Henry Anichi v. United States Parole Commission , 383 F. App'x 633 ( 2010 )

FILED
NOT FOR PUBLICATION JUN 11 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HENRY ANICHI, No. 09-72344
Petitioner, BOP No. 05024-707
v.
MEMORANDUM*
UNITED STATES PAROLE
COMMISSION,
Respondent.
On Petition for Review of an Order of the
Bureau of Prisons
Submitted June 8, 2010**
Pasadena, California
Before: D.W. NELSON and GOULD, Circuit Judges, and DOWD, Senior District
Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable David D. Dowd, Jr., Senior United States District
Judge for the Northern District of Ohio, sitting by designation.
Petitioner Henry Anichi, a United States citizen transferred to the United
States to serve a sentence after conviction in Japan, appeals the United States
Parole Commission’s (the “Parole Commission”) release-date determination.
Though Anichi has been released by the Bureau of Prisons, he remains on
supervised release and, thus, may appeal his sentence. United States v. Verdin, 243
F.3d 1174, 1178 (9th Cir. 2001). We VACATE and REMAND for resentencing.
I.
We first reject Anichi’s argument that the Parole Commission’s Treaty
Transfer Determination is unconstitutional because his Japanese sentence
incorporated an additional 119 days of imprisonment due to Anichi’s inability to
pay a fine. Anichi’s Japanese sentence was relevant to his release date calculation
only for purposes of applying 18 U.S.C. § 4106A(b)(1)(C), and the Parole
Commission disregarded the 119-day supplement to Anichi’s sentence when
applying § 4106A(b)(1)(C).
II.
The Parole Commission did, however, err in denying Anichi the “safety
valve” reduction. See U.S.S.G. §§ 2D1.1(b)(11), 5C1.2(a). It is undisputed that
Anichi satisfies all requirements set forth in U.S.S.G. § 5C1.2(a) except the
requirement that “not later than the time of the sentencing hearing, the defendant
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has truthfully provided to the Government all information and evidence the
defendant has concerning the offense.” A defendant bears the initial burden at
sentencing to prove by a preponderance of the evidence that he qualifies for the
safety valve. United States v. Diaz-Cardenas, 351 F.3d 404, 409 (9th Cir. 2003).
Once he makes this showing, the burden shifts to the government to rebut the
defendant’s evidence by showing that the information the defendant supplied to the
government was untrue or incomplete. Id.Anichi met his initial burden by producing Japanese court documents
establishing that prior to sentencing he admitted to Japanese authorities that “he
committed this [offense] in connection with a smuggle-organization [sic] . . . , was
planning to hand over the above cocaine to ‘X’ who was Nigerian and lived in
Osaka[,] and . . . was asked to commit the crime [by] a person other than ‘X.’”
Neither the Parole Commission nor the Hearing Examiner who reviewed Anichi’s
objections to his Treaty Transfer Report attempted to rebut this evidence.
The only adjudicator in this case who examined the safety valve issue was
the Probation Officer who compiled Anichi’s Treaty Transfer Report. The
Probation Officer recommended that Anichi failed to qualify for the reduction
because he was initially untruthful with Japanese authorities at the time of his
arrest. This recommendation contradicts our holding in United States v. Mejia-
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Pimental, 477 F.3d 1100, 1105 (9th Cir. 2007) (“[A]s long as the defendant
provides truthful, complete information before sentencing, previous lies and
omissions will not render him ineligible for the benefit of the safety valve.”
(emphasis added)). To the extent, if any, that the Parole Commission adopted the
Probation Officer’s erroneous recommendation, the Commission abused its
discretion. See, e.g., United States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir.
2009) (en banc) (“[A] district court abuses its discretion when it makes an error of
law.”).
We also note that the Parole Commission concedes that Anichi’s total
sentence exceeds the length of his foreign sentence in violation of 18 U.S.C. §
4106A(b)(1)(C). On remand, the Parole Commission is admonished to ensure that
Anichi’s sentence comports with § 4106A(b)(1)(C).
VACATED and REMANDED.
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