Alfred Montoya v. United States Parole Commission , 908 F.2d 635 ( 1990 )

SEYMOUR, Circuit Judge.

Alfred Montoya brought this application for habeas corpus relief challenging the decision of the United States Parole Commission to set his parole date outside the applicable guideline range. The district court denied relief. Montoya appeals and we reverse.¹

The Parole Commission is mandated by statute to promulgate guidelines for the exercise of its parole powers. See 18 U.S.C. § 4203(a)(1) (1982), repealed effective Nov. 1, 1987, by the Sentencing Reform Act of 1984, Title II, §§ 218(a)(5), 235, 98 Stat. 1837, 2027, 2031.² These guidelines are meant to reduce the disparity in treatment of similarly situated inmates by providing “a fundamental gauge by which parole determinations are made.” H.R. Conf.Rep. No. 838, 94th Cong., 2d Sess. 26, reprinted in 1976 U.S.Code Cong. & Admin.News 335, 359. Congress thus intended that the guidelines “serve as a national parole policy which seeks to achieve both equity between individual cases and a uniform measure of justice.” Id. To do so,

“[t]he guidelines take into account the circumstances of the individual both in his personal life and with respect to the offense which he has committed, as well as measuring the severity of the offense involved so as to significantly reduce the area of discretion which the Parole Commission, in fact, has in any given case. The guidelines give definiteness to the indefinite nature of most federal criminal cases by reducing the opportunity for sentencing disparity and abuse of discretion and by giving to parole an aura of fairness for both victim and offender.”

S.Rep. No. 369, 94th Cong. 2d Sess. 18, reprinted in 1976 U.S.Code Cong. & Admin.News 335, 340.

The Commission is authorized to “deny release on parole notwithstanding the guidelines ... if it determines that there is good cause for so doing: Provided, that the prisoner is furnished written notice stating with particularity the reasons for its determination, including a summary of the information relied upon.” 18 U.S.C. § 4206(c) (1982), repealed effective Nov. 1, 1987, by the Sentencing Reform Act of 1984, Title II, §§ 218(a)(5), 235, 98 Stat. 2027, 2031. However, if the guidelines are to perform their function of promoting both equality of treatment and the appearance of equity, departures must be the exception. “If decisions to go above or below parole guidelines are frequent, the Commission should reevaluate its guidelines.” S.Rep. No. 369, 1976 U.S.Code Cong. & Admin.News at 360. Congress has cautioned that good cause for departure “means substantial reason and includes only those grounds put forward by the Commission in good faith and which are not arbitrary, irrational, unreasonable, irrelevant or capricious.” Id. at 359. The Commission’s decision to set a release date outside the guidelines under this provision will be affirmed if “ ‘there is a rational basis in the record for the Commission’s conclusions embodied in its statement of reasons.’ ” Misasi v. United States Parole Comm’n, 835 F.2d 754, 758 (10th Cir.1987) (quoting Solomon v. Elsea, 676 F.2d 282, 290 (7th Cir.1982)).

The guidelines establish a presumptive parole date by rating the severity of an offender’s crime and his salient factor score, which is the risk that he will violate parole. See 28 C.F.R. § 2.20 (1989). An offender’s salient factor score, or parole prognosis, is determined by considering the following factors: the number of prior convictions, from none to four or more; prior commitments of more than thirty days, from none to three or more; the offender’s age at the time of committing the current offense; whether the offender had been released from commitment for three years prior to the current offense; whether the offender was on probation, parole or in confinement; and the offender’s history of drug dependence. Id.

In 1983, Montoya was convicted on a guilty plea to one count of conspiracy to import cocaine and one count of transporting a firearm in interstate commerce after a former felony conviction. He received a seven-year term on the conspiracy count and a five-year concurrent sentence on the firearm count. Montoya was on parole from a 1967 conviction at the time these crimes were committed and his sentences on these crimes were to run consecutively to his parole violation term.

The Parole Commission informed Montoya that a decision to go outside the guidelines with respect to his 1983 convictions was warranted because:

“[Y]ou are a more serious risk than indicated by your salient factor score in that you have a history of assaultive/aggres-sive behavior, specifically: 1958 — robbery; and 1967 — murder. Your criminal behavior began in 1953 and has continued until the present time. Less than three years subsequent to your release in 1980, after 13 years of confinement, you involved yourself in new serious criminal behavior involving drugs and possession of a firearm.”

Rec., vol. I, doc. 1, ex. E, at 2. Montoya contends that the record contains no support for the Commission’s conclusion that, due to his history of assaultive/aggressive behavior, he was a more serious risk than indicated by the guidelines. We agree.

