Gometz v. U.S. Parole Com'n

• Decision Date: 27 June 2002
• Docket Number: No. 01-1135.,01-1135.
• Citation: 294 F.3d 1256
• Parties: Randy Karl GOMETZ, Petitioner-Appellant, v. UNITED STATES PAROLE COMMISSION, Respondent-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

294 F.3d 1256

Randy Karl GOMETZ, Petitioner-Appellant, v. UNITED STATES PAROLE COMMISSION, Respondent-Appellee.

No. 01-1135.

United States Court of Appeals, Tenth Circuit.

June 27, 2002.

COPYRIGHT MATERIAL OMITTED

Howard A. Pincus, Assistant Federal Public Defender (Michael G. Katz, Federal Public Defender, with him on the brief), Denver, Colorado, for Petitioner-Appellant.

James C. Murphy, Assistant United States Attorney (John W. Suthers, United States Attorney, with him on the brief), Denver, Colorado, for Respondent-Appellee.

Before MURPHY, McWILLIAMS, and HARTZ, Circuit Judges.

HARTZ, Circuit Judge.

Randy Gometz (Petitioner) has been in federal prison since receiving a 15-year sentence for bank robbery in 1975. While serving time he has been convicted of several additional crimes, each of which resulted in a sentence to be served consecutively to his other sentences. The offenses, together with the year and length of sentence are as follows: assaulting an inmate (1980, 1 year), assaulting a correctional officer (1981, 3 years), aiding and abetting the murder of a correctional officer (1983, life), assault with a dangerous weapon on a federal officer (1988, 10 years), and possession of contraband in prison (1988, 5 years). He has also been disciplined for well over 100 prison infractions.

In September 1995 Petitioner applied for parole with the United States Parole Commission. The Commission hearing examiner found that under Commission guidelines Petitioner should not be released until he had served a total of at least 430 months, that the release of Petitioner would pose an unwarranted risk to the community, and that his release date should be the subject of a reconsideration hearing in 15 years. The Commission adopted the hearing examiner's recommendation.

Petitioner sought review by the Commission's National Appeals Board, which affirmed the Commission decision. Petitioner then petitioned for a writ of habeas corpus under 28 U.S.C. § 2241. The district court denied the petition, and he appeals to this court, arguing that the Commission improperly applied the guidelines by (1) designating an assault on an inmate as an attempted murder, (2) designating an assault on a correctional officer as an ordinary assault, and (3) applying some guidelines retroactively. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

I. Background

Because Petitioner was originally sentenced in 1975, his period of incarceration is governed by the federal parole system that predated the Sentencing Guideline regime adopted by the Sentencing Reform Act of 1984. See 1 Neil P. Cohen, The Law of Probation and Parole § 5:2, at 5-2 (2d ed.1999). Under the parole system, Congress sets the maximum sentence, the judge imposes a sentence within the statutory range, and the Parole Commission determines the actual duration of imprisonment. See Mistretta v. United States, 488 U.S. 361, 365, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989).

After sentencing, a prisoner receives an initial parole hearing. 28 C.F.R. § 2.12. Following the hearing the Commission will either (1) set an effective date of parole; (2) set a "presumptive release date," which is contingent on favorable findings at subsequent hearings; or (3) postpone a decision on the prisoner's parole date until another hearing in 15 years (the "fifteen year reconsideration hearing"). 28 C.F.R. § 2.12(b). After the initial hearing the prisoner is entitled to periodic interim hearings. 28 C.F.R. § 2.14. Depending on the evidence presented at the interim hearing, the Commission may advance, delay, or even rescind a presumptive parole date, or, in special circumstances, it may advance the date of the 15-year reconsideration hearing. See 28 C.F.R. § 2.14(a)(2). When a prisoner who has already had an initial hearing receives another federal sentence, the Commission is to conduct a new initial hearing to "reevaluate the case." 28 C.F.R. § 2.28(c). A prisoner may appeal a decision to the National Appeals Board, 28 C.F.R. § 2.26, which is composed of three members of the Parole Commission, 28 C.F.R. § 2.1(c). The Board may affirm, reverse, or modify the decision, or order a new hearing. 28 C.F.R. § 2.26(b)(1).

To increase consistency in making parole decisions, the Commission has adopted guidelines that "indicate the customary range of time to be served before release for various combinations of offense (severity) and offender (parole prognosis) characteristics." 28 C.F.R. § 2.20(b). The guideline ranges "are established specifically for cases with good institutional adjustment and program progress." Id. They are not mandatory; decisions are allowed either above or below the guidelines when "the circumstances warrant." 28 C.F.R. § 2.20(c).

