Briggs v. U.S. Parole Com'n, 83-1945

• Citation: 736 F.2d 446
• Decision Date: 29 May 1984
• Docket Number: No. 83-1945,83-1945
• Parties: Frank BRIGGS, Appellant, v. UNITED STATES PAROLE COMMISSION; Marion Lacy, Warden, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 446

736 F.2d 446

Frank BRIGGS, Appellant, v. UNITED STATES PAROLE COMMISSION; Marion Lacy, Warden, Appellees.

No. 83-1945.

United States Court of Appeals Eighth Circuit.

Submitted Feb. 15, 1984.

Decided May 29, 1984.

Susan E. Gaertner, Minneapolis, Minn., for appellant.

James M. Rosenbaum, U.S. Atty., Richard E. Vosepka, Jr., Asst. U.S. Atty., D. Minn., Minneapolis, Minn., Vickie R. Sheets, Legal Intern, for appellee.

Before LAY, Chief Judge, and HEANEY and BOWMAN, Circuit Judges.

HEANEY, Circuit Judge.

Frank Briggs appeals from the district court's order denying his petition for a writ of habeas corpus. Briggs argues that the United States Parole Commission unlawfully denied his request for parole, thereby requiring him to serve his sentence to expiration. We hold that the Parole Commission failed to provide Briggs with a statement of reasons for its departure from the parole guidelines as required by 18 U.S.C. Sec. 4206(c). We reverse and remand.

Briggs was convicted in July, 1981 on four counts of violating the Travel Act and conspiring to violate the Travel Act in relation to an arson scheme. The details of these convictions appear in the Seventh Circuit's opinion in Briggs' direct appeal, United States v. Briggs, 700 F.2d 408 (7th Cir.1983). The trial judge sentenced him to three consecutive terms of 18 months imprisonment (54 months) and a three year probation period to begin upon his release. The judge imposed this sentence pursuant to section 4205(b)(2), thus Briggs was eligible for parole at any time.

Briggs began serving his sentence in August, 1981, and a panel of the Parole Commission heard his request for parole on June 16, 1982. This hearing panel placed Briggs' offense severity at "Greatest II," the most severe category, and gave him a "salient factor score" of 10, the most favorable parole prognosis. With these ratings, Briggs could expect under the guidelines to serve "52 +" months before parole. 28 C.F.R. Sec. 2.20 (1982). ¹ The hearing panel denied Briggs' request for parole and ordered him to continue his 54 month term to expiration (less any statutory good time earned).

Briggs then appealed to the Regional Commissioner. The Regional Commissioner affirmed the hearing panel's decision. Briggs then appealed to the National Appeals Board of the commission (NAB). The NAB analyst recommended decreasing the severity rating to "Greatest I," which has a range of 40-52 months. He nonetheless recommended that Briggs be required to serve his 54 month sentence to expiration (again, with credit for statutory good time earned). The NAB adopted both recommendations.

Briggs filed this habeas corpus action seeking relief from the Parole Commission's decision. Upon the recommendation of a magistrate, the district court denied relief. Briggs then brought this appeal, raising essentially the same issues he raised below: 1) that the Parole Commission erred in finding his offense severity to be "Greatest I" rather than "High Severity," arguing that if it were so classified, he would be entitled to be released at the end of 20 months; and 2) that even if his conduct justifies a finding of "Greatest I," the Parole Commission deviated from its guidelines without stating its reasons for doing so as required by section 4206. In reviewing the Parole Commission's decision, we must affirm unless it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 5 U.S.C. Sec. 706(2)(A).

The Parole Commission rated Briggs' conduct at "Greatest I" severity based on his participation in a conspiracy to commit arson and the kidnapping of a security guard. The parole guidelines then applicable provided that either of the following acts constituted a "Greatest I" offense:

Arson or explosive detonation [involving potential risk of physical injury to person(s) (e.g., premises occupied or likely to be occupied)--no serious injury occurred] * * *

Kidnapping [other than listed in Greatest II; limited duration; and no harm to victim (e.g. kidnapping the driver of a truck during a highjacking, driving to a secluded location, and releasing victim unharmed) ].

28 C.F.R. Sec. 2.20 (1982).

Briggs contends that the arson scheme did not involve a potential risk of physical injury to anyone. He and his co-participants planned to burn the building at night; it was a business establishment, not a residence; and the only person on the premises was the security guard, and they removed him from the building.

While this action may have thereby removed the risk of physical injury, ² abducting the security guard at gunpoint and handcuffing him to a tree clearly meets the kidnapping description for purposes of the guidelines. Briggs complains that the Parole Commission should not have considered the guard's abduction because he was never charged with kidnapping or conspiracy to kidnap. The Parole Commission has broad discretion to consider the overall circumstances of the prisoner's offense behavior. Several courts have held that the Parole Commission may consider unadjudicated charges, charges in dismissed counts of an indictment, or even evidence of crimes of which the accused has been acquitted. See Billiteri v. United States Board of Parole, 541 F.2d 938, 944 (2d Cir.1976); United States v. Hendrix, 505 F.2d 1233, 1235 (2d Cir.1974); United States v. Needles, 472 F.2d 652, 655 (2d Cir.1973); United States v. Sweig, 454 F.2d 181, 183-184 (2d Cir.1972). Moreover, 18 U.S.C. Sec. 4207 explicitly provides that the Parole Commission may utilize information in presentence investigation reports. The narrative information in Briggs' report detailed his participation in planning the arson, and the abduction of the security guard at gunpoint was a part of this plan. It was thus a reasonable exercise of discretion for the Parole Commission to characterize Briggs' offense severity as "Greatest I" in light of this conduct.

Briggs' second argument--that even if an offense severity rating of "Greatest I" was not an abuse of discretion, the commission unlawfully exceeded the guidelines in requiring him to serve his 54 month sentence to expiration--has more merit. Section 4206(c) provides that:

The Commission may grant or deny release on parole notwithstanding the guidelines referred to in subsection (a) of this section if it determines there is good cause for so doing: Provided, That the prisoner is furnished written notice stating with particularity the reasons for its determination, including a summary of the information relied upon. [Emphasis in original.]

The NAB, in its Notice of Action to Briggs, stated:

Your offense behavior has been rated as Greatest I severity because it involved the kidnapping of a security guard and an attempted arson which was only prevented by intervention of police officials. Your salient factor score is 10. You have been in custody a total of 16 months. Guidelines established by the Commission for Adult cases which consider the above factors indicate a range of 40-52 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 outside the guidelines at this consideration is not found warranted.

The Parole Commission lowered the offense severity rating to "Greatest I," bringing Briggs within the 40-52 month...