676 F.2d 282 (7th Cir. 1982), 80-2740, Solomon v. Elsea

Docket Nº:80-2740.
Citation:676 F.2d 282
Party Name:Ramesh SOLOMON, Petitioner-Appellant, v. Robert I. ELSEA, Warden, Respondent-Appellee.
Case Date:April 22, 1982
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 282

676 F.2d 282 (7th Cir. 1982)

Ramesh SOLOMON, Petitioner-Appellant,

v.

Robert I. ELSEA, Warden, Respondent-Appellee.

No. 80-2740.

United States Court of Appeals, Seventh Circuit

April 22, 1982

Submitted on Record and Brief March 24, 1982.[*]

Page 283

Robert C. Evenstad, Sandstone, Minn., for petitioner-appellant.

Frank Tuerkheimer, Madison, Wis., for respondent-appellee.

Before CUMMINGS, Chief Judge, and SPRECHER and CUDAHY, Circuit Judges.

PER CURIAM.

Ramesh Solomon appeals from a final judgment of the district court who denied his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 (1976). Solomon had been denied parole by the United States Parole Commission (Commission) despite the fact that the guidelines used by the Commission supposedly indicated that Solomon was eligible for release from prison. See 28 C.F.R. § 2.20 (1979). Solomon claims that the Commission improperly considered the magnitude of his offense in reaching its determination to imprison Solomon for a period longer than that recommended by federal regulations. He also alleges that the statement of reasons for going beyond the federal guidelines in his case was insufficient. Finally, Solomon claims that the Commission relied on erroneous information, while ignoring existing positive information, in making his parole determination. Because we conclude Solomon was not improperly denied parole, we affirm.

I.

Appellant entered a plea of guilty in August of 1977 to two counts of possession of hashish with intent to distribute, in violation of 21 U.S.C. § 841, and to one count of causing $65,000 to be transported through customs without declaration, in violation of 31 U.S.C. §§ 1059 and 1101. The drug-related

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counts involved 1,296 pounds of hashish, imported from India, with an estimated street-value of $1,425,600. The appellant's brother, Ashok Solomon, pleaded guilty to identical charges. On the drug-related counts, the appellant was sentenced to prison terms of five and three years, to be served consecutively. This prison sentence was coupled with a $30,000 committed fine. 1 An additional $500,000 committed fine was imposed on the currency count. The sentencing court later changed the nature of the fines from committed to noncommitted.

Ramesh Solomon and his brother Ashok received their initial parole hearing on July 2, 1979. The hearing examiner panel referred the Solomons' parole determinations to the National Commissioners as an "original jurisdiction" matter, recommending that the brothers be continued to the expiration of their sentences. On November 5, 1979, the appellant was informed that his request for parole had been denied. Ashok Solomon received a similar determination.

These determinations constituted final decisions of the Parole Commission. See 28 C.F.R. § 2.27(d). The Solomons then sought judicial review of their parole determinations in district court. In a joint order, the district court denied their petitions for writs of habeas corpus. Ramesh Solomon appeals his adverse parole determination to this Court.

II.

The first issue which we must address is whether the statement of reasons given to Solomon by the Commission is sufficient to constitute proper notice of the grounds justifying his parole denial. Solomon argues that the alleged insufficiency of notice amounted to a denial of due process. However, in order to apply the Due Process Clause to a parole determination, we must first determine whether the federal statute governing parole release determinations creates a protectible liberty interest.

A.

It is axiomatic that before due process protections can apply, there must first exist a protectible liberty or property interest. Averhart v. Tutsie, 618 F.2d 479, 480 (7th Cir. 1980). While an inmate does not have a protectible expectation of parole by virtue of the mere existence of a parole system, the Supreme Court in Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979), concluded that a specific statute governing parole release determinations may give rise to a liberty interest entitled to constitutional protection if it is phrased in such a way as to provide the inmates with a legitimate expectation of release on parole. In Greenholtz, the Court emphasized that their decision rested on the "unique structure and language" of the applicable Nebraska statute and cautioned that whether any other statute created a liberty interest would have to be decided on a case-by-case basis. Greenholtz, supra, 442 U.S. at 12, 99 S.Ct. at 2106. 2

In this case, the applicable federal statute, 18 U.S.C. § 4206, states that inmates who are eligible for parole shall be released if certain conditions are met. The statute provides:

If an eligible prisoner has substantially observed the rules of the institution or institutions to which he has been confined, and if the Commission, upon consideration of the nature and circumstances of the offense and the history and characteristics of the prisoner, determines:

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(1) that release would not depreciate the seriousness of his offense or promote disrespect for the law; and

(2) that release would not jeopardize the public welfare;

subject to the provisions of subsections (b) and (c) of this section, and pursuant to guidelines promulgated by the Commission pursuant to section 4203(a)(1), such prisoner shall be released.