Parole prognosis is measured by a "salient factor score," see 28 C.F.R. § 2.20(e), which is based on the subject's prior convictions and commitments; the subject's age at the time of the current offense; the subject's recent commitment-free periods; and the subject's status as a prisoner, escapee, probationer, or parolee when the offense was committed. See 28 C.F.R. § 2.20, ch. 13, subch. B, Salient Factor Scoring Manual. The computation results in a score between 0 and 10, with 10 indicating the most favorable prognosis. See id. In special circumstances, however, a clinical evaluation of the prisoner may override the salient factor score. 28 C.F.R. § 2.20(e). The offense severity is calculated from the prisoner's actual activity rather than the technical offense for which the prisoner was convicted. See Lewis v. Beeler, 949 F.2d 325, 328, 330-31 (10th Cir.1991) (in setting offense severity level for prisoner convicted of extortion relating to Tylenol murders, Commission could determine that prisoner actually committed the murders). Offense severity is graded from Category 1 to 8, with 1 being the least severe. See 28 C.F.R. § 2.20, Guidelines for Decisionmaking.

A grid displays the guideline range for the total time to be served for each combination of salient factor score and offense severity category. For example, for a prisoner whose offense severity is Category 4 and whose salient factor score is 6, the guideline range is from a minimum of 20 months to a maximum of 26, which is represented in the grid as 20-26. For a prisoner whose offense severity is Category 8 and salient factor score is 3, the guideline range has a minimum of 180 months, with no maximum; this is represented in the grid as 180+.

The guideline range is increased for crimes and administrative infractions committed by the prisoner during confinement. See 28 C.F.R. § 2.36. Each such crime or infraction is placed in one of the eight offense severity categories. If the offense is in Category 5, the guideline range increases by 36-48 months; for a Category 8 offense, the guideline range increase is 120+ months.

At Petitioner's initial parole hearing on April 3, 1980, his guideline release date was calculated at 32-40 months, but the Commission determined that he should be confined until the expiration of his sentence because of "numerous incident reports." He received an interim hearing in 1982 but then waived all further hearings until he applied for parole in September 1995. Because of the additional sentences Petitioner had received after his interim hearing, he was entitled to a new initial hearing, which was conducted on April 2, 1996. The hearing examiner rated Petitioner's offense severity as Category 8 and calculated a guideline range of 430+ months; in other words, the time to be served would be at least 430 months, with no maximum. The examiner recommended that setting a release date be postponed until Petitioner's 15-year reconsideration hearing in April 2011, when Petitioner would have served 439 months. The examiner stated, "I would see that [Petitioner] from this point could expect to spend the rest of his life in custody."

Petitioner then appealed to the National Appeals Board. The Board noted 134 incident reports during his federal incarceration and said that the calculation of his guideline range had erroneously omitted six instances of institutional misconduct, which should have raised the aggregate guideline range to 498+ months. But recognizing its policy not to render a more adverse decision on appeal, the Board treated the guideline range as 430+ months. The Board also affirmed the 15-year reconsideration hearing. We now address Petitioner's three challenges to the Commission's decision.

II. Analysis

We will not disturb a decision by the Parole Commission "unless there is a clear showing of arbitrary and capricious action or an abuse of discretion." Sotelo v. Hadden, 721 F.2d 700, 702 (10th Cir.1983). "The inquiry 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." Misasi v. U.S. Parole Comm'n, 835 F.2d 754, 758 (10th Cir.1987) (quoting Solomon v. Elsea, 676 F.2d 282, 290 (7th Cir.1982)). We do not reweigh evidence, make credibility determinations, or substitute our judgment for the Commission's. Fiumara v. O'Brien, 889 F.2d 254, 257 (10th Cir. 1989).

A. Assault on an Inmate

Petitioner first argues that the Parole Commission abused its discretion by classifying a 1980 assault on an inmate as attempted murder. Attempted murder is a Category 8 offense, which results in a 120+ month increase in the guideline range. Petitioner points out that he was prosecuted for the offense and the conviction was for only assault with a deadly weapon with intent to inflict bodily harm. He also stresses that he was not even given the maximum sentence for his conviction. Yet the Parole Commission is not bound by the sentencing court. The Commission can make independent findings of criminal conduct and even consider unadjudicated offenses that are connected to...