Welsh v. United States Parole Commission

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 2, 2008
No. 06-60434 Charles R. Fulbruge III
Clerk
RICHARD JOHN WELSH
Petitioner
v.
UNITED STATES PAROLE COMMISSION
Respondent
Petition for Review of an Order of the
United States Parole Commission
Before REAVLEY, STEWART, and OWEN, Circuit Judges.
REAVLEY, Circuit Judge:
Richard John Welsh, a United States citizen convicted of two separate
offenses in Mexico and subsequently transferred to the United States pursuant
to a transfer treaty, seeks review of the release date determined by the United
States Parole Commission. Welsh contends that the Parole Commission’s
release date results in a combined term of imprisonment and supervised release
that exceeds the term of imprisonment the Mexican courts imposed because the
Parole Commission erroneously construed his two Mexican judgments to run
consecutively rather than concurrently. We conclude that no error is shown, and
we deny the petition.
No. 06-60434
I. Facts and Proceedings
On October 8, 2004, Mexican state police arrested Welsh in Reynosa,
Tamaulipas, Mexico, and charged him with home burglary. Police subsequently
served Welsh with an outstanding warrant for robbery in a separate case.1 In
April 2005 Welsh was convicted of the robbery offense, and the Mexican court
sentenced him to four years in a Mexican prison. In July 2005 Welsh was
convicted of the home burglary offense and sentenced to a term of imprisonment
of three years and two months.
In October 2005 Welsh submitted two petitions for a transfer to the United
States pursuant to a prisoner transfer treaty between the United States and
Mexico.2 As part of the Treaty, the Parole Commission must determine a release
date for a transferred prisoner conforming to the sentence imposed by the
foreign court.3 Welsh indicated in his first transfer petition that he had served
one year and one day of his sentence for robbery and had six years, one month
and 29 days remaining on his sentence. In the second petition, Welsh indicated
that he had served one year and four days of the sentence for burglary and had
six years, one month, and 24 days remaining to be served. Documents from the
Mexican authorities also indicated that Welsh’s two sentences were to run
consecutively. The Parole Commission conducted a transfer hearing and
determined that, based on a total Mexican sentence of seven years and two
1
Although Welsh was charged with “robbery,” it appears that the offense would be
recognized as burglary in the United States. We will refer to Welsh’s two offenses as burglary
and robbery to be consistent with the Mexican charges and to differentiate between the two.
2
See Treaty Between the United States of America and the United Mexican States on
the Execution of Penal Sentences, U.S.–Mex., Nov. 25, 1976, 28 U.S.T. 7399 (“the Treaty”).
3
See 18 U.S.C. § 4106A(b)(1)(A) & (C).
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No. 06-60434
months, Welsh’s release date from imprisonment should be February 10, 2007,
to be followed by 36 months of supervised release.4
II. Discussion
Welsh appeals the Parole Commission’s decision, arguing that his release
date is erroneous. When a prisoner is transferred to the United States to
complete a sentence of imprisonment, the Parole Commission determines the
prisoner’s release date and a period and conditions of supervised release as
though the prisoner were convicted in a United States district court of a similar
offense.5 However, “the Commission may not authorize a release date which
results in the total period of incarceration, plus the period of supervised release,
being less than or greater than the total foreign-court-imposed sentence.”6
The Parole Commission’s determination may be appealed to the United
States Court of Appeals for the circuit in which the offender is imprisoned.7 We
decide the appeal in accordance with 18 U.S.C. § 3742, reviewing the Parole
Commission’s determination as though it had been a sentence imposed by the
United States district court.8 We review de novo a sentence that allegedly
exceeds the maximum authorized by statute.9 We accept the Parole
Commission’s factual findings unless clearly erroneous.10
4
Welsh has since completed his term of incarceration and is currently serving his
supervised release term.
5
18 U.S.C. § 4106A(b)(1)(A).
6
Cannon v. U.S. Dep’t of Justice, U.S. Parole Comm’n, 973 F.2d 1190, 1192 (5th Cir.
1992).
7
§ 4106A(b)(2)(A).
