Contreras v. USPC

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-60073
Summary Calendar
RAFAEL CONTRERAS,
Petitioner-Appellant,
versus
UNITED STATES PAROLE COMMISSION,
Respondent-Appellee.
Appeal from the Determination of the
United States Parole Commission
(86644-080)
January 5, 2000
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Petitioner, Rafael Contreras, is a federal prisoner
transferred to the United States under a prisoner exchange treaty1
to serve a Mexican sentence of 11 years, 6 months, imposed for
transporting 112 kilograms of marijuana. The United States Parole
Commission (“the Commission”) determined that the petitioner would
serve 51 months of imprisonment followed by 36 months of
supervised release. Under 18 U.S.C. § 4106A(b)(2), Contreras
appeals the Commission’s determination. We affirm.
Contreras’s main argument is that the Commission denied
him notice of and opportunity to comment on the bases for its
*
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this opinion should not be published and is not precedent except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.
1
Treaty on Execution of Penal Sentences, Nov. 25, 1976,
U.S.-Mex., 28 U.S.T. 7399, T.I.A.S. No. 8718 [hereinafter
“Treaty”].
sentencing guideline determination. The Commission’s regulations
state that, at a special transferee hearing, the Commission must
provide the transferee with notice of the proposed guideline
determinations and an opportunity to comment on them. See 28
C.F.R. § 2.62(h)(1)-(4). The hearing examiner then makes a
guideline-based recommendation as to a release date. This
recommendation is reviewed by one or more “executive” hearing
examiners, who are not present at the hearing. See 28 C.F.R.
§ 2.62(h)(6). When two executive examiners concur, they form a
“panel,” which forwards a recommendation to the Commission for a
final decision. See 28 C.F.R. § 2.62(h)(6); 28 C.F.R. § 2.23.
In Contreras’s case, two executive hearing examiners
decided not to follow the hearing examiner’s recommendation as to
guideline range. Instead, they drew different inferences from the
facts at issue, and they raised Contreras’s guideline range.
Contreras argues that he was entitled to comment on this
recalculation. In particular, he contends that the Commission’s
denial of an opportunity to comment on this recalculation violated
both the Commission’s governing regulations and federal due
process. Because Contreras has challenged the Commission’s
construction of its regulations, we review his claim de novo. See
Hansen v. United States Parole Commission, 904 F.2d 306, 309 (5th
Cir. 1990).
Both of Contreras’s arguments, that the Commission
violated its regulations as well as due process, are without merit.
The record reflects that the Commission fully complied with the
2
requirements of § 2.62, its governing regulation. Petitioner
received notice in his postsentence investigation report2 (“PIR”)
that an acceptance of responsibility adjustment would be at issue
during his transfer hearing. In his written objections to the PIR,
petitioner’s counsel gave notice that a safety valve reduction
should be at issue as well.3 Thus, petitioner had notice that both
an acceptance of responsibility and a safety valve adjustment would
be under consideration at the special transferee hearing.4
Moreover, the record reflects that petitioner had both the
“opportunity to comment upon the guideline estimate contained in
the postsentence investigation report . . . and to present
arguments and information relating to the Commission’s final
guideline determination and decision.” 28 C.F.R. § 2.62(h)(4).
Once the hearing examiner submits his recommended
guideline determination to the executive hearing examiners, there
is nothing in the Commission’s regulations that requires the
executive hearing examiners to give a prisoner further opportunity
to make his case. See 28 C.F.R. § 2.23. The Commmission may order
a rehearing at its discretion5, but no rehearing is required,
provided that the Commission bases its decision on the same facts
that were at issue during the transferee hearing. See United
States v. Knight, 76 F.3d 86, 88 (5th Cir. 1996) (finding, in the
2
See 28 C.F.R. § 2.62(c),“Postsentence report.”
3
See 28 C.F.R. § 2.62(d),“Opportunity to object.”
4
See 28 C.F.R. § 2.62(e), “Special Transferee Hearing.”
5
28 C.F.R. § 2.62(i)(3).
3
context of a sentencing guidelines dispute, that if the defendant
has actual knowledge of the facts on which the district court bases
an enhancement or a denial of a reduction, the district court need
not provide defendant with notice of its grounds for making the
enhancement or reduction). Here, the executive hearing examiners
based their recommendation on the same facts that were at issue
during the transferee hearing. Contreras was aware of these facts
and, indeed, was able to advocate inferences from these facts that
were favorable to his case. The executive hearing examiners did
not dispute these facts but rather drew different inferences from
them, which dictated their different guideline recommendation.
Neither can Contreras argue that he was entitled to make
his case to the executive hearing examiners because he did not
fully press his case during his special transferee hearing.
Contreras was on ample notice that the final guideline
determination rested with the Commission, not with the hearing
examiner, and that the transfer hearing would be his only
opportunity to enter all his possible arguments into the record.
The Commission’s regulations themselves refer to the examiner’s
“recommended” findings of fact, 28 C.F.R. § 2.62(h)(6), and to the
Commission’s “final guideline determination and decision.” 28
C.F.R. § 2.62(h)(4). Moreover, the hearing examiner, at the close
of the hearing, reminded petitioner that his decision was not
final. Finally, the Fifth Circuit has made it clear that the
transferee hearing need not be conducted by a final decision maker.
See Hansen v. United States Parole Commission, 904 F.2d 306, 311
4
(5th Cir. 1990)(permitting the special transferee hearing to be
conducted by hearing examiners, with the final release
determination to be made by the Commission.)
On the basis of the preceding review, this Court is
unable to conclude that the Commission violated its regulations in
this action.6 Nor is there any basis for concluding that the
Commission’s regulations violate due process.7 Contreras was
afforded a sufficient opportunity to offer both legal and factual
arguments on the issues relevant to his sentencing. Finally,
because this Court finds that the Commission complied fully with
its regulations, there is no need to consider Contreras’s arguments
for remand.
Accordingly, the decision of the United States Parole
Commission is AFFIRMED.
6
Unable to make an effective argument that the Commission
violated 28 C.F.R. §§ 2.62, 2.23, Contreras argues that Federal
Rule of Criminal Procedure 32 applies to transfer treaty
determinations and that the Commission violated Rule 32's notice
and hearing requirements. This argument is quickly disposed of by
noting that there is no authority, either in the Commission’s
implementing statute, 18 U.S.C. § 4106A, or in its governing
regulations, for applying Rule 32 to transfer treaty cases.
Contrary to Contreras’s assertion, Roeder v. United States Parole
Commission, No. 93-4114, 5th Circuit, Sep. 10, 1993, does not
decide the question whether Rule 32 applies to transfer treaty
cases.
7
Any suggestion by Contreras that the Commission violated
due process by refusing to follow procedures mandated by its
internal policy guidelines is adequately countered by James v.
United States Parole Commission, 159 F.3d 1200 (9th Cir. 1998).
There, on facts similar to the instant case, the court held that
the Commission’s internal policy manual did not create due process
rights in others. James, 159 F.3d at 1205.
5