Ortiz v. United States Parole Commission

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 18, 2008
No. 08-60409
Summary Calendar Charles R. Fulbruge III
Clerk
JESUS ORTIZ
Petitioner
v.
UNITED STATES PAROLE COMMISSION
Respondent
Appeal from a Decision of the
United States Parole Commission
(94227-180)
Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
Jesus Ortiz was convicted of kidnaping in Mexico. Pursuant to a treaty
with the United States, he was transferred to a U.S. prison to serve his sentence.
Under the law, he is required to serve a sentence calculated by the U.S. Parole
Commission (“Commission”) that is the same one he would have received for an
equivalent U.S. crime if he had been sentenced in the United States. Following
a hearing, Ortiz received a within-guidelines sentence of 150 months from the
Commission, which he now appeals. We AFFIRM.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
No. 08-60409
Ortiz pleaded guilty in a Mexican court to kidnaping and received a
sentence of over 15 years. After his appeals in the Mexican courts were
exhausted, he sought transfer to a U.S. prison. The Commission was required
to determine a release date for Ortiz based upon the sentence he would have
received had he committed the same crime in the U.S. and been sentenced
according to federal sentencing rules. 18 U.S.C. § 4106A(b)(1)(A) (2000).1
Ortiz appeared for a hearing before a hearing examiner. Pursuant to his
sentencing report, his guidelines range was calculated at 140-175 months, a
calculation he does not dispute. He received a within-guidelines sentence of 150
months, at the lower end of the range. He concedes that such a sentence is
entitled to a presumption of reasonableness and is reviewed under an abuse of
discretion standard in a similar manner to this court’s review of a sentence by
a federal district court. Id. at § 4106(b)(2)(B). See Gall v. United States, 128 S.
Ct. 586, 597 (2007)(substantive reasonableness is reviewed under an abuse of
discretion standard); Rita v. United States, 127 S. Ct. 2456, 2466-68 (2007)(a
presumption of reasonableness applies to a properly-calculated within-guidelines
sentence); Molano-Garza v. U.S. Parole Comm’n, 965 F.2d 20, 23 (5th Cir.
1992)(review of a Commission release date determination under a treaty is the
same as review of a federal district court sentence). However, he contends that
the sentence is substantively unreasonable, because it fails to take into account
a number of factors including his history of abuse as a child and his torture and
abuse at the hands of police and prison officials while in Mexico.
We have carefully reviewed the pertinent portions of the record, including
the transcript of Ortiz’s hearing and the examiner’s findings. It is apparent from
both the findings and the statements on the record that the examiner gave
1
However, the “combined periods of imprisonment and supervised release that result
from [the Commission’s] determination shall not exceed the term of imprisonment imposed by
the foreign court on that offender.” Id. at § 4106A(b)(1)(C).
2
No. 08-60409
weight to the harsh treatment Ortiz received in recommending something lower
than the top end of the range in spite of what the examiner termed the “very
serious” crime of kidnaping accomplished with weapons and in the context of a
drug deal gone bad. The Commission also specifically found that the torture was
the reason for sentencing at the “bottom of the guideline range.”2 We find no
abuse of discretion in the examiner’s recommendation of 150 months and the
Commission’s decision to adopt that recommendation.
Accordingly, the Commission’s release determination is AFFIRMED.
2
Petitioner contends that the Commission stated that it was basing his release date on
a sentence at the “bottom” of the guidelines, meaning 140 months, whereas the Commission
used 150 months. In truth, the Commission circled “bottom” in the following sentence: “The
reason(s) for the decision at the top/middle/bottom of the guideline range is/are as follows . .
. .” In a range of 35 months between 140 and 175, 150 is in the lowest third of the range and
thus, the “bottom of the guideline range.”
3