Hatton v. Keohane, 82-5230

• Decision Date: 16 November 1982
• Docket Number: No. 82-5230,82-5230
• Parties: Lewis L. HATTON, Petitioner-Appellant, v. T.M. KEOHANE, Warden, F.C.I., Terminal Island, CA, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 88

693 F.2d 88

Lewis L. HATTON, Petitioner-Appellant, v. T.M. KEOHANE, Warden, F.C.I., Terminal Island, CA Respondent-Appellee.

No. 82-5230.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Sept. 9, 1982.

Decided Nov. 16, 1982.

Patrick Ryan, Los Angeles, Cal., argued, for petitioner-appellant; William J. Genego, Los Angeles, Cal., on brief.

John Spiegel, Asst. U.S. Atty., Los Angeles, Cal., for respondent-appellee.

Appeal from the United States District Court for the Central District of California.

Before ELY and CHOY, Circuit Judges, and CARROLL, ^* District Judge.

CHOY, Circuit Judge:

Lewis Hatton appeals from the denial of his petition for a writ of habeas corpus under 28 U.S.C. Sec. 2241. Hatton's principal argument is that the Regional Parole Commissioner exceeded his authority in changing the recommendation of the Hearing Examiner Panel and increasing Hatton's presumptive release date from 51 to 60 months. We affirm the denial of Hatton's petition.

To promote a consistent but fair exercise of discretion when determining parole, the United States Parole Commission has adopted advisory guideline ranges for determining parole release dates. See 28 C.F.R. Sec. 2.20(a) (1981). The guideline ranges vary according to the characteristics of the offense and the offender. Id. Sec. 2.20(b). A hearing examiner panel makes the initial recommendation concerning parole and may make a recommendation outside a guideline range when the circumstances warrant it. Id. Sec. 2.20(c). An administrative hearing examiner then reviews the panel's recommendation and makes his own parole recommendation to the Regional Commissioner who, in turn, sets the presumptive parole date. The Commissioner may modify any panel recommendation by up to six months. Id. Sec. 2.24(b)(2). Any panel recommendation outside the guideline range is also reviewable by the Commissioner to the extent that the recommendation is outside the range. Id. Sec. 2.24(b)(1).

A hearing examiner panel recommended that Hatton be given a presumptive parole at the minimum guideline level applicable to him (60 months). The panel then reduced the presumptive date by nine months because Hatton had demonstrated superior program achievement under 28 C.F.R. Sec. 2.60. The panel explicitly stated that its net recommendation of 51 months was below the applicable guideline range of 60 to 72 months because of Hatton's superior performance while in custody. The Administrative Hearing Examiner disagreed with the panel's recommendation and suggested a 60-month term to the Commissioner in part because of Hatton's criminal record and past drug addiction. Relying on his authority under Sec. 2.24(b)(1) to modify or reverse a panel recommendation outside the guideline range, the Commissioner modified Hatton's parole date to 60 months including a nine-month credit for program achievement.

Hatton argues that the Commissioner exceeded his authority by extending Hatton's presumptive release date. According to Hatton, the Commissioner should have focused on the panel's initial recommendation of 60 months and not the panel's net recommendation of 51 months, which took into account the program achievement, when determining whether the panel's recommendation fell outside the applicable parole guideline range for purposes of Sec. 2.24(b)(1). Hatton argues that to read the regulations the way that the Commissioner did would render meaningless the special-achievement provisions because the achievement advancement of inmates whose initial recommendations fall near the upper level of the guideline range would be...