Lychanko, Valentin v. Davis, Randy

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 5, 2005*
Decided April 6, 2005
Before
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 04-3386
VALENTIN N. LYCHANKO, Appeal from the United States District
Petitioner-Appellant, Court for the Southern District of
Illinois
v.
No. 01-792-GPM
RANDY DAVIS,
Respondent-Appellee. G. Patrick Murphy,
Chief Judge.
ORDER
Valentin Lychanko filed a petition for a writ of habeas corpus under 28
U.S.C. § 2241, challenging a 1994 decision of the United States Parole Commission
setting his presumptive parole date at 240 months after his commitment to custody.
The district court denied the petition. On appeal Lychanko argues that the
Commission impermissibly applied the parole rescission guidelines in determining
his presumptive parole date, and asks that the date be advanced 32 months. We
affirm.
In 1985 Lychanko was sentenced to 35 years’ imprisonment in the United
States District Court for the District of Nevada after being convicted of bank
*
After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
No. 04-3386 Page 2
robbery, armed bank robbery, escape, and attempted escape. In 1987, he was
convicted in the Central District of California for conspiracy to escape, and the
court imposed a four-year sentence to be served consecutively with his existing
sentence. In October 1994, in anticipation of his eligibility for parole in January
1995, the Commission held an initial parole hearing for Lychanko. The
Commission denied parole and set a presumptive parole date of February 6,
2005—240 months from date of Lychanko’s commitment. First, the Commission
assigned a range of 60 to 72 months for the robberies, based on Lychanko’s salient
factor score of one and the Category Five severity rating assigned to robbery. See
28 C.F.R. § 2.36, ch. 3, subch. C, ¶ 321(a). Then the Commission added an
additional 8 to 16 months for each of four attempted escapes and one successful
escape (apparently counting the escape and attempt that yielded his 1985
convictions plus three attempts that occurred after Lychanko began serving his
sentence). Rather than assigning a guideline range for these offenses based on the
severity ratings in 28 C.F.R. § 2.20, the Commission consulted the rescission
guideline at 28 C.F.R. § 2.36(a)(2)(i)(A) to ascertain the correct penalty. The
Commission determined that the total applicable range for the robberies and the
escapes was 100 to 152 months, and it then departed upward because Lychanko
was “a more serious risk than indicated by [his] salient factor score.”
After exhausting his administrative remedies, Lychancko filed a petition for
habeas corpus in December 2001. He challenged the Commission’s calculation of
his presumptive parole date on several grounds, including the application of the
rescission guideline to the escape and the attempted escape for which he was
convicted in 1985. Lychanko argued that the rescission guideline in effect in 1994
could be used only to rate conduct occurring in prison, not the conduct for which the
term of imprisonment was imposed. A magistrate judge issued a Report and
Recommendation addressing all of Lychanko’s challenges and recommending that
his petition be denied. The magistrate judge concluded that the Commission’s
application of the rescission guideline was permissible, reasoning that the parole
guidelines “in effect adopt the Rescission Guidelines relative to escape, without
consideration as to whether or not they would otherwise be applicable.” Lychanko
filed timely objections to the report. The district judge adopted the Report and
Recommendation and dismissed Lychancko’s petition with prejudice.
On appeal Lychanko argues anew that in 1994 the Commission
impermissibly used the rescission guideline then in effect in calculating his
presumptive parole date, because his escape and one of his attempted escapes
occurred before his sentence commenced. Our review is limited because the
Commission has wide discretion over parole decisions. Slader v. Pitzer, 107 F.3d
1243, 1246 (7th Cir. 1997). We will grant habeas corpus relief only when there is
no rational basis for the Commission’s action. Id.; Solomon v. Elsea, 676 F.3d 282,
290 (7th Cir. 1982).
No. 04-3386 Page 3
In determining a prisoner’s parole date, the Commission uses guidelines that
are based on the characteristics of both the offense and the offender. Schiselman v.
United States Parole Comm’n, 858 F.2d 1232, 1243 (7th Cir. 1988). Offenses
receive a severity rating, Category One to Category Eight, and offenders receive a
“salient factor score.” These two ratings are used to determine a guideline range—a
suggested period of incarceration prior to parole. If, however, a prisoner violates
disciplinary rules or engages in criminal conduct, the rescission guidelines set forth
at 28 C.F.R. § 2.36 provide for additional time to be added to the prisoner’s period
of incarceration. The severity ratings for a wide range of offenses are listed at 28
C.F.R. § 2.20. That regulation instructs the Commission to grade an escape as
Category Three unless it was “in connection with another offense for which a
severity rating can be assessed.” 28 C.F.R. § 2.20, Ch. 6., subch. B, ¶ 616. In that
instance, the Commission is instructed to “grade the underlying offense and apply
the rescission guidelines to determine an additional penalty.” Id. The rescission
guideline in turn prescribes an additional 8 to 16 months for escape or attempted
escape. 28 C.F.R § 2.36(a)(2)(i)(A).
Lychanko argues that the application of rescission guideline to criminal
conduct that he committed before his sentence began contradicts the plain language
of the rescission guideline in effect in 1994, which generally applied to “disciplinary
infractions or new criminal behavior committed by a prisoner subsequent to the
commencement of his sentence and prior to his release on parole.” 28 C.F.R.
§ 2.36(a) (1994).1 The Commission assigned a range of 8 to 16 months for each of
Lychancko’s four escape attempts and his one escape although two of these offenses
occurred before he was committed. The Commission essentially argues that for
escapes committed “in connection with other offenses,” § 2.20 incorporates by
reference the rescission guideline.
In arguing that the rescission guideline cannot apply to criminal conduct
that occurs before the offender’s sentence begins, Lychanko relies on Wilson v.
United States Parole Commission, 193 F.3d 195 (3d Cir. 1999), in which the Third
Circuit held that the rescission guideline was improperly applied in calculating the
appropriate penalty for contract murders that were committed prior to the
commencement of the parole applicant’s sentence. However, in that case the
appropriate penalty for the crimes was found in § 2.20, and the Commission had no
reason to resort to the rescission guideline to determine the applicable guideline
range. In contrast, § 2.20 directs the Commission to apply the rescission guideline
1
In 1999 the rescission guidelines were amended to clarify that they are to be
applied to criminal conduct “committed by a prisoner during any period of
confinement that is credited to his current sentence (whether before or after
sentence is imposed).” 28 C.F.R. § 2.36(a).
No. 04-3386 Page 4
to ascertain the penalty for an escape “in connection with another offense.”
Lychanko does not dispute that his escape and attempted escape were committed
“in connection” with other offenses. His argument that the 1994 rescission
guideline could never be applied to criminal conduct occurring before the
commencement of a prisoner’s sentence ignores the language of § 2.20 incorporating
the rescission guideline for certain escapes. Given the deferential standard with
which we review the Commission’s actions, we cannot say that its decision was
without a rational basis. Accordingly, the judgment of the district court is
AFFIRMED.