Misasi v. U.S. Parole Com'n, 86-2729

• Decision Date: 21 December 1987
• Docket Number: No. 86-2729,86-2729
• Citation: 835 F.2d 754
• Parties: Sam S. MISASI, Petitioner-Appellant, v. UNITED STATES PAROLE COMMISSION, Respondent-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 754

835 F.2d 754

Sam S. MISASI, Petitioner-Appellant, v. UNITED STATES PAROLE COMMISSION, Respondent-Appellee.

No. 86-2729.

United States Court of Appeals, Tenth Circuit.

Dec. 21, 1987.

Bruce C. Houdek of James, Millert, Houdek, Tyrl & Sommers, Kansas City, Mo., for petitioner-appellant.

Connie R. DeArmound (Benjamin L. Burgess, Jr., U.S. Atty., and Alleen S. Castellani, Asst. U.S. Atty., with her, on brief), Topeka, Kan., for respondent-appellee.

Before MOORE, BALDOCK, and McWILLIAMS, Circuit Judges.

McWILLIAMS, Circuit Judge.

Sam S. Misasi, an inmate in the United States Penitentiary Camp, Leavenworth, Kansas, filed a petition for writ of habeas corpus in the United States District Court for the District of Kansas, naming the United States Parole Commission as the respondent ¹. In the petition, Misasi challenged the Parole Commission's fixing of his eligible-for-parole date. The district court ordered the Commission to show cause. The Commission thereafter filed an answer and return, to which Misasi filed a traverse. Based on the record, the district court denied the petition and dismissed the action. Misasi appeals.

From the record we learn that Misasi, a doctor of osteopathy, was charged in a six-count indictment in the United States District Court for the Western District of Missouri with dispensing a Schedule II narcotic controlled substance, such dispensing not being in the course of professional practice and not for a legitimate medical purpose, in violation of 21 U.S.C. Sec. 841(a)(1). The first five counts concerned the dispensing of Demerol containing pethidine, and the sixth count involved Dilaudid containing hydromorphone. Each count was based on a different transaction. Three of the unlawful prescriptions were issued to a confidential informant acting under cover, and the other three were issued to a state highway patrolman, also acting under cover. Misasi pled guilty to all six counts and a pre-sentence report was ordered.

Misasi was sentenced to fifteen years imprisonment on each of the six counts, said sentences to be served concurrently. ² Additionally, Misasi was fined $15,000 on each of the six counts, the fines totalling $90,000, and a special parole term of five years on each count was ordered. In imposing sentence, the district court acted in accord with 18 U.S.C. Sec. 4205(b)(2), which provides that a district court may fix only a maximum sentence, with no minimum sentence, in which event the district court may specify, as it did in the instant case, that the prisoner may be released on parole at such time as the Parole Commission may determine. ³

While confined in the United States Penitentiary Camp, Leavenworth, Kansas, Misasi initially appeared before the Parole Commission on October 29, 1985. Pursuant to the parole guidelines found at 28 C.F.R. Sec. 2.20, Misasi was given a Salient Factor Score of 10 and an Offense Severity Rating of 4, which, under the rules and regulations of the Parole Commission, meant that Misasi would be eligible for parole after 14 to 20 months in custody. ⁴ However, the examiners from the Parole Commission who conducted Misasi's parole hearing recommended that Misasi be incarcerated for 60 months and only then be eligible for "presumptive parole." The reasons given by the examiners for setting Misasi's presumptive parole date outside, and beyond, the guidelines were as follows:

It is substantiated by the U.S. Attorney's report that subject [Misasi] was the largest illegal distributor of controlled substances in the Western District of Missouri and additionally, subject [Misasi] accepted stolen goods in exchange for controlled substances.

On January 4, 1986, Misasi appealed the examiners' recommended decision to the National Appeals Board, which denied the appeal. On May 25, 1986, Misasi filed the present habeas corpus proceeding.

The district court in the instant case concluded that the record supported the action taken by the Parole Commission in setting Misasi's parole date at 60 months, instead of the 14 to 20 months arrived at under the guidelines. On appeal, Misasi contends that the record simply does not support the Commission's action, and that the district court erred in entering judgment upholding the Commission's decision.

18 U.S.C. Sec. 4206(c) authorizes the Commission to deny release on parole notwithstanding the guidelines if it determines that there is "good cause" ⁵ for so doing, provided that the prisoner is given written notice stating with particularity the Commission's reasons for going outside the guidelines, which notice includes a summary of the information the Commission relied upon in making its determination.

The Commission's Rules and Procedures Manual, Section 2.20-05, provides as follows:

Decisions Outside the Guidelines

A. In General

18 U.S.C. 4206 provides that the Commission may render a decision outside the guidelines for good cause provided the prisoner is furnished a specific explanation for such action. It is in the Commission's discretion to render a decision outside the guidelines (whether above or below) provided the circumstances warrant and such decision is adequately explained. The reasons given in the Notice of Action for a decision above or below the guidelines must explain what specific facts were relied upon to distinguish that case from the "typical" cases for which the guidelines are set. If a decision outside the guidelines follows the recommendation of the sentencing judge, the prosecutor or another interested party, it is not sufficient to cite that recommendation as the reason for departure from the guidelines. Instead, the Notice of Action must state the reasoning and factual basis for the recommendation which was found to justify a decision outside the guidelines (emphasis ours).

As indicated, the Parole Commission stated that in recommending a release date well beyond the release date suggested under the guidelines, its "rationale" was that Misasi's "offense behavior involved the following aggravating factors: It is substantiated by the U.S. attorney report that subject was the largest illegal distributor of controlled substances in the Western District of Missouri and additionally, subject accepted stolen goods in exchange for controlled substances." It is apparent, then, that although the Commission (its examiners to be more precise) had other written evidentiary matter before it, and had also conducted an evidentiary hearing wherein Misasi, with his attorney, appeared and offered testimony, the Commission's decision to go outside the guidelines was based solely on matter contained in a report of the United States Attorney. This report was prepared by the United States Attorney for use by the Commission at Misasi's hearing.

The report of the United States Attorney contains the following statements:

Dr. Sam S. Misasi, D.O., became one of the first targets for the Federal Drug Task Force in the Western District of Missouri. He was targeted by the Task Force because he had been described by both local and federal law enforcement agencies as the largest illegal distributor of controlled substances in this district, and possibly in the entire State of Missouri.

On six different occasions, Dr. Misasi sold completed prescriptions for controlled substances (demerol and dilaudid) to an informant and an undercover highway patrolman. He exchanged the scripts for what was purported to be "stolen property", including a log splitter, suits, a...