Roman E. Smythe v. U.S. Parole Com. ( 2002 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 02-1653
___________
Roman Eleuterio Smythe, *
*
Petitioner, *
* Appeal from the United States
v. * Department of Justice.
*
U.S. Parole Commission, * [PUBLISHED]
*
Respondent. *
___________
Submitted: November 5, 2002
Filed: November 12, 2002
___________
Before WOLLMAN, FAGG, and LOKEN, Circuit Judges.
___________
PER CURIAM.
Roman Eleuterio Smythe, a United States citizen, was convicted of murdering
a taxicab driver and sentenced to fifteen years in prison by the Republic of Panama.
After serving the first five years of his sentence in Panama, Smythe requested a
transfer to serve the remainder of his sentence in the United States under the Treaty
Between the United States of America and the Republic of Panama on the Execution
of Penal Sentences (the United States-Panama treaty), Jan. 11, 1979, U.S.-Panama,
32 U.S.T. 1565. A United States Magistrate Judge and two public defenders traveled
to Panama for a verification of consent to transfer hearing. See 18 U.S.C. § 4108-09(2000). As part of the hearing proceedings, Smythe signed a consent to transfer form.
Smythe was transferred to the United States on April 22, 1999. Five months later, the
United States Parole Commission (Commission) held a hearing to set Smythe’s
release date. See 18 U.S.C. § 4106A(b)(1)(A) (2000).
At the release date hearing, Smythe argued he should serve no more than two-
thirds of the fifteen-year sentence. In support of this argument, Smythe points to a
statement of sentence computation on the bottom of a document from the Assistant
Director, National Division of Corrections for the Republic of Panama. The
document states Smythe’s crime, sentence, and credit for time served, is signed by the
Assistant Director, and bears the official seal. Below the signature, a statement titled
“computation” states (in translation): “This inmate will have served 2/3 portion of this
sentence on day 02 of the month of September of 2002, and the same in its entirety,
on day 02 of the month of September of 2007.”
The Commission hearing examiner applied the U.S. Sentencing Guidelines
Manual to Smythe’s case as required by 18 U.S.C. § 4106A(b)(1)(B)(i). The
examiner determined Smythe’s offense level to be 43 under U.S.S.G. § 2A1.1 because
Smythe killed the cabdriver during a robbery, and Smythe’s criminal history to be
category I. Smythe’s sentence under the guidelines would be life in prison. Under
18 U.S.C. § 4106A (b)(1)(C), however, the sentence of a transferred prisoner may not
exceed the prison sentence imposed by the foreign court. Thus, the examiner
recommended, and the Commission agreed, that Smythe must serve the full remainder
of the fifteen-year sentence.
Smythe now appeals the determination of the United States Parole
Commission. See 18 U.S.C. § 4106A(b)(2)(A). Smythe contends that his fifteen-year
sentence exceeds the sentence he would have served if he had stayed in Panama, thus
violates the terms of the Convention on the Transfer of Sentence Persons (the
Convention), a treaty that became effective for Panama on November 1, 1999.
Convention on the Transfer of Sentenced Persons, Mar. 21, 1983, art. 10, T.I.A.S.
-2-
10824. Questions of statutory and treaty interpretation are questions of law that we
review de novo. We affirm the release date set by the Commission.
Smythe contends that his fifteen-year sentence violates Article 10, paragraph
2, of the Convention by aggravating the sanction imposed by Panama, again relying
on the two-thirds computation. The Commission argues that the Convention does not
apply, because the Convention did not become effective for Panama until six months
after Smythe was transferred to the United States. The Commission contends that
Smythe’s transfer was governed by the United States-Panama treaty in force at the
time.
Under the United States-Panama treaty, article VI, section 2, the completion of
the offender’s sentence shall be carried out in accordance with the laws of the
receiving state, here the United States. Interpreting an almost identical prisoner
transfer provision in a treaty between the United States and Canada, the Tenth Circuit
concluded that United States law governed the execution of the transferred prisoner’s
sentence. Verner v. United States Parole Comm’n, 150 F.3d 1172, 1176-77 (10th Cir.
1998). We agree, and conclude that under the United States-Panama treaty, United
States law governs the execution of the foreign sentence. Smythe’s fifteen-year
sentence is valid under United States law. Besides, Smythe requested transfer under
the United States-Panama treaty and consented to the application of United States law
when he signed the verification of consent to transfer form.
We reject Smythe’s argument that the Convention must apply instead of the
United State-Panama treaty. Article twenty-two of the Convention governs the
relationship to other conventions and agreements. Article twenty-two, section two
states that if two parties have a separate agreement or treaty on the transfer of
sentenced persons, the parties may apply that agreement in lieu of the Convention.
Thus the Convention does not override the United States-Panama treaty. Further,
article twenty-two, section four states that when two treaties apply, the requesting
-3-
State shall indicate which agreement will apply to the transfer. The United States-
Panama treaty was the only treaty in force at the time, and Smythe’s request for
transfer states “I would like to make use of the benefits regarding the serving of
sentence pursuant to the Treaty signed between Panama and the United States in
1979.” The treaty described in Smythe’s request is the United States-Panama treaty.
In addition, the verification of the consent to transfer form Smythe signed is titled like
the title of the United States-Panama treaty. Thus, we can reasonably conclude that
Smythe, the United States, and Panama intended for the United States-Panama treaty
to apply to Smythe’s transfer.
Even if we applied the Convention, we reach the same result under the
Convention and under 18 U.S.C. § 4106A(b)(1)(C). The statute and the Convention
each state that the sentence calculated by the United States as the receiving state shall
not exceed (or aggravate) the sentence imposed by the foreign court. Because we
reject Smythe’s contention that his Panamanian sentence is ten years, not fifteen
years, it does not matter which treaty applies.
For Smythe’s argument to succeed, Smythe must prove that his sentence should
be only two-thirds of fifteen years (or ten years), and he has not done so. The
statement Smythe relies on provides only a computation. Smythe provided no
supporting documentation stating that he is entitled to release after ten years in
prison. The record does not indicate whether certain terms must be met before
Smythe would have been entitled to release in Panama before the expiration of the
full fifteen-year term, similar to being eligible for parole based on good behavior, or
whether release would have been automatic. In short, we have no way of determining
what the two-thirds computation means. Thus, we accept the computation at face
value, as a calculation, nothing more. Smythe failed to prove the computation has
any force of law to alter the fifteen-year sentence imposed by the Panamanian court.
Because we conclude Smythe’s foreign sentence is fifteen years, not ten years,
Smythe’s United States release date was properly set.
-4-
We thus affirm the decision of the United States Parole Commission. We
grant the motions to supplement the record.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-5-