Bender v. U.S. Parole Comm'n

• Citation: 802 F.3d 690
• Decision Date: 18 September 2015
• Docket Number: No. 14–60656.,14–60656.
• Parties: Anthony BENDER, Petitioner v. UNITED STATES PAROLE COMMISSION, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

802 F.3d 690

Anthony BENDER, Petitioner

v.UNITED STATES PAROLE COMMISSION, Respondent.

No. 14–60656.

United States Court of Appeals, Fifth Circuit.

Sept. 18, 2015.

H. Michael Sokolow, Assistant Federal Public Defender (argued), Marjorie A. Meyers, Federal Public Defender, Federal Public Defender's Office, Houston, TX, for Petitioner.

Paula Kei Biderman (argued), Helen H. Krapels, U.S. Parole Commission, Washington, DC, for Respondent.

Appeal from the Determination of the United States Parole Commission.

Before REAVLEY, PRADO, and COSTA, Circuit Judges.

Opinion

EDWARD C. PRADO, Circuit Judge:

Anthony Bender, a U.S. citizen, was convicted in a Costa Rican tribunal of three counts of rape and sentenced to thirty years in prison. Pursuant to a treaty, Bender was transferred to serve his time in an American federal prison. Bender appeals the United States Parole Commission's release-date determination. He argues his sentence is unlawful because it is in excess of the statutory maximum, impermissibly indeterminate, and procedurally and substantively unreasonable. We affirm.

I. BACKGROUND

In 2006, Bender was convicted of three counts of rape and sentenced to thirty years in prison by a Costa Rican tribunal. The tribunal set February 19, 2035, as Bender's preliminary release date, taking into account time served. In 2012, Bender applied for transfer to a United States prison to serve the remainder of his sentence, pursuant to the Council of Europe Convention on the Transfer of Sentenced Persons (“Treaty” or “Transfer Treaty”). Bender was referred to the U.S. Parole Commission to set a date for release from custody.

The probation office prepared a Post–Sentence Investigation Report (PSR). The PSR described the relevant facts of the offense, as reported by the Costa Rican court. The specific details of the offense factored heavily in the release-date determination: On July 25, 2005, Bender invited M.J., the victim, to ride with him toward the downtown area of Puerto Jimenez, Costa Rica. M.J. boarded Bender's vehicle, and Bender sped toward his house. When they arrived, Bender grabbed M.J. and forced her to enter his house. He removed all her clothing and raped her, orally and vaginally, three times. Bender used physical force, causing injury to M.J.'s face, neck, chest, limbs, and genitals. M.J. provided additional details to the Probation Officer: She reported forcible anal penetration and choking, and she stated that Bender threatened to bring his friends to rape her, to show her child pornography, and to videotape their sexual acts. M.J. escaped and hid in a swamp until a guard found her.

The PSR calculated a base offense level of 30 and added 10 points based on 3 multiple-count adjustments and on the specific offense characteristics, yielding an adjusted offense level of 43. It assessed one criminal-history point based in part on Bender's 2000 Missouri conviction for first-degree sexual misconduct, yielding a criminal history category of I. Although the PSR listed three other convictions and eight other arrests, it did not factor them into the offense-level calculation. The PSR also noted Bender's history of substance abuse, which began at age 12 and included alcohol, marijuana, and cocaine use.

The Transfer Treaty documents, the PSR, and Bender's objections to the PSR provide details of Bender's “horrible” conditions of confinement in Costa Rica. Bender reports that the prison was overcrowded, lacked air conditioning, heating, and windows, and was infested with vermin; the drinking water and food that prisoners received were contaminated with feces; drugs, alcohol, and tobacco were prevalent inside the prison; and the penitentiary was essentially run by gangs. Bender's preexisting spinal cord injury worsened in prison: he developed several herniated discs in his neck and lower back, which caused loss of motor function and of bowel and bladder control. Bender sought medical care, but the care was inadequate.

The PSR calculated a Guidelines range of life imprisonment but noted that the Costa Rican sentence was 360 months. Bender objected to the PSR, requesting a two-level reduction for acceptance of responsibility pursuant to United States Sentencing Guidelines Manual (U.S.S.G.) § 3E1.1(a) and a downward departure based on the severe abuse he experienced while imprisoned in Costa Rica.

A Hearing Examiner from the Parole Commission held a hearing to determine Bender's release date. The Examiner summarized Bender's offense, heard testimony from the victim, and listened to Bender's description of his conditions of confinement, his medical status, his criminal record, and his history of substance abuse. Although the Examiner noted that Bender might be eligible for a downward departure based on the severe abuse he suffered in prison, she declined to depart because of the aggravating factors in his case: a “horrible” crime lasting four hours, a history of alcohol and drug abuse, and prior contact with the criminal-justice system involving sexual misconduct.

