Maddox v. U.S. Parole Com'n, 87-1036

• Decision Date: 25 June 1987
• Docket Number: No. 87-1036,87-1036
• Citation: 821 F.2d 997
• Parties: Bill D. MADDOX, Petitioner-Appellant, v. UNITED STATES PAROLE COMMISSION, Respondent-Appellee. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 997

821 F.2d 997

Bill D. MADDOX, Petitioner-Appellant, v. UNITED STATES PAROLE COMMISSION, Respondent-Appellee.

No. 87-1036

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

June 25, 1987.

Bill D. Maddox, pro se.

Helen M. Eversberg, U.S. Atty., Mark M. Greenberg, Asst. U.S. Atty., El Paso, Tex., for respondent-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before RUBIN, RANDALL, and HIGGINBOTHAM, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

The issue is whether the Parole Commission's decision classifying a federal prisoner and fixing his parole date should be reversed. We decline the request to do so because the Parole Commission acted within the discretionary bounds granted it by Congress.

I.

Bill D. Maddox was convicted in the United States District Court for the Western District of Tennessee of conspiring to distribute marijuana, an offense involving about 11,000 pounds of marijuana, and aiding and abetting the possession of marijuana with intent to distribute. He was sentenced to two concurrent ten-year prison terms.

Thereafter Maddox was convicted in the Superior Court of Onslow County, North Carolina, of conspiring to traffic in marijuana, a separate offense, involving 85,000 pounds of marijuana. He was sentenced to a prison term of not less than twelve years or more than sixteen years to be served concurrently with his federal prison sentence.

After Maddox had commenced serving his federal prison sentence at the La Tuna Federal Correctional Institution near El Paso, Texas, his initial parole hearing was held. In a prehearing assessment report, Maddox was issued a category six offense-severity rating because the offense "involved a non-peripheral role in possession with intent to distribute in excess of 20,000 pounds of marijuana." The quantity of marijuana was calculated by combining the marijuana involved in both the federal and state convictions. The report gave Maddox a salient factor score of "10" ("very good" parole prognosis). The corresponding Parole Commission guidelines for that offense-severity rating and salient factor score indicated a recommended sentence of 40-52 months. The report also noted a comment by the sentencing judge in an AO-235 report which states:

"Substantial punishment indicated for this man's important role in a large marihuana conspiracy in Florida resulted in hundreds of thousands dollars worth of marihuana shipped to the Western District of Tennessee (and probably many other areas). Tapes indicated that this defendant assisted in "laundering" under a major criminal operator, Donald Raulerson, in the Fort Pierce area of Florida.

This man played a very substantial role in continuing drug operations. After he was indicated [sic] on the drug offenses pertaining to the Western District of Tennessee, he was observed on video tape continuing to discuss drug operations, disposal of large amounts of cash to foreign countries, and in assisting another in the "laundering" of large amounts of cash. There would be no reason to indicate that this defendant should have early parole: indeed, to the contrary."

The hearing panel recommended that Maddox be required to serve the maximum 52-month period established by the guidelines.

The Regional Parole Commission disagreed with the hearing panel and ordered that Maddox be required to serve four months more than the guideline range. The Commission found that a decision above the guidelines was warranted because:

After review of all relevant factors and information presented, a decision above the guidelines appears warranted because your offense behavior involved the following aggravating factors: The overall offense behavior involved the distribution of Marijuana in an amount approximately 4 1/2 times greater than that established by the base amount of the guidelines on addiction. You continued to engage in drug trafficing [sic] after being indicted on the Federal drug charges. (Emphasis added.)

The National Appeals Board affirmed the Regional Commission's decision.

