822 F.2d 556 (5th Cir. 1987), 87-1068, Sheary v. United States Parole Com'n

Docket Nº:87-1068
Citation:822 F.2d 556
Party Name:Paul Michael SHEARY, Petitioner-Appellant, v. UNITED STATES PAROLE COMMISSION, Respondent-Appellee.
Case Date:July 28, 1987
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 556

822 F.2d 556 (5th Cir. 1987)

Paul Michael SHEARY, Petitioner-Appellant,

v.

UNITED STATES PAROLE COMMISSION, Respondent-Appellee.

No. 87-1068

United States Court of Appeals, Fifth Circuit

July 28, 1987

Paul Michael Sheary, pro se.

Mark M. Greenberg, Asst. U.S. Atty., Helen M. Eversberg, U.S. Atty., El Paso, Tex., for respondent-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before GEE, JOLLY, and HIGGINBOTHAM, Circuit Judges.

GEE, Circuit Judge:

In October 1982 appellant Sheary was convicted by a jury of conspiring to possess and possessing 17,000 pounds of marijuana with intent to distribute. He was sentenced to a total of six years imprisonment, to be followed by a special parole term of fifteen years. After appealing his conviction without success, he entered prison. The Parole Commission has now denied his application for parole, rating his offense behavior as Category Six severity and concluding that he should serve between 40 and 52 months of his sentence before being released. He then filed a petition for relief pursuant to 28 U.S.C. Sec. 2241. The petition was denied, he appeals, and we affirm.

Sheary presented three claims in his habeas petition. First, he alleged that in applying guidelines adopted after his offense the Parole Commission denied him the protection of the ex post facto clause, U.S. Const. Art. 1 Sec. 9. He also challenged the Parole Commission's finding that his offense should be classified as Category Six severity. Finally, he argued that his due process rights were violated when a codefendant whose status was "nearly identical" to his own, received a less severe rating. None of these claims has merit.

Ex Post Facto Clause

Sheary first points out that at the time of his crime the applicable Parole Commission regulation listed possession of more than 20,000 pounds of marijuana with intent to distribute as an offense of "very high" severity, carrying a minimum indicated period of 24-36 months before release. 28 C.F.R. Sec. 2.20 (1982). By contrast, at the time he applied for parole in 1983, the same offense had been categorized as "Category Six" severity and had a minimum period before release of 40-52 months. 28 C.F.R. Sec. 2.20 (1983). He claims that being subjected to the more burdensome guidelines violates the ex post facto clause, which prohibits laws that make the punishment for a crime more burdensome than it...

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