Timpani v. Sizer, 592
| Decision Date | 28 March 1984 |
| Docket Number | No. 592,D,592 |
| Citation | 732 F.2d 1043 |
| Parties | Joseph TIMPANI, Petitioner-Appellant, v. G.H. SIZER, as Warden of the Federal Correctional Facility, Danbury, CT and Benjamin F. Baer, as Chairman of the U.S. Parole Commission, Respondents-Appellees. ocket 83-2295. |
| Court | U.S. Court of Appeals — Second Circuit |
Lenihan & Castillo, Albany, N.Y. (Gaspar M. Castillo, Jr., Leonard W. Krouner, Albany, N.Y., on brief), for petitioner-appellant.
Alan H. Nevas, U.S. Atty., for the D. Conn., New Haven, Conn. (Kurt F. Zimmermann, Asst. U.S. Atty., New Haven, Conn., on brief), for respondents-appellees.
Before FEINBERG, Chief Judge, VAN GRAAFEILAND and KEARSE, Circuit Judges.
Petitioner Joseph Timpani, a federal prisoner, appeals from a judgment of the United States District Court for the District of Connecticut, Ellen Bree Burns, Judge, denying his petition for a writ of habeas corpus on the ground that he was entitled to be released from prison on May 10, 1983, in accordance with the revised guidelines of the United States Parole Commission ("Commission"). On appeal, Timpani contends principally that the Commission acted arbitrarily and capriciously in giving him a presumptive release date of October 10, 1984, and that as thus applied the Commission's revised guidelines violate the constitutional prohibition against ex post facto increases in punishment. Finding no merit in any of Timpani's contentions, we affirm the judgment of the district court. 1
In early 1981, Timpani was convicted on one count of knowingly possessing, as a convicted felon, a firearm that had traveled in interstate commerce, in violation of 18 U.S.C.App. Sec. 1202(a)(1) (1976), and one count of knowingly possessing an unregistered sawed-off shotgun, in violation of 26 U.S.C. Sec. 5861(d) (1976). He was sentenced in March 1981 to concurrent prison terms of eighteen months on the first count and five years on the second count. Later in 1981, while serving this sentence, Timpani pleaded guilty to two counts of income tax evasion, in violation of 26 U.S.C. Sec. 7201 (1976). On the first such count he was sentenced to one year's imprisonment, to be served consecutively to the sentence for his firearms offenses, and assessed a committed fine of $10,000; on the second count, he was placed on two years' probation and assessed a $10,000 fine.
In September 1981, pursuant to 28 C.F.R. Sec. 2.12 (1980), Timpani appeared before a hearing panel of the Commission for his initial parole hearing, the purpose of which was to establish his presumptive parole release date. In establishing this date, the panel relied on the Adult Guidelines for Parole Decisionmaking contained in 28 C.F.R. Sec. 2.20 (1980) ("Guidelines"), which set presumptive release dates on the basis of (1) the offender's risk of parole violation and (2) the severity of his "offense behavior." Id. Sec. 2.20(b). The risk of parole violation was to be assessed on the basis of a number of factors such as the prisoner's record of prior convictions, narcotics dependence, and recent education or employment history. Id. Sec. 2.20. These factors were translated into a number called a "salient factor score," which served as an indicator of the likelihood that a prisoner would abide by parole conditions. See id. Sec. 2.20(e). The assessment of the prisoner's "offense behavior" severity depended on two components: (a) the seriousness of any offense behavior by the prisoner, and (b) the number of offenses involved.
Timpani's "salient factor score," which is not at issue on this appeal, was 6, or "Good." With respect to his "offense behavior," although each of the two judgments against Timpani convicted him of two offenses, the Commission has treated Timpani's case as though it involved a single firearms conviction (for possession of an unregistered sawed-off shotgun) and a single tax evasion conviction. Under the Guidelines' seven-category rating system, both Timpani's firearms offense and his tax evasion offense were rated "High Severity" (the fourth category) offenses. Id. Sec. 2.20. Had Timpani's offense behavior involved only a single offense, the combination of that "High Severity" offense and his salient factor score of 6 would have made applicable a range of incarceration of 20 to 26 months. See id. The Guidelines provided, however, that "[i]f an offense behavior involved multiple separate offenses, the severity level may be increased." Id. Sec. 2.20, General Note D. Since Timpani's overall offense behavior involved two "High Severity" offenses, the hearing panel ranked his overall offense behavior severity "Very High" (the fifth category of offense), thereby making the applicable range of incarceration 36 to 48 months. Concluding that the circumstances warranted the maximum period of incarceration within the applicable range, 48 months, the panel gave Timpani a presumptive parole release date of March 9, 1985.
