Gambino v. Morris, 96-5299

Citation134 F.3d 156
Decision Date15 January 1998
Docket NumberNo. 96-5299,96-5299
PartiesErasmo GAMBINO, Appellant, v. E.W. MORRIS (Warden-FCI Fairton); United States Parole Commissioner.
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Alan D. Bowman (argued), Newark, NJ, for Appellant.

Neil R. Gallagher (argued), Office of United States Attorney, Newark, NJ, for Appellees.

Before: ROTH, LEWIS and McKEE, Circuit Judges.

OPINION OF THE COURT

LEWIS, Circuit Judge.

Erasmo Gambino, a federal prisoner, alleges that the United States Parole Commission improperly denied him parole. In particular, he claims that the Commission's conclusion that he was affiliated with an organized crime family was not supported by any evidence, and that an organized crime affiliation is not enough, in itself, to deny parole. Gambino filed a writ of habeas corpus, which the district court denied. Because we find that the United States Parole Commission abused its discretion, we will reverse the judgment and remand for further proceedings.

I.

Erasmo Gambino is currently incarcerated at the Federal Correctional Institution at Fairton, New Jersey. In 1984, he was convicted of conspiracy to distribute heroin; two counts of possession of heroin with intent to distribute; and two counts of distribution of heroin, all in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1). Gambino was also convicted of use of a telephone in a conspiracy to distribute and possess heroin, a felony under 21 U.S.C. § 846, in violation of 21 U.S.C. §§ 843(b) and (c). On December 6, 1984, he was sentenced to a 34-year term of imprisonment and a $95,000 fine.

Prior to the verdict, Gambino was cited for attempted escape from the Metropolitan Correctional Center in New York City. He was later found guilty and given a 30-day disciplinary segregation as punishment.

All of these offenses occurred between December 1983 and March 1984, before the enactment of the Sentencing Reform Act of 1984 ("SRA"), Pub.L. No. 98-473, Title II, Oct. 12, 1984, 98 Stat. 1987. The SRA abolished parole, see SRA § 218(a)(5), 98 Stat. 2027, 2031, but only for offenses committed after November 1, 1987. See Sentencing Reform Amendment Act of 1985, Pub.L. No. 99-217, § 4, Dec. 26, 1985, 99 Stat. 1728. 1 Thus, Gambino was entitled to a parole hearing.

On April 20, 1994, the United States Parole Commission conducted a parole hearing and Gambino was denied release. 2 The Hearing Panel assigned Gambino a Category Six Offense Severity Rating because he had been convicted of conspiracy to distribute more than 50 but less than 999 grams of pure heroin. See U.S. Parole Commission Offense Behavior Severity Index, Chapter Nine, Subchapter A, p 901(d), 28 C.F.R. § 2.20 (1995). 3 The Panel assessed his salient factor score as 10 out of 10, with 10 representing the lowest risk of parole violation. See id. (Salient Factor Scoring Manual). The parole guidelines for a prisoner with a salient score of 10 and a Category Six offense severity rating indicate a term of incarceration of 40 to 52 months. See 28 C.F.R. § 2.20(b). The Panel assessed an additional 8 to 16 months for Gambino's attempted escape from secure custody. 4 The resulting aggregate guideline range was 48 to 68 months. 5 However, 18 U.S.C. § 4205(a) (1997) requires that Gambino remain incarcerated for at least 10 years prior to being eligible for parole. 6 At the time of the April 20, 1994 hearing, Gambino had served approximately 119 months. Nevertheless, the Panel recommended that he remain incarcerated until the expiration of his sentence, solely because Gambino has been identified as a member of an organized crime family.

The Panel also recommended that the case be referred for "original jurisdiction." 7 Government's Supplemental Appendix ("S.A.") at 16. On June 27, 1994, the Commission rendered an "original jurisdiction" decision by Notice of Action, determining that Gambino would serve until the expiration of his sentence. Id. at 18. The Commission informed Gambino that a decision to go outside the guidelines was warranted because Gambino was

a more serious risk than indicated by [his] salient factor score in that [he has] been identified by the government as a member of an organized crime family as evidenced by the body of an execution murder victim found in the trunk of [his] automobile on November 15, 1982.

Id. The Notice of Action concluded that "[a] decision above the guidelines is mandated in that [Gambino has] a minimum sentence which exceeds the guideline range." Id. The body referred to in the Notice of Action was that of Pietro Inzerillo. Inzerillo was Gambino's cousin, and the two men jointly owned a pizzeria. Gambino claims, and the government does not dispute, that he was never a suspect in this slaying.

