Yamamoto v. U.S. Parole Com'n, 85-1289

• Decision Date: 27 June 1986
• Docket Number: No. 85-1289,85-1289
• Parties: Junji YAMAMOTO, Appellant, v. U.S. PAROLE COMMISSION, Appellee. Junji YAMAMOTO, Appellant, v. U.S. PAROLE COMMISSION; U.S. Attorney General and Joseph S. Petrovsky, Warden, U.S. Medical Center for Federal Prisoners, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1295

794 F.2d 1295

Junji YAMAMOTO, Appellant, v. U.S. PAROLE COMMISSION, Appellee.

Junji YAMAMOTO, Appellant, v. U.S. PAROLE COMMISSION; U.S. Attorney General and Joseph S.

Petrovsky, Warden, U.S. Medical Center for Federal

Prisoners, Appellees.

No. 85-1289.

United States Court of Appeals,

Eighth Circuit.

Submitted Nov. 15, 1985.

Decided June 27, 1986.

Donald E. Miller, Kansas City, Mo., for appellant.

David C. Jones, Asst. U.S. Atty., Springfield, Mo., for appellee.

Before LAY, Chief Judge, HENLEY, Senior Circuit Judge, and JOHN R. GIBSON, Circuit Judge.

PER CURIAM.

Junji Yamamoto, a federal prisoner, appeals the denial of his petition for a writ of habeas corpus, claiming that the United States Parole Commission's use of parole guidelines promulgated after the commission of his crime to determine his parole eligibility violates the constitutional prohibition against ex post facto laws. The district court ¹ held that the federal parole guidelines are not laws and that the ex post facto clause thus does not apply. As we are convinced the ex post facto clause is not applicable, we affirm.

Yamamoto was sentenced on July 16, 1982, to a seven-year term of imprisonment (eighty-four months) for conspiracy to import and distribute heroin from 1976 through 1979. Yamamoto had his initial parole hearing before a panel of United States Parole Commission hearing examiners on March 24, 1983. Applying the 1983 paroling policy guidelines set forth at 28 C.F.R. Sec. 2.20 (1983), the panel determined that Yamamoto was a very good parole risk and assigned him a salient factor score of ten out of ten. The panel rated Yamamoto's offense behavior as category eight severity because it involved a conspiracy to import and distribute more than three kilograms of heroin of one hundred percent purity in which Yamamoto had a managerial and proprietary interest. The 1983 parole guidelines provided that an offender with a salient factor score of ten and an offense severity rating of eight should be expected to serve one hundred or more months before release. After determining that a decision outside the guidelines was not warranted in this case, the panel informed Yamamoto that he would continue serving to the expiration of his eighty-four month sentence minus good-time reductions, resulting in a term of imprisonment of fifty-six months. ²

After exhausting his administrative appeals, Yamamoto filed a petition for writ of habeas corpus with the United States District Court, contending that the application of the 1983 parole guidelines to an offender convicted of a crime that occurred from 1976 through 1979 violated the ex post facto clause of the United States Constitution, U.S. Const. art. I, Sec. 9, cl. 3. A United States magistrate issued a report recommending dismissal of Yamamoto's petition on the grounds that the federal parole guidelines are not laws within the meaning of the ex post facto clause. The district court overruled Yamamoto's exceptions to the magistrate's report and, adopting its rationale, dismissed Yamamoto's petition. ³ This appeal followed.

The Constitution prohibits Congress from passing any law that "makes an action done before the passing of the law, and which was innocent when done, criminal; * * * [or] changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed." Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L.Ed. 648 (1798); see U.S. Const. art. I, Sec. 9, cl. 3. ⁴ The ex post facto clause serves both to curtail legislative abuses and to give fair warning of criminal laws and their punishments. Weaver v. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 964, 67 L.Ed.2d 17 (1981). A law violates the ex post facto clause if it applies retrospectively to events occurring before its enactment and if it is more onerous than the law in effect on the date of the offense. Id. at 30-31, 101 S.Ct. at 965-66.