Timpani had his next interim hearing in February 1983. In the meantime, the Commission modified its Guidelines and procedures affecting presumptive release dates in two pertinent respects. In June 1982, the Commission announced that it would change the Guidelines' severity rating for, inter alia, the offense behavior applicable to Timpani's firearm offense from "High" (category 4) to "Very High" (category 5). See 47 Fed.Reg. 27,570 (1982). These changes became effective on January 31, 1983. See 47 Fed.Reg. 56,334 (1982). 2 In addition, in May 1982, the Commission amended its Guidelines Applications Manual ("Rules Manual") to provide guidance to hearing panels "in assessing whether the severity of multiple offenses is sufficient to raise the offense severity level." Rules Manual at R31. 3 The revised manual contained a new chart, in which numerical values were assigned to each offense behavior severity level, and the overall severity level could be determined by totaling the numerical values of all of the prisoner's offenses. 4 For all but the two most serious categories of offense, it required three offenses in one category to raise the overall offense severity automatically to the next higher level. 5
In connection with the revisions, the Commission announced that as to prisoners who had had their initial parole hearings before January 31, 1983, offense behavior severity ratings at all interim hearings held on or after January 31, 1983, would be calculated in accordance with the revised ratings, 47 Fed.Reg. 56,336 (1982), and that a Id.
At Timpani's February 1983 statutory interim hearing, the hearing panel calculated a revised severity rating for Timpani's overall offense behavior. Using the old Guideline classifications, the panel treated both Timpani's firearms offense and his tax evasion offense as "High Severity" (category 4) offenses; using the new multiple-separate-offense chart in the revised Rules Manual, the panel concluded that the combination of two such offenses would not increase Timpani's overall offense behavior severity rating. The panel thus lowered the overall severity rating for Timpani's offense behavior from "Very High" (the severity rating applied at Timpani's 1981 hearing) to "High," which made applicable a range of incarceration of 20 to 26 months. The hearing panel recommended a presumptive parole release date of August 17, 1983. 6
The Regional Commissioner rejected the recommendation of the hearing panel. He ruled that in determining whether the revised offense behavior severity ratings should be applied retroactively, it was necessary to refer to the revisions to assess both the individual offense severity rating and the multiple offense severity rating. If, taking into account the revised ratings for each component, the overall severity rating under the revisions was lower than the prisoner's overall rating under the old Guidelines, the revisions would be applied retroactively; if the overall rating under the revisions was higher or the same, the revisions would not be applied retroactively.
In Timpani's case, the Regional Commissioner determined that the overall offense behavior severity rating would remain the same under the revisions. Although Timpani's tax evasion offense remained within the "High Severity" category, the amended Guidelines placed Timpani's firearm offense in the "Very High Severity" category. Since the offense behavior severity rating for multiple offenses is at least as high as the highest severity rating assigned to any of a prisoner's separate offenses, Timpani's overall behavior offense severity rating was "Very High"--the same rating given at his initial hearing. Thus, the revisions were not applied to him, and the applicable range of his incarceration remained 36 to 48 months.
The Regional Commissioner found further that a decision outside the Guidelines, see note 6 supra, was not warranted. He awarded Timpani five months' credit for "superior program achievement," and arrived at a new presumptive parole release date of October 10, 1984. Timpani appealed, and on August 9, 1983, the Commission's National Appeals Board affirmed the decision of the Regional Commissioner for the reasons given by the Regional Commissioner.
In the meantime, in June 1983, Timpani filed a petition for a writ of habeas corpus in the district court, claiming that the Regional Commissioner had acted arbitrarily and capriciously in calculating his October 10, 1984 release...
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