8
Navarrete v. U.S. Parole Comm’n, 34 F.3d 316, 318 (5th Cir. 1994) (citing 18 U.S.C.
§ 4106A(b)(2)(B)).
9
United States v. Ferguson, 369 F.3d 847, 849 (5th Cir. 2004).
10
Navarrete, 34 F.3d at 318.
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No. 06-60434
Welsh does not challenge the sentences of the Mexican courts.11 Instead,
he argues that the Parole Commission erroneously construed his Mexican
sentences to be consecutive. He concedes that documents sent by the Mexican
authorities indicate that the two sentences run consecutively, but he contends
that the sentences were actually concurrent. Welsh relies on two documents
that he claims to be from his Mexican convictions. A translation from the
document in the robbery conviction states that the four-year sentence “will be
calculated beginning [October 12, 2004,] the date when according to the record
he was imprisoned regarding the present acts or otherwise beginning when he
has served any other sentence depriving him of liberty that may have been
previously given to him.” The translation of the document for the home burglary
conviction, which was imposed after the sentence for robbery, states that the
three-year-and-two-month sentence will “be computed beginning on [October 8,
2004, the] date in which according to the record he was imprisoned because of
the instant deeds.”
Welsh reasons that at the time of the first sentence for robbery there was
no “other sentence depriving him of liberty” previously imposed; therefore, that
sentence began on October 12, 2004. He further reasons that because the second
sentence for burglary began on October 8, 2004, and was not ordered to run
consecutive to the robbery sentence, both sentences ran concurrently and the
Treaty precluded the Parole Commission from authorizing a release date that
exceeded a maximum of four years from the time that his sentences began
11
Indeed, Welsh is foreclosed by the terms of the Treaty from challenging his Mexican
convictions and sentences in the United States because Mexico retains “exclusive jurisdiction
over any proceedings, regardless of their form, intended to challenge, modify or set aside
sentences handed down by its courts.” Treaty, art. VI, 28 U.S.T. 7399. Rather than trying to
challenge, modify, or set aside his sentence, Welsh disputes the manner in which the Parole
Commission determined what his Mexican sentence was when determining his release date,
a dispute over which we have jurisdiction. See 18 U.S.C. § 4106A(b)(2)(A).
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No. 06-60434
running. He further argues that to the extent any documents from the Mexican
court conflict with the sentencing order, the oral pronouncement controls.
At oral argument, Welsh clarified his view that under our decision in
Powell v. U.S. Bureau of Prisons12 the Parole Commission was limited to
examining only the purported sentencing documents upon which he now relies.
Under this view, the Parole Commission would be precluded from examining any
other Mexican documents for evidence of Welsh’s sentence. The issue, then, is
whether the Parole Commission was required to determine Welsh’s release date
by looking only to the translated sentencing documents and to ignore any other
documents from Mexico.
In Powell, we addressed the effect that should be given to work credits
previously earned in Mexico when a transferred prisoner is paroled in the United
States but commits a parole violation. Because work credits are not otherwise
provided for in the Treaty, we held that the laws of the United States apply so
that when a prisoner’s parole is revoked any previously earned work credits are
treated like good time credits and are subject to forfeiture.13 We rejected
Powell’s argument that the work credits had permanently reduced the sentence,
noting that the credits were not part of the original Mexican sentence and had
been administratively awarded.14 We also noted that the work credits recorded
in a Mexican sentence computation document were not evidence of a
modification to the judicially-imposed sentence because that document, too, was
an administrative document.15
12
695 F.2d 868 (5th Cir. 1983).
13
Powell, 695 F.2d at 871–72.
14
Id.
15
Id. at 872.
