[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-11396 ELEVENTH CIRCUIT
Non-Argument Calendar FEBRUARY 1, 2011
________________________ JOHN LEY
CLERK
Agency No. 05010-707
RENE MARCEL STUCKI,
lllllllllllllllllllll Petitioner,
versus
U.S. PAROLE COMMISSION,
lllllllllllllllllllllRespondent.
________________________
Petition for Review of a Decision of the
Department of Justice
________________________
(February 1, 2011)
Before EDMONDSON, MARCUS and PRYOR, Circuit Judges.
PER CURIAM:
Rene Stucki seeks review of the U.S. Parole Commission’s release date
determination pursuant to 18 U.S.C. § 4106A. Stucki was convicted in Panama for
international drug trafficking, sentenced to 72 months in prison, and served
approximately 21 months of his sentence in Panama. Pursuant to the transfer of
offenders under the treaty agreement with foreign countries and 18 U.S.C. §§ 4105
and 4106(a), Stucki was transferred to the United States for service of his sentence.
The U.S. Parole Commission ordered that Stucki’s imprisonment continue to the
expiration of his sentence after service of 72 months. On appeal, Stucki argues that
the Parole Commission erred in focusing on the guidelines range to the exclusion of
other evidence, such as the harsh prison conditions in Panama and Stucki’s good
behavior in prison. After careful review, we affirm.
We decide an appeal of a transfer treaty determination “as though the
determination appealed had been a sentence imposed by a United States district
court.” 18 U.S.C. § 4106A(b)(2)(B). We therefore evaluate the release date imposed
below for reasonableness, with an eye towards assessing whether it achieves the
sentencing objectives set forth in 18 U.S.C. § 3553(a).1 Odili v. United States Parole
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The sentencing factors under 18 U.S.C. § 3553(a) include: (1) the need to reflect the
seriousness of the offense, promote respect for the law, provide just punishment for the offense,
deter criminal conduct, protect the public from the defendant’s future criminal conduct, and
provide the defendant with needed educational or vocational training or medical care; (2) the
nature and circumstances of the offense, and the history and characteristics of the defendant; (3)
the kinds of sentences available; (4) the applicable guideline range; (5) the pertinent policy
statements of the Sentencing Commission; (6) the need to avoid unwarranted sentencing
disparities; and (7) the need to provide restitution to victims. 18 U.S.C. § 3553(a)(1)-(7).
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Comm’n, 474 F.3d 1255, 1265 (11th Cir. 2007).
When an offender incarcerated in another country is transferred to the United
States to serve a sentence of imprisonment, the foreign sentence is translated into one
comparable to that for a domestic offender convicted of a similar offense. Bishop v.
Reno, 210 F.3d 1295, 1302 n.11 (11th Cir. 2000). The U.S. Parole Commission
“determine[s] a release date and a period and conditions of supervised release …, as
though the offender were convicted in a United States district court of a similar
offense.” 18 U.S.C. § 4106A(b)(1)(A). The Parole Commission does not re-sentence
the transferee, it simply converts the foreign sentence into a determination of release
date and a period and conditions of supervised release. Odili, 474 F.3d at 1259.
For purposes of setting the transferee’s release date under § 4106A, the Parole
Commission is obliged to afford the guidelines only advisory weight. Odili, 474 F.3d
at 1263-1264. “[B]ecause § 4106A directs the Parole Commission to effect transfer
treaty determinations as though the offender were convicted in a United States district
court of a similar offense, and because the § 4106A procedure is akin to a sentencing
proceeding, the Parole Commission [is] required to consider the sentencing factors
outlined in 18 U.S.C. § 3553(a).” Id. at 1264.
“[A] district court may determine, on a case-by-case basis, the weight to give
the Guidelines, so long as that determination is made with reference to the remaining
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section 3553(a) factors that the court must also consider in calculating the defendant’s
sentence.” United States v. Hunt, 459 F.3d 1180, 1185 (11th Cir. 2006). A variance
is within the court’s discretion, so long as the court has made no clear error of
judgment. See United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010)
(reviewing government appeal of downward variance).
On this record, we reject Stucki’s argument that “[t]he Parole Commission
officer . . . refused to recommend . . . a departure,” which “resulted in an unreasonable
sentence.” To the extent that Stucki challenges a refusal to depart under the
Guidelines, his argument fails because we cannot review the Parole Commission’s
refusal to grant a request for downward departure, unless the Commission believed
it did not have authority to depart. United States v. Gomez-Villa, 59 F.3d 1199, 1202
(11th Cir. 1995) (“Ordinarily, an appellate court may not review a district court’s
refusal to grant a request for downward departure.”). Here, the record here shows that
the Commission clearly considered the factors presented for a departure, and thus
believed it had authority to depart.
Moreover, to the extent that Stucki argues that the Parole Commission erred
in calculating his range correctly because it focused on the applicable guideline range
to the exclusion of other 18 U.S.C. § 3553(a) factors, this argument fails as well. The
Hearing Examiner explicitly stated that the Guidelines were advisory and the §
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3553(a) factors were considered, the Transfer Treaty Hearing Summary discussed a
number of those factors, and the Commission imposed a release date substantially
below the low end of the guidelines range. Therefore, Stucki has failed to show that
the sentence was unreasonable in light of the record and the § 3553(a) factors.
AFFIRMED.
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