18 U.S.C. § 4206(a) (emphasis added). The mandatory language of 18 U.S.C. § 4206(a) is emphasized by 18 U.S.C. § 4206(c), 3 which states that the Commission may not deviate from the guidelines 4 unless "good cause" exists to do so.

Only slightly different from the federal parole statute is the statutory procedure described in Greenholtz, which expressly mandated that the Nebraska Board of Parole shall order the inmate's release unless it decided that one of the four specified reasons for denial was applicable. 5 It was this "unique structure and language" of the Nebraska statute which created the expectancy of release. Greenholtz, supra, 442 U.S. at 12, 99 S.Ct. at 2106. The similarities between the Nebraska statute and 18 U.S.C. § 4206(a) lead us to the conclusion that 18 U.S.C. § 4206(a), with its provision that if the statutory and regulatory guidelines are met the inmate shall be released, gives rise to the same liberty interests as were found to exist in Greenholtz. 6 Under the mandatory language of the federal parole statute, an inmate has an expectation of parole worthy of due process protection.

B.

Having concluded that 18 U.S.C. § 4206(a) does create a constitutional liberty interest, it must now be determined whether the reason given to Solomon for denial of his parole request is constitutionally as well as statutorily sufficient.

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In its notice to Solomon informing him of the decision to deny his parole request, the Commission stated:

Your offense behavior has been rated as very high severity because of your involvement in the importation and distribution of large quantities of hashish and a currency violation. You have a salient factor score of 10 (see attached sheet). You have been in custody a total of 29 months. Guidelines established by the Commission for adult cases which consider the above factors indicate a range of 24-36 months to be served before release for cases with good institutional program performance and adjustment. After review of all relevant factors and information presented, a decision above the guidelines appears warranted because your offense behavior involved the following aggravating factors: It was of unusual magnitude in that the hashish was valued in excess of $1,000,000 and was part of an international smuggling operation. As required by law, you have also been scheduled for a Statutory Interim Hearing during August 1981. 7

Solomon characterizes this statement as being nothing more than a "pro forma recitation" and "catch-all" of factors.

In United States ex rel. Scott v. Ill. Parole and Pardon Board, 669 F.2d 1185 (7th Cir. 1982), this Court reexamined the test for determining whether a statement of reasons for a denial of parole is sufficient to satisfy the requirements of the Due Process Clause of the Fourteenth Amendment. We approved the continued use of the standard originally adopted by the Second Circuit:

To satisfy minimum due process requirements a statement of reasons should be sufficient to enable a reviewing body to determine whether parole has been denied for an impermissible reason or for no reason at all. For this essential purpose, detailed findings of fact are not required, provided the (Commission's) decision is based upon consideration of all relevant factors and it furnishes to the inmate both the grounds for the decision ... and the essential facts upon which the (Commission's) inferences are based.

Id., at 1191. Quoting United States ex rel. Johnson v. Chairman of New York State Board of Parole, 500 F.2d 925, 934 (2nd Cir.), vacated as moot, 419 U.S. 1015, 95 S.Ct. 488, 42 L.Ed.2d 289 (1974).

The statement of reasons given to Solomon meets this standard. The statement points out that the Commission denied his request for parole because of the unusual magnitude of Solomon's crimes-an aggravating factor that has taken his case out of the purview of the parole guidelines. The essential facts upon which the Commission's inferences are based-the importation, as part of an international smuggling operation, of hashish valued in excess of $1,000,000-are then adequately furnished. This listing of the essential facts also satisfies the second prong of 18 U.S.C. § 4206(c) which requires a "summary of the information relied upon." 8 While the "summary of information" in this case is not as complete as it might be, the Commission has demonstrated sufficient factual basis for its stated reason for denying parole.

In its entirety, the statement adequately...

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