Young v. U.S. Parole Com'n

• Decision Date: 09 August 1982
• Docket Number: No. 81-1214,81-1214
• Parties: John W. YOUNG, Petitioner-Appellant, v. UNITED STATES PAROLE COMMISSION, John W. Allman, Superintendent, Etc., Respondents-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1105

682 F.2d 1105

John W. YOUNG, Petitioner-Appellant, v. UNITED STATES PAROLE COMMISSION, John W. Allman, Superintendent, Etc., Respondents-Appellees.

No. 81-1214.

United States Court of Appeals, Fifth Circuit.

Aug. 9, 1982.

Richard M. Byrd, San Antonio, Tex. (Court-appointed), for petitioner-appellant.

Richard H. Stephens, Asst. U. S. Atty., Dallas, Tex., for respondents-appellees.

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

Before THORNBERRY, REAVLEY and RANDALL, Circuit Judges.

THORNBERRY, Circuit Judge:

John Wayne Young pleaded guilty to a two-count information charging him with bank extortion under 18 U.S.C. § 1952(a)(3). On November 22, 1978, he received two consecutive five-year sentences. Young raises no objection to his plea and sentencing. Rather, his petition for writ of habeas corpus under 28 U.S.C. § 2241 focuses on the actions of the Parole Commission subsequent to his incarceration. He contends that the Commission erroneously classified his offense behavior when it determined his offense severity rating. Having received a "Greatest II" classification, Young was ordered to continue in custody until the expiration of his sentence. He also claims that he was denied an interim parole hearing within the time required by 18 U.S.C. § 4208(h)(2), and that the Commission incorrectly aggregated his consecutive sentences for purposes of determining his parole status. Finally, Young argues that the Parole Commission violated his Fifth Amendment rights at his initial hearing by not giving him Miranda warnings. Finding no merit to any of Young's contentions, we affirm the district court's denial of the writ.

I. OFFENSE SEVERITY RATING

The Parole Commission and Reorganization Act (PCRA), 18 U.S.C. § 4201 et seq. provides that the Parole Commission must consider "the nature and circumstances of the offense and the history and characteristics of the prisoner" in deciding whether to release a prisoner on parole. Id. § 4206(a). Section 4203 gives the Commission the authority to promulgate regulations establishing guidelines for determining parole eligibility. 18 U.S.C. § 4203(a)(1). The guidelines for parole release consideration suggest the customary range of time to be served before release for various combinations of offense severity and offender characteristics. To assist the Commissioners, the guidelines also contain examples of offense behaviors for each severity level. Mitigating or aggravating circumstances in a particular case may justify a decision or a severity rating different from that listed. 20 C.F.R. § 2.20(b).

Petitioner objects to the Commission's characterization of the aggravating circumstances surrounding his offense. Responding to questions during his initial hearing in August 1979, petitioner admitted that in the process of committing bank extortion he transported persons in vehicles against their will through the use of firearms and physical force. Petitioner maintained before the Commission that his abduction of bank officials constituted illegal confinement rather than kidnapping. Nevertheless, the Commission ranked his offense behavior as "Greatest II severity because it involved the kidnapping of bank officials or their family members, physical force, threats of violence and use of firearms." Petitioner insists that the Commission cannot classify his offense behavior as "kidnapping" since he was never charged with kidnapping and since it was never established that his conduct would violate the elements of kidnapping as set out in 18 U.S.C. § 1201(a)(1). See also United States v. McBryar, 553 F.2d 433 (5th Cir.), cert. denied, 434 U.S. 862, 98 S.Ct. 191, 54 L.Ed.2d 136 (1977). ¹

This 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. Stroud, supra, 668 F.2d at 846. We believe that it was within the Parole Commission's discretion to place petitioner's offense behavior within the "Greatest II Kidnapping" category under 28 C.F.R. § 2.20. Kidnapping is "Greatest II" when it involves kidnapping "for ransom or terrorism; as hostage; or harm to victim." Kidnapping is "Greatest I" when it involves kidnapping "other than listed in Greatest II; limited duration; no harm to victim (e.g., kidnapping the driver of a truck during a hijacking, driving him to a secluded location, and releasing victim unharmed)." Id. Petitioner's conduct appears to belong in the "Greatest II" category for it involved forcible abduction and bank extortion, which is similar to kidnapping for ransom.