Finding that the proposed release date met the goals of § 3553(a), the Examiner recommended 360 months in prison minus good time credits and supervised release for five years or until the expiration of Bender's Costa Rican sentence, whichever happens first. The Parole Commission accepted the Examiner's recommendation and set September 13, 2031, as Bender's release date. Bender timely appealed.

II. DISCUSSION

The United States Parole Commission had jurisdiction to set Bender's release date pursuant to 18 U.S.C. § 4106A(b)(1)(A). Because Bender is incarcerated in Texas, this Court has jurisdiction to “decide and dispose of the appeal in accordance with [18 U.S.C. § 3742 ] as though the determination appealed had been a sentence imposed by a United States district court.” Id. § 4106A(b)(2)(B).

Bender raises two challenges to his sentence. First, he claims the sentence is illegal because it exceeds the statutory maximum, devalues his good time credits, and is impermissibly indeterminate. Second, he contends the sentence is procedurally and substantively unreasonable.

A. Illegality

This Court exercises review over a Transfer Treaty prisoner's sentence as it would over that of an ordinary federal prisoner sentenced in district court. Id. § 4106A(b)(2)(A) ; Molano–Garza v. U.S. Parole Comm'n, 965 F.2d 20, 23 (5th Cir.1992). The Parole Commission's construction of statutory law and the Sentencing Guidelines is reviewed de novo and its factual findings are reviewed for clear error. Molano–Garza, 965 F.2d at 23.

Bender advances two arguments why his sentence is illegal. First, he contends that the Parole Commission imposed a sentence (360 months and 5 years of supervised release) that on its face exceeds his foreign sentence, in violation of federal statute. Second, he argues that his sentence is indeterminate and devalues his good time credits. Both are questions of first impression in this Court, though the Seventh and Ninth Circuits have addressed similar claims. See United States v. Tsui, 531 F.3d 977 (9th Cir.2008) ; Cafi v. U.S. Parole Comm'n, 268 F.3d 467 (7th Cir.2001).

1. Statutory and Regulatory Framework

Domestic statutory law sets the parameters for incarceration of prisoners transferred from foreign countries under the Transfer Treaty.

[A]n offender serving a sentence of imprisonment in a foreign country transferred to the custody of the Attorney General shall remain in the custody of the Attorney General under the same conditions and for the same period of time as an offender who had been committed to the custody of the Attorney General by a court of the United States for the period of time imposed by the sentencing court.

18 U.S.C. § 4105(a) (emphasis added).

The Parole Commission is authorized to set release dates for prisoners transferred from foreign countries under the Transfer Treaty. Because the prisoner is sentenced under the authority of the foreign sovereign, the Commission's action formally is a release-date determination and not a sentence. See Thorpe v. U.S. Parole Comm'n, 902 F.2d 291, 292 (5th Cir.1990) (per curiam); 28 C.F.R. § 2.68(a)(5).

The Commission is instructed to impose both a term of imprisonment and a period of supervised release: “The United States Parole Commission shall, without unnecessary delay, determine a release date and a period and conditions of supervised release for an offender transferred to the United States to serve a sentence of imprisonment, as though the offender were convicted in a United States district court of a similar offense.” 18 U.S.C. § 4106A(b)(1)(A) (emphasis added). However, Congress has imposed a temporal limitation on the Parole Commission's discretion: “The combined periods of imprisonment and supervised release that result from such determination shall not exceed the term of imprisonment imposed by the foreign court on that offender.” Id. § 4106A(b)(1)(C) (emphasis added).

Finally, Congress has legislated to ensure that transferred prisoners receive good time credits earned both abroad and in the U.S.: “The transferred offender shall be given credit toward service of the sentence for any days, prior to the date of commencement of the sentence, spent in custody in connection with the offense or acts for which the sentence was imposed.” 18 U.S.C. § 4105(b) (emphasis added). Once the prisoner is transferred to Bureau of Prisons custody, the Bureau evaluates the course of the prisoner's service and awards good time credits pursuant to 18 U.S.C. § 4105(c)(1) and 18 U.S.C. § 3624(a). Courts have instructed the Commission to consider a transferee's foreign good time credits in calculating his release date: the statutory-maximum release date that the Commission may impose is the prisoner's foreign sentence minus his good time credits. Thorpe, 902 F.2d at 292.

2. Sentence in Excess of Statutory Maximum

Against this legal backdrop, Bender argues that the Commission erred by imposing a sentence above the statutory maximum. Although both parti...