The Commission relied on two prior offenses in finding that Montoya had a history of assaultive/aggressive behavior, a 1958 robbery conviction and a 1967 murder conviction. The presentence report prepared in connection with the 1988 convictions describes the 1958 robbery conviction as follows:

“Under Long Beach Superior Court case # 205747, Montoya was sentenced to State Prison as noted after he and his brother, Harold, were convicted of entering an apartment where a poker game was in progress and robbing the participants. Alfred Montoya had a gun in his hand while his brother, Harold, had a lug wrench in his hand. While robbing the victims, Harold Montoya hit one of them on the head twice because he refused to give up the money in his pockets. Alfred Montoya explains that this robbery occurred because the individuals whom he and his brother robbed on this date had robbed the Montoya brothers on a prior occasion.”

Rec., vol. I, doc. 3, def. ex. 19, at 8. The 1967 murder conviction arose out of an attempt by Montoya, his brother, and two others to import marijuana across the border from Mexico. When they were stopped by two border patrol agents, the agents were taken prisoner by the other defendants. Montoya was instructed to take the vehicle containing the marijuana to his home, which he did. The remaining defendants took the agents to a remote area and shot them. Id. at 10.

Montoya points out that the 1967 conviction was on a charge of felony murder and that, as set out above, the undisputed facts in the record establish that he had no part in the actual killings and was not present when they were committed. In denying Montoya relief, the district court concluded that the Commission’s decision was supported by some evidence because the record includes “presentencing reports that contained conflicting versions of whether the petitioner was present at the time of the 1967 murders.” Id., vol. I, doc. 9, at 6. Our review of the record reveals only one presentence report, which was prepared for sentencing on the 1983 crimes. It states unequivocally in describing the 1967 murders that although Montoya was present when the victims were taken prisoner by Montoya’s co-defendants, those co-defendants sent Montoya home before the killings occurred. See id. at doc. 3, ex. 19, at 10. Other Commission documents likewise state that Montoya did not shoot the victims, and was not present at the scene when they were shot. Id. at doc. 3, def. ex. 4, def. ex. 5. Accordingly, the 1967 conviction does not support the Commission’s finding that Montoya has a history of as-saultive/aggressive behavior.

The dissent disagrees, arguing that the record contains evidence of Montoya’s knowing participation in the 1967 murders. In support of this conclusion, the dissent relies on the language of 18 U.S.C. § 1111, the statute under which Montoya was convicted in 1967, which defines murder as “the unlawful killing of a human being with malice aforethought.” The dissent believes that the term “malice aforethought” is some indication that Montoya knowingly participated in the murders. That inference is not valid given the undisputed facts in the record. Malice aforethought as used in section 1111 is a common law term and is therefore interpreted by reference to the common law. See United States v. Fleming, 739 F.2d 945, 947 n. 2 (4th Cir.1984). The Commission does not dispute that Montoya’s murder conviction under section 1111 was premised on the felony-murder doctrine, see Appellee’s Brief at 7, under which one is guilty of murder if a death occurs during the commission of a felony, see, e.g., Model Penal Code § 210.2 comment 6 (Official Draft & Revised Comments 1962). Under the common law, felony murder is in essence a strict liability crime, allowing conviction for a death that was unintended and unforeseen. See generally W. LaFave & A. Scott, Jr., Criminal Law §§ 67, 71 (1972);³ Model Penal Code § 210.2 comments 1, 6.

When, as here, a defendant has been convicted of felony murder, a judgment of conviction stating “murder with malice aforethought” indicates only that the murder occurred in conjunction with a felony. Because the element of malice is supplied by the commission of the felony, the order of judgment and conviction cannot be read to indicate that Montoya knowingly participated in the murders.

The dissent also attempts to distill from this record some support for its assertion that Montoya’s conduct during the 1967 crimes was itself aggressive/assaultive behavior. In so doing, the dissent ignores the record in critical respects. First, the dissent disagrees with our assumption that Montoya’s conviction rested on the felony murder doctrine. However, as stated above, the government has conceded this fact. Second, we cannot agree with the dissent’s assertion that, even if Montoya’s 1967 convictions rest on the felony murder doctrine, the record can be read to support Montoya’s active involvement in the underlying felony. The indictment reveals that the two co-defendants who actually disarmed the Border Patrol Agents, sent Montoya on his way with the marijuana, and then took the Agents away and shot them, were charged with robbing the Agents in violation of 18 U.S.C. § 2112, as well as with murder. Significantly, Montoya was not charged with robbery, and there is no evidence that he played any part in that crime, knew it was going to occur, or was present when it was completed.⁴ Indeed, the record reveals that Montoya’s relatively early parole date on the 1967 convictions was based on the Board’s belief that Montoya was the least culpable of the defendants. See rec., vol. I, doc. 3, defendant’s ex. 5. In sum, the dissent’s assertion that the record can be read to support Montoya’s knowing and active participation in the violent aspects of the 1967 crimes is utterly unsupported.

