UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 96-60464
Summary Calendar
ELVIN BRAXTON TODD,
Petitioner,
VERSUS
UNITED STATES PAROLE COMMISSION,
Respondent.
Appeal from the United States District Court
For the Northern District of Texas
(18 USC 4106A)
January 13, 1997
Before JONES, DeMOSS, and PARKER, Circuit Judges.
PER CURIAM:*
In 1992, Elvin Braxton Todd (“Todd”), who was a 68-year-old
United States citizen living in Mexico, was charged and convicted
of (i) possession of a small amount of marijuana and (ii) raping
his estranged wife and two young children. He was sentenced to 16
years imprisonment on the rape charges and seven years imprisonment
*
Pursuant to Local Rule 47.5, the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in Local Rule 47.5.4.
and a fine on the marijuana charge. On appeal the charge regarding
his wife was dismissed but the other convictions and sentences were
affirmed by the Mexican appellate court. Todd elected to transfer
to the United States to serve his sentence pursuant to the Prisoner
Exchange Treaty between the United States and Mexico. Pursuant to
the treaty, the Parole Commission was required to determine his
release date. After a hearing at which Todd testified, a panel of
Parole Commission examiners recommended that Todd serve a 156-month
imprisonment term, followed by a 60-month supervised release term.
The term of imprisonment recommended was a downward departure of 12
months from the Guideline range of 168-210 months which the
examiners recommended because of the abuse and torture which Todd
suffered during his Mexican imprisonment. The Parole Commission
adopted the examiner’s recommendations. Todd timely appealed to
this Court and asserts that the Parole Commission erred in not
considering his factual innocence and lack of due process in the
Mexican courts as factors in fixing his release date.
We have carefully reviewed the briefs, the reply brief, the
record excerpts and relevant portions of the record itself. We
reviewed the Parole Commission’s determination de novo. Molano-
Garza v. United States Parole Commission, 965 F.2d 20, 23 (5th Cir.
1992). We will uphold the sentence unless it (1) was imposed in
violation of law; (2) was imposed as a result of an incorrect
application of the Sentencing Guidelines; (3) is outside the
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applicable Guideline range and is unreasonable or (4) was imposed
for an offense for which there is no applicable Sentencing
Guideline and is plainly unreasonable. 18 U.S.C. § 3742(e) and
(f). Because the Commission is only determining a release date and
not sentencing the offender, we are not persuaded by Todd’s
argument that the Commission should have considered evidence of his
innocence presented at his hearing. See Navarrete v. United States
Commission, 34 F.3d 316 (5th Cir. 1994).
Our review of this record satisfies us that there is no basis,
either in law or fact, for changing the determination of the Parole
Commission. Accordingly, this appeal is DISMISSED.
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