Gambino appealed to the Commission's National Appeals Board, which affirmed the Commission's decision on December 7, 1994, by Notice of Action. Id. at 19. The Appeals Board stated that [i]n response to [Gambino's] claim that the reasons provided to exceed the guidelines are not a part of the offense of conviction and therefore should not be relied upon is without merit. The Commission may consider available information to determine an appropriate sanction for the total offense behavior. [His] claim that the information used is flawed does not persuade the Commission to change the decision.

Id.

In summary, the parole guidelines indicated that Gambino should serve a term of 48 to 68 months. However, Gambino was not eligible for parole until he served a minimum sentence of 120 months. He had a parole hearing after serving approximately 120 months and was denied parole. The Commission requires that he serve until the expiration of his 34-year sentence.

If Gambino remains a model prisoner, he will be released after completing two-thirds of his sentence, a period of approximately 272 months. 18 U.S.C. § 4206(d) (1997). 8 However, if he seriously or frequently violates prison rules, he will serve out his full term of 408 months. See id. These calculations exclude any possible reduction for good time, pursuant to 18 U.S.C. § 4161 et seq. (1997) (repealed by Pub.L. 98-473, Title II, § 218(a), Oct. 12, 1984, 98 Stat. 2027) (repeal effective Nov. 1, 1987, and applicable only to offenses committed after it took effect).

Gambino petitioned the district court for a writ of habeas corpus, pursuant to 28 U.S.C. § 2241. The district court denied the writ.

The district court had jurisdiction pursuant to 28 U.S.C. § 1331. We have jurisdiction pursuant to 28 U.S.C. § 1291.

II.

Our role in reviewing decisions by the Parole Commission on application for a writ of habeas corpus is limited. The appropriate standard of review of the Commission's findings of fact "is not whether the [Commission's decision] is supported by the preponderance of the evidence, or even by substantial evidence; the inquiry is only whether there is a rational basis in the record for the [Commission's] conclusions embodied in its statement of reasons." Zannino v. Arnold, 531 F.2d 687, 691 (3d Cir.1976). See also 28 C.F.R. § 2.18 ("The granting of parole to an eligible prisoner rests in the discretion of the United States Parole Commission."). Moreover, we must ensure that the Commission "has followed criteria appropriate, rational and consistent" with its enabling statutes and that its "decision is not arbitrary and capricious, nor based on impermissible considerations." Id. at 690.

Although the Commission must, in the first instance, use the parole guidelines in determining the release of a prisoner, 18 U.S.C. § 4206(a) (1997), it is not limited by those regulations. 18 U.S.C. § 4206(c)(1997). 9 The Commission is authorized to "deny release on parole notwithstanding the guidelines ... if it determines there is good cause for so doing...." Id. The legislative history of that statute indicates the definition of good cause cannot be precise " 'because [good cause] must be broad enough to cover many circumstances.' " Iuteri v. Nardoza, 732 F.2d 32, 36-37 (2d Cir.1984) (quoting H.R.Rep. No. 838, 94th Cong., 2d Sess. 27, reprinted in 1976 U.S.Code Cong. & Admin. News 335, 351, 359). Nonetheless, it is not so broad as to evade any definition. "Good cause" may include consideration of such factors as whether " 'the prisoner was involved in an offense with an unusual degree of sophistication or planning or has a lengthy prior record, or was part of a large scale conspiracy or continuing criminal enterprise.' " Romano v. Baer, 805 F.2d 268, 270 (7th Cir.1986) (quoting H.R. Conf. Rep. No. 94-838, 94th Cong., 2d Sess. 27, reprinted in 1976 U.S.Code Cong. & Admin. News 335, 351, 359). Moreover, "good cause" means "substantial reason and includes only those grounds put forward by the Commission in good faith and which are not arbitrary, irrational, unreasonable, irrelevant or capricious." Harris v. Martin, 792 F.2d 52, 55 (3d Cir.1986) (citing H.R. Conf. Rep. No. 94-838, 94th Cong., 2d Sess. 27, reprinted in 1976 U.S.Code Cong. & Admin. News 335, 351, 359).

In reaching its decision to grant or deny parole, the Commission may consider a broad range of sources, including presentence investigation reports and "such additional relevant information concerning the prisoner ... as may be reasonably available." 18 U.S.C. § 4207 (1997). The Commission must resolve disputes with respect to information presented by "a preponderance of the evidence standard." 28 C.F.R. § 2.19(c).

On appeal, Gambino argues that: (1) none of the information relied upon by the Commission is rationally connected to the Commission's finding that he was a member of an organized crime family; and (2) there was not "good cause" to place his sentence outside the sentencing guidelines. 10

A.

Gambino contends that the Commission had no evidence before it which rationally connects him to the Gambino family of La Cosa Nostra. We may inquire as to "whether there is a rational basis in the record for the Board's...

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