Alessi v. Quinlan, s. 1104
| Decision Date | 06 July 1983 |
| Docket Number | D,1373,Nos. 1104,s. 1104 |
| Citation | 711 F.2d 497 |
| Parties | Virgil ALESSI, Petitioner-Appellee-Cross-Appellant, v. J. Michael QUINLAN, Warden, Federal Correctional Institution, Otisville, New York, et al., Respondents-Appellants-Cross-Appellees. ockets 82-2358, 83-2006. |
| Court | U.S. Court of Appeals — Second Circuit |
Stephen A. Dvorkin, Asst. U.S. Atty., New York City (John S. Martin, Jr., U.S. Atty., Peter C. Salerno, Asst. U.S. Atty., New York City, on brief), for respondents-appellants-cross-appellees.
John L. Pottenger, Jr., New Haven, Conn., for petitioner-appellee-cross-appellant.
Before LUMBARD, NEWMAN, and PRATT, Circuit Judges.
Government respondents appeal from the November 8, 1982, judgment of the District Court for the Southern District of New York (Robert W. Sweet, Judge) granting Virgil Alessi's petition for a writ of habeas corpus. The District Court concluded that the United States Parole Commission ("the Commission") had engaged in impermissible double counting when it set Alessi's presumptive parole date beyond the time period prescribed by the parole guideline for prisoners with Alessi's offense behavior and offender characteristics, 563 F.Supp. 911. See 28 C.F.R. § 2.20 (1982). For reasons set forth below, we reverse.
In 1972, in the District Court for the Eastern District of New York, Alessi pled guilty to a one-count information charging him with conspiracy to possess and distribute narcotics in the Eastern District. Pursuant to a plea agreement, he received a five-year suspended sentence with a mandatory three-year special parole term. In 1975, a federal indictment returned in the Southern District of New York charged Alessi with aiding and abetting a conspiracy to distribute narcotics in the Southern District. The acts alleged in the 1975 indictment all took place in the Eastern District during the period covered by the 1972 information, but the 1975 indictment alleged that Alessi was aware that the narcotics were destined for distribution in the Southern District. After unsuccessfully challenging his inclusion in the 1975 indictment as a violation of his plea agreement with the Eastern District, see United States v. Alessi, 544 F.2d 1139 (2d Cir.), cert. denied, 429 U.S. 960, 97 S.Ct. 384, 50 L.Ed.2d 327 (1976), Alessi pled guilty. On January 5, 1977, the District Court for the Southern District of New York (Dudley B. Bonsal, Judge) sentenced Alessi to thirteen years on the narcotics charge to be followed by a six-year special parole term. See Alessi v. United States, 653 F.2d 66, 67 (2d Cir.1981) (). 1
In August 1980, the Commission set January 4, 1984, as Alessi's presumptive date of release, after eighty-four months of incarceration. The Commission determined that the severity of Alessi's offense behavior was "Greatest I" because he had taken a managerial role in a large-scale drug operation involving the distribution of more than 50 grams of pure heroin. The Commission also concluded that Alessi's offender characteristics warranted a salient factor score of nine. Under Parole Commission guidelines, a prisoner with Alessi's salient factor score and offense behavior could normally expect a presumptive parole release date no later than May 1981 after fifty-two months of imprisonment. See 28 C.F.R. § 2.20. However, the Commission elected to set a release date beyond the pertinent 40-52 month guideline range because of aggravating factors: Alessi's offense behavior involved more than twelve co-defendants and existed for more than four years. See id. § 2.20(c). In determining Alessi's offense behavior and in setting a release date beyond the guideline range, the Commission considered the totality of Alessi's crime, including aspects of his activities covered by his 1972 conspiracy conviction.
Alessi then filed this petition for a writ of habeas corpus challenging the Commission's decision to deny him parole. Alessi attacked the decision on numerous grounds including a double jeopardy claim that the Commission was punishing him a second time for his 1972 conspiracy conviction, and a due process claim that the Commission had acted arbitrarily in setting a release date beyond its own guidelines. The District Court rejected most of Alessi's contentions, including his double jeopardy claim, but found his due process argument persuasive. In an opinion and order filed on July 6, 1982, the District Court held that the Commission had violated the Due Process Clause by using the same information--that Alessi had participated in a large-scale drug operation--first to classify his offense severity as "Greatest I" and again to set a release date beyond the pertinent guideline. Judge Sweet considered such "double counting" an abuse of discretion that amounted to a denial of due process. The District Judge then stated that he would grant Alessi's petition for release in twenty-one days unless the Commission corrected Alessi's presumptive parole release date.
On July 27, 1982, the Commission issued a second decision, adhering to its view that Alessi should be confined beyond his guideline range but setting a presumptive release date of December 5, 1982, after seventy-one months of confinement instead of the eighty-four months previously specified. The Commission gave the following explanation for its decision:
After review of all relevant factors and information presented, a decision above the guidelines appears warranted because your offense involved the following aggravating factors, over and above those facts supporting the Greatest I classification: You had a major role in an ongoing heroin distribution ring which was responsible for selling kilograms of heroin on a regular basis. This drug distribution ring utilized more than twelve co-conspirators and existed for a considerable length of time (January, 1968 to 1972).
Alessi then returned to the District Court claiming that the Commission had merely repeated its previous error by using the same factors to rate his offense severity and to confine him beyond the guidelines. Judge Sweet agreed, and on October 22, 1982, ordered Alessi released. Pursuant to this order, for which no stay was sought, Alessi was released on parole several weeks ahead of the December 3, 1982, presumptive release date set by the Commission.
The initial question raised by this appeal is whether the District Court was correct in concluding that the Commission engaged in impermissible double counting when it set Alessi's parole date beyond the guideline period. While the Commission has considerable latitude in setting parole dates, see Moore v. Nelson, 611 F.2d 434, 437 (2d Cir.1979); Baker v. McCall, 543 F.Supp. 498 (S.D.N.Y.1981), aff'd mem., 697 F.2d 287 (2d Cir.1982), decisions in the District Court for the District of Connecticut have concluded that it is irrational--and therefore a...
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