Roth v. U.S. Parole Com'n, 83-1989

• Citation: 724 F.2d 836
• Decision Date: 26 January 1984
• Docket Number: No. 83-1989,83-1989
• Parties: Thomas M. ROTH, Petitioner-Appellee, v. UNITED STATES PAROLE COMMISSION, Respondents-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 836

724 F.2d 836

Thomas M. ROTH, Petitioner-Appellee, v. UNITED STATES PAROLE COMMISSION, Respondents-Appellant.

No. 83-1989.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 13, 1983.

Decided Jan. 26, 1984.

Madeleine Caughey Austin, Denver, Colo., for petitioner-appellee.

John S. Leonardo, Asst. U.S. Atty., Phoenix, Ariz., for respondents-appellants.

On Appeal from the United States District Court for the District of Arizona.

Before HUG, PREGERSON and NORRIS, Circuit Judges.

PREGERSON, Circuit Judge:

The United States Parole Commission (Commission) appeals from a decision of the United States District Court for the District of Arizona granting Thomas M. Roth's petition for habeas corpus under 28 U.S.C. Sec. 2241 (1976). Pursuant to the district court's order, the warden of Safford Federal Prison in Arizona released Roth after he had served about 46 months of a combined 8-year sentence for committing two mail-fraud-related crimes. Roth remains free on parole pending the outcome of this appeal.

In ordering Roth's release, the district court adopted the magistrate's report and recommendation. The court found that the Commission had violated the Constitution's ex post facto clause. The court reasoned that the Commission, by applying its new guidelines for computing parole release dates, had improperly decided to make Roth serve more time in prison to earn parole than he would have served under the old guidelines.

Because Parole Commission guidelines are not "laws" within the meaning of the ex post facto clause, Rifai v. Parole Comm'n, 586 F.2d 695, 698 (9th Cir.1978), we reverse and vacate the writ. But because the district court's other reason for granting habeas--that the Commission abused its discretion--is unclear, we remand for reconsideration and clarification. In remanding, we ask the court to decide whether Roth's abuse of discretion argument is really a claim that the Government violated his right to due process. Our remand, however, does not preclude the district court from permitting the Commission to re-examine Roth's case to decide whether Roth, in light of the events that have transpired in the last 9 months, would make better progress toward rehabilitation by remaining on parole.

BACKGROUND

A. How the Parole Commission Operates

Congress has vested the United States Parole Commission with broad authority to establish guidelines governing the parole of For our purposes, ¹ the formula consists of two components: the "salient factor" score and the "offense severity" score.

federal prisoners. See 18 U.S.C. Sec. 4203 (1982). Relying on this mandate, the Commission has established a formula for determining when a prisoner may be released on parole.

The salient factor score focuses on the characteristics of the offender. It is a number indicating whether the prisoner is a good parole risk. The Commission commonly considers prior convictions in determining the salient factor score.

The offense severity score, on the other hand, focuses on the characteristics of the offense. It is a classification indicating how evil the crime is. Until recently, the Commission determined the offense severity score by considering only outstanding offenses. ² That is, the Commission did not calculate an offense severity score on the basis of crimes for which the prisoner had already served full sentence.

B. Roth's Crimes

In October 1979, Roth entered Safford Federal Prison to begin serving an 8-year prison term for committing two crimes: (1) violating his parole from a conviction for mail fraud in Chicago, ³ and (2) committing a second mail fraud offense in Denver. In 1975, he received a 3-year sentence for the Chicago crime, and in 1979, a 5-year sentence for the Denver crime.

The Commission held its first parole determination hearing in Roth's case on February 28, 1980. A panel of hearing examiners awarded Roth a salient factor score of 10 and an offense severity score of "greatest I severity." In applying the Commission's existing guidelines to calculate these scores, the panel found no reason to "go above" the guidelines to set a parole date later than the scores called for. ⁴ The panel recommended that Roth be paroled after serving 40 to 52 months.

But an administrative hearing examiner and the Regional Commissioner disagreed with the panel's recommendation and referred Roth's case to the National Commissioners under 28 C.F.R. Sec. 2.24(a) (1980). On May 12, 1980, the National Commissioners determined that Roth should serve 68 months. ⁵ To set the 68-month figure, the National Commissioners calculated a new salient factor score of 7, but arrived at the same offense severity score of greatest I severity. The National Commissioners computed a presumptive period of service of 52 to 64 months, and then exercised their statutory discretion to "go above" the parole guidelines.

Two years later, on February 9, 1982, the Commission held an interim hearing at Safford. A panel of examiners determined that the Commission should deduct 9 months from Roth's 68-month presumptive parole time because of his "superior achievement"--that is, good behavior--in prison.