While the 1983 guidelines are prospective in the sense that they relate to parole discretion to be exercised after their effective date, it is undisputed that application of the 1983 parole guidelines to determine Yamamoto's parole eligibility fulfills the retrospectivity requirement of Weaver v. Graham because the 1983 guidelines were not in effect in 1979, the last year of Yamamoto's conspiracy. ⁵ Yamamoto also argues that the 1983 guidelines are more onerous than the 1979 guidelines in effect when he committed his crime. For an offender with his salient factor score and offense severity rating, Yamamoto contends, the 1979 guidelines recommended a term of imprisonment of forty to fifty-two months before parole, whereas the 1983 guidelines recommend that such an offender serve one hundred or more months before release. Based on the 1983 guidelines, the parole panel determined that Yamamoto should serve his full eighty-four month sentence less good-time reductions, a total of fifty-six months. Thus, Yamamoto contends, the panel's use of the 1983 guidelines to make his parole determination violated the ex post facto clause because he received a more onerous punishment than he would have received under the guidelines in effect at the time of his crime.

We conclude that there is no ex post facto violation. Our holding that in the circumstances of this case retrospective application of the federal parole guidelines does not offend the ex post facto clause is supported by an impressive line of authority. Eight other circuits and one Supreme Court justice have reached a similar result, although they have not always agreed on the rationale. ⁶ The majority of these courts have held, as the district court did in this case, that the federal parole guidelines are not "laws" within the meaning of the ex post facto clause and that the ex post facto clause thus does not apply. ⁷ Other courts have found that the guidelines merely rationalize the exercise of statutory discretion and that retrospective application of the guidelines thus does not violate the ex post facto clause. ⁸ Some of these cases have held, in the alternative, that the retrospective application of the guidelines does not result in a more onerous punishment and thus does not violate the ex post facto clause. ⁹

Congress has for many years delegated the power to parole federal prisoners to the United States Parole Commission, known until 1976 as the United States Board of Parole. ¹⁰ The Board considered federal prisoner parole applications without reference to written guidelines until 1972. Then, in response to criticisms that parole decisions were eratic and inconsistent, the Board began to experiment with the use of written guidelines to structure its decision-making process. To accommodate these and other changes in the federal parole system, Congress enacted the Parole Commission and Reorganization Act in 1976, ch. 311, 90 Stat. 219 (codified as amended at 18 U.S.C.A. Secs. 4201-4218 (West 1985)). The Act replaced the Board with the Commission, clarified the structure of the parole process, and required the Commission to promulgate and use written guidelines in making parole decisions.

In Hayward v. United States Parole Commission, 659 F.2d 857 (8th Cir.1981), cert. denied, 456 U.S. 935, 102 S.Ct. 1991, 72 L.Ed.2d 454 (1982), we considered whether the use of the newly promulgated parole guidelines to determine the parole eligibility of an offender convicted of a crime that occurred prior to the adoption of the parole guidelines violated the ex post facto clause. Although we expressly declined to decide whether the federal parole guidelines are laws within the meaning of the ex post facto clause, we determined that the parole system in effect at the time the crime was committed (1970-1971) did not give the defendant any expectation of a particular parole system. Id. at 862. ¹¹ We therefore held that the retrospective application of the parole guidelines did not violate the ex post facto clause. Id. Implicit in this holding was a finding that, because an offender had no expectation, aside from the constraints imposed by the sentencing judge, as to the length of time he or she would serve before parole prior to the adoption of the written guidelines, the adoption of the written guidelines could not result in a more onerous punishment. While Hayward, supra, and Richardson v. United States Parole Commission, 729 F.2d 1154 (8th Cir.1984), expressly declined to decide whether the federal parole guidelines are laws within the meaning of the ex post facto clause and Rush v. Petrovsky, 756 F.2d 675 (8th Cir.1985), found it unnecessary to consider this issue, we are favorably impressed with the holdings of the several circuits that have so concluded. See supra n. 7. We are also persuaded, however, that it is unnecessary to reach this issue in this case as we are satisfied that Yamamoto had no expectation of a particular parole system at the time the crime was committed, Hayward, 659 F.2d at 862, and that the new guidelines were not more onerous than the old. Accordingly, once again we need not specifically address this issue.

Of importance here is the question whether Congress, in enacting the Parole Commission and Reorganization Act of 1976, so substantially reduced the Commission's discretion over parole decisions that a prisoner now has an expectation that in making parole decisions the Commission will adhere more firmly to the guidelines. Only then would an upward revision of the guidelines possibly result in a more onerous punishment. ¹²

Although the parole guidelines were intended to reduce the disparity of prison terms for like offenders and offenses, S.Rep. No. 369, 94th Cong., 2d Sess. 18, reprinted in 1976 U.S.Code. Cong. & Ad.News 335, 339-40, Congress clearly intended that parole eligibility determinations would remain a matter of discretion with the Parole Commission. For example, 18 U.S.C. 4206(c) provides that "[t]he Commission may grant or deny release on parole notwithstanding the guidelines...