Although the Commission also relied on a 1958 conviction for robbery, we do not believe that one incident, standing alone, is sufficient to establish a history of assaultive/aggressive behavior, particularly when the evidence is undisputed that while Montoya carried a gun during that crime, it was his co-defendant who assaulted the victim with a wrench.

As we stated in Misasi, 835 F.2d at 758, when a reason given by the Commission for going above the guidelines is factually incorrect or unsupported by the record material upon which the Commission specifically relies, it does not constitute a rational basis for the Commission’s action. Here the primary reason stated by the Commission for departing from the guidelines is Montoya’s history of assaultive/aggressive behavior, a reason we conclude has no rational basis in the record.⁵

In addition, we conclude that the Commission’s action is arbitrary and capricious for another reason. As discussed above, the Commission relied only on the 1958 robbery conviction and the 1967 murder convictions to conclude that Montoya’s history of aggressive/assaultive behavior made him a more serious parole risk than indicated by his salient factor score. However, these same crimes were before the Commission when it considered Montoya’s parole on the 1967 convictions. At that time, the Commission did not believe that these crimes dictated an upward departure from the guidelines; to the contrary, the Commission granted Montoya a relatively early parole within the guidelines based on its conclusion that Montoya was the least culpable participant in the 1967 murders. The Commission has failed to explain why the same two crimes justify two diametrically opposed parole decisions.⁶

Accordingly, we reverse and remand with directions that the district court vacate its judgment and order, and remand the case to the Parole Commission with directions that it vacate its decision and order and that further proceedings it may conduct be consonant with the views expressed herein.

REVERSED.

1 . After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R. App.P. 34(a); 10th Cir.R. 34.1.9. The cause is therefore ordered submitted without oral argument.

2 . The statutes cited in this opinion, now repealed, apply to the determination of Montoya’s parole release date. See Lewis v. Martin, 880 F.2d 288 (10th Cir.1989).

3 . LaFave also notes:

"Murder is a common law crime whose complete development required several centuries. Though murder is frequently defined as the unlawful killing of another 'living human being’ with 'malice aforethought," in modern times the latter phrase does not even approximate its literal meaning. Hence it is preferable not to rely upon that misleading expression for an understanding of murder but rather to consider the various types of murder (typed according to the mental element) which the common law came to recognize and which exist today in most jurisdictions.”

LaFave at 528.

4 . The indictment distinguishes between Montoya and the co-defendants in the murder counts as well. The murder counts against the co-defendants charged them with murder “by means of shooting” and "with premeditation,” rec., supp. vol. I at 1, phrases missing from Montoya’s charge. This omission indicates the felony murder basis of Montoya’s conviction. In addition the co-defendants were sentenced to 30 years plus life, while Montoya was sentenced to two 30 year concurrent terms and paroled after 13 years.

5 .Montoya also argues that the Commission failed to specify with particularity why his prior criminal history justified the decision to go above the guidelines, asserting that he is no poorer a parole risk than the typical offender in his guideline range. In a related argument, Montoya contends that the Commission used impermissible double-counting. The Commission relied on the fact that the 1983 offenses occurred less than three years after his release from commitment, even though this fact is considered in determining an offender’s salient factor score. In view of our rejection of the Commission’s primary reason for going outside the guidelines and our conclusion that Montoya’s eligibility for parole must therefore be reconsidered, we do not address these arguments in detail. However, because of the Commission’s mandate to state its reasons with particularity and this court's condemnation of double-counting, see, e.g., Castaldo v. United States Parole Comm’n, 725 F.2d 94, 96 (10th Cir.1984), Montoya’s arguments are not without some support in the law and the record. Accordingly, if on remand the Commission chooses to go above the guidelines on the basis of Montoya's prior criminal history and the length of his commitment-free period, it should explain how these factors shed light on Montoya’s parole prognosis in a way different from the way they function in setting his salient factor score. See id. at 96-97.

6 . We note some indication in the record that a factor in the Commission’s decision here challenged may have been not the aggressive/as-saultive history upon which the Commission purported to rely, but the fact that Montoya “was given the opportunity to amend his ways by a parole grant and has chosen to resume his activity in trafficking in narcotics.” Rec., vol. I, doc. 3, defendant’s ex. 5, at 1-2. Even if this is a legitimate consideration in the parole determination not adequately considered in setting Montoya’s salient factor score, but see note 5 supra, our review must be based on the reasons actually provided Montoya by the Commission.