According to Roth, an important event happened between his initial parole hearing on February 28, 1980, and his later hearing on February 9, 1982. On August 1, 1980, the Commission adopted new parole guidelines.

                These guidelines required the Commission, before calculating the presumptive date of release on parole, to aggregate all of a prisoner's sentences.  See 28 C.F.R. Sec. 2.20 General Note E (1983), originally published in 45 Fed.Reg. 44,925 (1980). 6   In Roth's case, this meant adding his 3-year Chicago sentence to his 5-year Denver sentence
                

Relying on the examiners' February 9, 1982 findings, and applying the new guidelines, ⁷ the National Commissioners on March 25, 1982 reduced Roth's presumptive service time to 59 months. But Roth wanted the 9 months deducted from the first examiner panel's determination that he should be released after serving 40 to 52 months. He unsuccessfully appealed the March 25 decision to various appellate levels in the Commission.

Finally, after serving nearly 36 months, ⁸ Roth petitioned on May 8, 1982 for a writ of habeas corpus. A magistrate considered the petition and filed a report recommending that Roth be paroled immediately. The district court adopted the report and ordered the Commission to reconsider Roth's application for early parole. Roth was released on April 7, 1983.

C. Gravamen of Roth's Complaint

Roth's attack on the Parole Commission is two-fold. First, he contends that the Commission violated the ex post facto clause by aggregating his two sentences. He claims that before August 1, 1980, the date the new guidelines were promulgated, the Commission would have paroled him in 40 to 52 months. Therefore, he believes he should not have to serve 68 months (minus 9 for superior achievement) before getting out.

Second, he argues that the Commission penalized him for the 1975 Chicago fraud conviction despite his having already paid his debt to society--that is, after he had served the entire 3-year sentence he received for violating his parole in the Chicago fraud case. Roth says that the Commission may not parole him from an expired sentence. He concedes that the Commission may--and it did--consider the Chicago offense to determine whether he was a good parole risk (his salient factor score), but insists that the Commission may not consider the Chicago offense to determine the opprobriousness of the harm he did in the Denver case, for which he is still paying his debt to society (the offense severity score). Roth submits that the Commission improperly penalized him twice for the Chicago offense when it calculated his presumptive date of release on parole.

STANDARD OF REVIEW

The district court granted Roth's petition for a writ of habeas corpus. We review that decision de novo. See United States v. Guido, 597 F.2d 194, 197-98 (9th Cir.1979) (per curiam).

The parole statute, 18 U.S.C. Sec. 4203 (1982), and the Administrative Procedure Act, 5 U.S.C. Sec. 706(2)(A) (1982), commit

                parole decisions to the sound discretion of the Commission.  Therefore, before upsetting the Commission's decision, the district court had to find that the Commission abused its discretion.   Reynolds v. McCall, 701 F.2d 810, 813 (9th Cir.1983) (citing Hatton v. Keohane, 693 F.2d 88, 90 (9th Cir.1982);  O'Brien v. Putnam, 591 F.2d 53, 55 (9th Cir.1979))
                

ANALYSIS

A. Ex Post Facto Argument

The ex post facto clause, U.S. Const. art. I, Sec. 9, cl. 3, forbids the Government from passing any law "which punishes as a crime an act previously committed which was innocent when done; or [which] imposes additional punishment to that then proscribed." Weaver v. Graham, 450 U.S. 24, 28, 101 S.Ct. 960, 963, 67 L.Ed.2d 17 (1981) (quoting Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 325-26, 18 L.Ed. 356 (1867)). The purposes of the clause are to provide fair warning about new punishments and to discourage arbitrary and oppressive legislation. Weaver, 450 U.S. at 28, 101 S.Ct. at 963; Dobbert v. Florida, 432 U.S. 282, 293, 97 S.Ct. 2290, 2298, 53 L.Ed.2d 344 (1977).

In Rifai v. Parole Comm'n, 586 F.2d 695 (9th Cir.1978), we rejected essentially the same argument that Roth now urges. ⁹ There the prisoner claimed that the Commission's 1973 changes in its guidelines, together with Congress's 1976 amendments to the statute, fixed his parole date later than it would have been under the guidelines in effect when he committed his crimes.

The court held that the Commission's guidelines were "merely procedural guideposts, without the characteristics of laws." Rifai, 586 F.2d at 698. Guidelines, reasoned the panel, cannot be considered "laws" even though the Commission applies them with regularity. If that were true, "any policy or practice followed with some frequency would constitute a 'law' from which an agency...