Moreover, contrary to petitioner's assertions, the Parole Commission need not limit its consideration of aggravating factors to the offense charged or to possible offenses that might have been charged given the facts available at the time of sentencing. This Court has affirmed repeatedly the right of the Commission to consider any evidence that existed at the time of sentencing that would constitute a mitigating or aggravating circumstance affecting the prisoner's offense rating. Page, supra, 651 F.2d at 1086; Jackson v. Reese, 608 F.2d 159, 160 (5th Cir. 1979); Payne v. United States, 539 F.2d 443, 444 (5th Cir. 1976), cert. denied, 429 U.S. 1103, 97 S.Ct. 1131, 51 L.Ed.2d 554 (1977); Bistram v. United States Parole Board, 535 F.2d 329, 330 (5th Cir. 1976); Brown v. Lundgren, 528 F.2d 1050, 1055 (5th Cir.), cert. denied, 429 U.S. 917, 97 S.Ct. 308, 50 L.Ed.2d 283 (1976). Under these circumstances, the Parole Commission's characterization of petitioner's offense behavior as "Greatest II Kidnapping" can hardly be viewed as "flagrant, unwarranted, or unauthorized" so as to require reversal in federal court. See Stroud, supra, 668 F.2d at 846; Page, supra, 651 F.2d at 1085.

We also reject petitioner's contention that the guidelines established in 28 C.F.R. § 2.20 violate the PCRA and the equal protection guarantee contained in the due process clause of the Fifth Amendment. Petitioner objects to the fact that he may serve a longer sentence than a person who commits an arguably graver offense. In upholding the guidelines against other constitutional challenges, this Court has held that the criteria and categories in 28 C.F.R. § 2.20 are within Congress' intent in vesting the Commission with the discretionary power to grant or deny parole. Stroud, supra, 668 F.2d at 847; Page, supra, 651 F.2d at 1085-86. See also, Garcia v. Neagle, 660 F.2d 983, 991 (4th Cir. 1981), cert. denied, --- U.S. ----, 102 S.Ct. 1023, 71 L.Ed.2d 309 (1982); Priore v. Nelson, 626 F.2d 211, 216-17 (2d Cir. 1980). We therefore, cannot say that the guidelines are inconsistent with the Commission's responsibilities under the PCRA.

Similarly, we must sustain the guidelines against petitioner's equal protection challenge. It is elementary to recognize that due process and equal protection do not forbid regulatory classifications. Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975); State of Florida v. Mathews, 526 F.2d 319, 324 (5th Cir. 1976). Since petitioner's claim does not involve a suspect classification or a fundamental right, see Greenholtz v. Inmates of the Nebraska Penal & Correctional Complex, 442 U.S. 1, 8-12, 99 S.Ct. 2100, 2104-05, 60 L.Ed.2d 668 (1979), it will be rejected unless the agency's action is patently arbitrary and bears no rational relationship to a legitimate governmental interest. Frontiero v. Richardson, 411 U.S. 677, 683, 93 S.Ct. 1764, 1768, 36 L.Ed.2d 583 (1973); Mathews, supra, 526 F.2d at 325.

The Parole release guidelines do not constitute a patently arbitrary exercise of the Commission's responsibility under the Act. Congress has given the Commission discretionary authority to grant or deny parole, 18 U.S.C. § 4203(b) (1), and as part of that grant of authority, Congress has instructed the Commission to promulgate guidelines. 18 U.S.C. § 4203(a)(1). Before releasing a prisoner on parole, the Commission must consider the seriousness of the offense, as indicated by the nature and circumstances surrounding the crime, and the history and characteristics of the prisoner. An examination of the offense severity guidelines in 28 C.F.R. § 2.20 reveals them to be in harmony with this statutory scheme. The guidelines do not create hard and fast boundaries between classes of offenses. Solomon, supra, 676 F.2d at 287. The Act specifically allows the Commission to go outside the guidelines for "good cause," 18 U.S.C. § 4206(c), and this Court has indicated that it must be flexible when circumstances so require. Stroud, supra, 668 F.2d at 847.

Furthermore, the classification system is not irrational as petitioner contends. For example, a "Low" severity ranking includes gambling and cigarette law violations. "Moderate" includes property offenses and some drug violations. "Very High" encompasses property offenses involving greater amounts of money and drug offenses involving more dangerous drugs in greater quantities. The "Greatest I" and "Greatest II" classifications are similar, except that the latter contemplates offenses which place innocent persons in an unreasonable risk of harm, such as murder, any aggravated felony, aircraft hijacking, espionage, and kidnapping for ransom or terrorism. These classifications, like substantive criminal law, reveal a regard for human safety and a belief that stealing larger amounts of property and dealing in greater amounts of drugs should be treated more severely. It is not for this Court to...