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No. 06-60434
The lesson of Powell is that authorities in the United States may not
change the sentence imposed by a Mexican court, and we eschewed reliance on
mere administrative documents as evidence of the sentence. But we specifically
noted that the Treaty distinguishes between mere “sentence computation”
documents and documents “certified” by the transferring state pursuant to the
Treaty as recording the sentence of the court.16
Under art. IV, § 7 of the Treaty, Mexico “shall furnish” to the United
States at the time of a transfer “a statement showing the offense of which the
offender was convicted, the duration of the sentence, the length of time already
served by the prisoner and any credits to which the offender is entitled.”17 The
statement must be translated and “duly authenticated.”18 Mexico is also
required to provide a “certified copy of the sentence handed down by the
competent judicial authority and any modifications thereof.”19
In the instant case, the record contains several documents that appear to
be certified.20 Buried within the record are two Spanish-language documents
that may certify the copies of the sentences. There are no English translations
of these documents, however, and there does not appear to be any mention of the
Treaty. Their placement within the record does not clearly connect the
certification with the sentences.
16
Id. at 872 n.7.
17
Treaty, art. IV, § 7, 28 U.S.T. 7399.
18
Id.
19
Id.
20
The record in this case is a jumble of pages, some translated and some untranslated,
often duplicative, unnumbered and in no order. The Parole Commission and counsel have
exercised no care to afford this court with an understandable record where we are asked to
decide a prisoner’s freedom from incarceration.
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No. 06-60434
On the other hand, the record also contains a document from the Mexican
State Department of Public Security in both English and Spanish that indicates
Welsh’s sentences were to run consecutively. This document indicates on its face
that it is a certification of the sentence pursuant to the Treaty. Although the
record in this case is disjointed and confusing, and the exact nature of this
document is also not entirely clear, what is clear is that this document appears
to be the only one certified pursuant to the Treaty. We do not read Powell as
requiring the Parole Commission to ignore such a document. Indeed, the
statutes implementing the Treaty for the United States require the Parole
Commission to consider “any documents provided by the transferring country”
along with any recommendation by the United States Probation Service when
determining the prisoner’s release date.21
The preservation of comity between sovereign states is of paramount
importance in the Treaty. As noted in Cannon, Congress has recognized that no
country would accept a treaty “‘which would permit the courts of the Receiving
State to set aside or modify a sentence imposed by the courts of the Transferring
State. Otherwise the fundamental sovereignty of a nation over crimes
committed within its territorial boundaries would be impaired.’”22 The
preservation of the transferring state’s sentence is served by the Treaty
provision for a certification of the sentence from that state. To ignore a
document certified on its face pursuant to the Treaty would impair the
sovereignty of the transferring state.
21
18 U.S.C. § 4106A(b)(1)(B); see also 18 U.S.C. § 4105(c)(1) (providing that certain
sentencing credits are applied “for a sentence of the length of the total sentence imposed and
certified by the foreign authorities” (emphasis added)).
22
Cannon v. U.S. Dep’t of Justice, U.S. Parole Comm’n, 973 F.2d 1190, 1192 (5th Cir.
1992) (quoting H.R. REP. NO. 95-720, 95th Cong., 1st Sess., at 42 (1977), as reprinted in 1977
U.S.C.C.A.N. 3146, 3164–65).
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No. 06-60434
To this end, absent a clear error or a manifest injustice, we believe that
authorities in the United States must be permitted to rely on documents
certified pursuant to the Treaty and that purport to show the transferred
prisoner’s foreign sentence. There must be a clear and indisputable legal error
resulting from the Parole Commission’s release date determination before a
transferred prisoner may obtain relief. We do not find that Welsh has shown a
clear legal error.
The English translations of the sentencing documents upon which Welsh
relies do not indicate any certification under the Treaty, and they are
ambiguously phrased. The sentencing document for robbery refers to a
potentially previous sentence even though there was no previously imposed
sentence, and the second sentencing document for burglary refers to no other
sentence even though that sentence was computed to begin four days before the
previously imposed robbery sentence. Taken together, the sentences could be
read to run concurrently, but we do not agree that they must be read that way
as neither sentence references concurrency and one suggests the possibility of
consecutive terms. Furthermore, Welsh’s own transfer petitions, signed by
Welsh and representatives from Mexico and the United States, represented that
the sentences were consecutive.
We cannot say based on the current record that the certification of the
sentences as consecutive was clearly wrong. We leave for another day
consideration of the remedy should a prisoner show that a certification from the
transferring state is clearly wrong. We conclude that the Parole Commission did
not commit a legal error in its release date determination.
PETITION DENIED.
8