3
The Parole Commission, accepting the recommendation of the
examiners, imposed a release date of June 9, 2009. In support of
this decision, the Commission stated:
You transported 12 kilograms of cocaine, an amount at the
upper end of the 5-15 kilogram range in the sentencing
guidelines. A penalty that proportionally reflected the
relative seriousness of the offense is therefore in
order. Further, you blamed this behavior on others, and
your overall record (including you record of domestic
violence and lack of a solid wage-earning history)
indicates that a more lenient penalty would fail to
afford adequate deterrence to criminal conduct of a
similar nature in the future.
Aponte filed a timely notice of appeal of this sentence
determination with our court.
II
Aponte is before our court today seeking a redetermination of
his release date. He argues that he is entitled to a
redetermination of his sentence because the Parole Commission
“illegally” considered his socioeconomic status in determining his
release date. See 28 U.S.C. § 994(d) (West 1999)(stating that
“[t]he Commission shall assure that the guidelines and policy
statements are entirely neutral as to . . . socioeconomic status of
offenders”); see also U.S.S.G. § 5H1.10 (1999)(stating the same);
4
United States v. Burch, 873 F.2d 765, 768-69 (5th Cir. 1989).
Specifically, Aponte argues he is “being punished more severely
because of his socioeconomic status.” In support of this
contention, Aponte points to various written comments made by
members of the Parole Commission who reviewed his case regarding
his past employment history and his future wage-earning capacity.
After reviewing the statements relied on by Aponte in support
of his claim, we hold that the Parole Commission did not consider
Aponte’s socioeconomic status in determining his release date.3 As
noted by Aponte in his reply brief, “a defendant’s employment
history may be an appropriate consideration in determining his
3
As noted by the D.C. Circuit in United States v. Lopez, 938
F.2d 1293 (D.C. Cir. 1991), “socioeconomic” status refers to “an
individual’s status in society as determined by objective criteria
such as education, income, and employment; it does not refer to the
particulars of an individual life.” Id. at 1297 (emphasis added).
The Lopez court went on to state: “[W]hether one is worse off or
better off, privileged or underprivileged, rich or poor, should not
be relevant in determining one’s sentence.” Id. (citations
omitted).
In the case at bar, the Parole Commission did not sentence
Aponte to a longer prison term based on an objective set of
criteria used to determine his standing (class) in society.
Rather, the Commission considered Aponte’s particular
characteristics--including his employment history--in crafting a
sentence that would deter him from returning to a life of crime.
Compare United States v. Stout, 32 F.3d 901, 903 (5th Cir.
1994)(stating that it was improper for the sentencing court to
consider the defendant’s affluent lifestyle and his 20 years of
service as a judge in determining his sentence), with United States
v. Tsosie, 14 F.3d 1438, 1441-42 (10th Cir. 1994)(stating that
defendant “employment history” and history of providing “economic
support [for] his family” were relevant factors supporting the
sentencing court’s downward departure based on its belief that the
defendant’s actions were “aberrational”); United States v.
Jagmohan, 909 F.2d 61, 65 (2d Cir. 1990)(stating the defendant’s
“employment record” supported a downward departure).
5
sentence within the guideline range.” See 18 U.S.C. § 3661 (West
1999)(stating the general proposition that “[n]o limitation shall
be placed on the information concerning the background, character,
and conduct of a person convicted of an offense which a court of
the United States may receive and consider for the purpose of
imposing an appropriate sentence”); U.S.S.G. § 1B1.4 (1999). In
the case at bar, the Commission, in an attempt to craft a
punishment to deter Aponte from committing future criminal acts,
considered numerous relevant factors--including his job skills and
his potential to gain future employment.
In addition to Aponte’s employment history, the Commission
considered the amount of cocaine he was transporting, his
unwillingness to accept responsibility for his actions, and his
overall record, including his convictions for assault, in
determining his sentence. All of these factors were relevant to
the Commission’s attempt to formulate a punishment to deter Aponte
from committing a similar crime following his release. See United
States v. James, 46 F.3d 407, 407 (5th Cir. 1995)(citing 18 U.S.C.
§ 3553(a) (West 1999))(stating that in determining a sentence, the
court shall consider: “the nature and circumstances of the offense
and the history and characteristics of the defendant; the need for
punishment, deterrence , public protection and
rehabilitation . . . “)(emphasis added); United States v. Lara-
Vilasquez, 919 F.2d 946, 956 (5th Cir. 1990)(quoting U.S.S.G.
§ 1B1.4 (1999))(stating that “the Sentencing Guidelines
6
specifically states that in determining the sentence to impose
within the Guideline range, ‘the court may consider, without
limitation, any information concerning the background, character
and conduct of the defendant, unless otherwise prohibited by
law’”). Consequently, the Commission did not err in considering
Aponte’s employment history and earning capacity in determining his
release date.
III
Aponte’s request for a redetermination of his release date is
D E N I E D.
7