Maddox contends that (1) the Parole Commission's decision was vague and uncertain; (2) his offense-severity rating should have been category five because he was convicted in federal court of an offense involving only 11,000 pounds of marijuana; and (3) the Parole Commission did not have good cause to go outside the guidelines because (a) he was not provided with a copy of the guidelines on addiction, (b) the guidelines on addiction were not in existence at the time of his conviction and thus application of these guidelines to him would violate the Constitution's ex post facto clause, and (c) the Parole Commission used the same information to establish his offense-severity rating and to support its decision above the guidelines. There are no "guidelines on addiction." This is a clerical error in the Regional Commission's decision. This obviously meant the guidelines for determining the offense-severity rating. In his later reply to the government's response, Maddox argued that the Parole Commission erroneously relied on the sentencing judge's comments in an AO-235 form to support its decision because the judge's comments are unsubstantiated hearsay.

II.

Congress has given the Parole Commission absolute discretion concerning matters of parole. ¹ Congress has dictated that the Parole Commission may use all relevant, available information in making parole determinations. ² The regulations provide, "The Commission may take into account any substantial information available to it in establishing the prisoner's offense severity rating, salient factor score, and any aggravating or mitigating circumstances, provided the prisoner is apprised of the information and afforded an opportunity to respond." ³

18 U.S.C. Sec. 4207 contains a nonexhaustive list of information that the Commission may consider in making parole determinations. As with sentencing courts, the only constraints on the information that may be considered by the Parole Commission are constitutional. Specifically, the Commission may consider dismissed counts of an indictment, ⁴ hearsay evidence, ⁵ and allegations of criminal activity for which the prisoner has not even been charged. ⁶ The regulations provide, "If the prisoner disputes the accuracy of the information presented, the Commission shall resolve such dispute by the preponderance of the evidence standard." ⁷ However, "it is not the function of the courts to review the discretion of the Board in the denial of application for parole or to review the credibility of reports and information received by the Board in making its determination." ⁸ Thus, as this court has observed,

[t]his Court cannot disturb a decision by the Commission setting the time for parole release absent a showing that the action is "flagrant, unwarranted, or unauthorized." Page v. United States Parole Commission, 651 F.2d 1083, 1085 (5th Cir.1981); United States v. Norton, 539 F.2d 1082, 1083 (5th Cir.1976), cert. denied, 429 U.S. 1103, 97 S.Ct. 1129, 51 L.Ed.2d 553 (1977). So long as due process requirements are observed and the Commission has acted within its statutory authority, we will not usurp the Commission's position as established in the statutory scheme enacted by Congress. ⁹

Although the Commission's decisions must have a factual basis, judicial review is limited to whether there is "some evidence" in the record to support the Commission's decision. ¹⁰

III.

Maddox contends that his category six offense-severity rating was unwarranted. A marijuana offense is properly characterized as category six if the prisoner had a nonperipheral role in an offense that involved 20,000 pounds or more of marijuana. If the offense involved less than 20,000 (but more than 2,000) pounds of marijuana or the prisoner had only a peripheral role, his offense behavior is properly rated as category five. ¹¹ Maddox contends that his offense-severity rating should have been category five because his federal conviction involved only 11,000 pounds of marijuana.

Maddox's offense behavior was rated as category six because the Parole Commission combined the 11,000 pounds of marijuana from the federal conviction with the 85,000 pounds of marijuana from the state conviction. A state offense may be used to establish a prisoner's offense-severity rating if the state offense is sufficiently related to the federal offense in time or nature. ¹² Maddox's federal offense involved conduct that took place between May 1, 1980, and February 2, 1981. The state offense took place on February 1, 1981. The two offenses were sufficiently related in time and nature. The Commission's decision therefore was based on appropriate information and was not "flagrant, unwarranted, or unauthorized." Accordingly, the Parole Commission's offense-severity rating for Maddox was not improper. ¹³

IV.

The Parole Commission for "good cause" may go outside its guidelines, provided that "the prisoner is furnished written notice stating with particularity the reasons for its determination, including a summary of the information relied upon." ¹⁴ " '[G]ood 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." ¹⁵ It includes 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." ¹⁶

The Parole Commission's decision fixing a period of confinement in excess of the time determined by the guidelines was based, in part, on its finding that Maddox "continued to engage in drug trafficing [sic] after being indicted on the Federal drug charges." This finding was based on the sentencing judge's statements contained in an AO-235 form. Maddox contends that this finding does...