United States Court of Appeals,
Eleventh Circuit.
No. 95-5025
Non-Argument Calendar.
Michael W. TRAMEL, James Caudill, Petitioners,
v.
UNITED STATES PAROLE COMMISSION, Respondent.
Nov. 27, 1996.
Petition for Review of an Order of the United States Parole
Commission.
Before EDMONDSON, COX and CARNES, Circuit Judges.
PER CURIAM:
Petitioners Michael Tramel and James Caudill appeal sentencing
determinations issued by the United States Parole Commission
pursuant to hearings held at the Metropolitan Correctional Center
in Miami, Florida, where the petitioners are held.
Petitioners are citizens of the United States. Following
their arrest near Cat Cay, Bimini, on a boat carrying bales of
marijuana, they were convicted in the Commonwealth of the Bahamas
of possession of a dangerous drug with intent to supply. Each was
sentenced to four years imprisonment. Pursuant to the Convention
on the Transfer of Sentenced Persons, Council of Europe, they
subsequently were transferred to the United States to serve their
foreign sentences. Under 18 U.S.C. § 4106A(b)(1)(A), the United
States Parole Commission ("Commission") had jurisdiction to
determine a release date and a period of supervised release for
each prisoner. Specifically, the Commission, as required under
subsection (b)(1)(A), considered each prisoner as though he was
"convicted in a United States district court of a similar offense."
18 U.S.C. § 4106A(b)(1)(A). In July 1995, the Commission
determined that each petitioner should serve the full term of his
48-month foreign sentence and a six-month term of supervised
release.
The Commission examiner found that Tramel's base offense level
was 30. The examiner entered a two-level increase under U.S.S.G.
§ 2D1.1(b)(1) because Tramel's offense involved a firearm, and a
three-level decrease under U.S.S.G. § 3E1.1(b) because he accepted
responsibility. This placed Tramel's total offense level at 29.
Because Tramel had a Criminal History Category of I, his sentencing
guideline range was 87-108 months.
The examiner also found that Caudill's base offense level was
30. The examiner entered a three-level decrease under U.S.S.G. §
3E1.1(b) for acceptance of responsibility, placing Caudill's total
offense level at 27. With a Criminal History Category of II,
Caudill's sentencing guideline range was 78-97 months.
The examiner determined that both petitioners had endured
extremely harsh prison conditions in the Bahamas, and beatings by
guards that amounted to torture. Consequently, the examiner
concluded that a downward departure from the applicable guideline
range was appropriate. But the examiner rejected petitioners'
arguments that, in each case, the foreign sentence of 48 months
should be considered the guideline sentence from which the downward
departure was to be calculated. Concluding that the foreign
sentences themselves were more than sufficient departure for the
torture claims, the examiner declined to fix release dates prior to
expiration of the full terms of those sentences.
Contentions of the Parties
Petitioners argue that the hearing examiner and the Commission
erred in using the "preliminary" guideline sentence as the baseline
from which a downward departure was to be calculated. Because 48
months was the maximum sentence authorized by statute, petitioners
argue, 48 months became the guideline sentence under § 5G1.1(a).
In addition, petitioners contend that the hearing examiner and the
Commission should not have relied upon parole guidelines or
"policies" to determine the application of a departure.
The Commission responds by arguing that it committed no error
in using the applicable sentencing guideline range as the basis for
determining whether petitioners' Bahamian prison experience
warranted a downward departure great enough to justify a release
date earlier than 48 months. The Commission also contends that the
record in the case does not support petitioners' assertion that the
hearing examiner resorted to parole or other impermissible agency
guidelines in arriving at his recommended decisions.
Discussion
The question of whether the Parole Commission committed an
error of law by using the applicable sentencing guideline range as
the baseline for a downward departure is a question of law to be
reviewed de novo. Molano-Garza v. United States Parole Commission,
965 F.2d 20, 23 (5th Cir.1992), cert. denied, 506 U.S. 1065, 113
S.Ct. 1009, 122 L.Ed.2d 158 (1993).
When the applicable sentencing guideline range exceeds the
full term of the sentence imposed by a foreign court, a transfer
treaty prisoner's foreign sentence should be treated by the Parole
Commission as analogous to a § 5G1.1(a) "guideline sentence."1 See
Thorpe v. United States Parole Commission, 902 F.2d 291 (5th
Cir.1990). In such cases, the Commission may determine that the
appropriate release date under 18 U.S.C. § 4106A is upon expiration
of the full term of the foreign sentence. Thorpe upheld the
Commission's refusal to establish a release date prior to
expiration of the full term of the foreign sentence, despite "the
abuse [Mr. Thorpe] suffered at the hands of the foreign officials."
902 F.2d at 292. The Commission relied on the fact that the
Mexican court imposed an 84-month sentence and, "if Thorpe had been
convicted in a United States court, he would be subject to an
imprisonment range under the Guidelines of 151 to 188 months." Id.
We find the reasoning of Thorpe to be convincing and we affirm the
U.S. Parole Commission's sentencing determinations in this case.
When the Commission makes transfer treaty decisions, it is
required by § 4106A(b)(1)(B)(I) to consider any recommendation of
the U.S. Probation Office, including any recommendation about the
applicable guideline range. The Commission must also consider,
pursuant to U.S.S.G. § 5K2.0 and 18 U.S.C. § 3553(b), whether a
ground exists for a downward departure "outside the range
1
Section 5G1.1(a) states: "Where the statutorily authorized
maximum sentence is less than the minimum of the applicable
guideline range, the statutorily authorized maximum sentence
shall be the guideline sentence." The commentary to § 5G1.1(a)
clarifies this statement: "For example, if the applicable
guideline range is 51-63 months and the maximum sentence
authorized by statute for the offense of conviction is 48 months,
the sentence required by the guidelines under subsection (a) is
48 months; a sentence of less than 48 months would be a
guideline departure."
established by the applicable guideline."2 A commonly asserted
ground for departure in the case of transfer treaty prisoners is
that the prisoner suffered physical abuse and/or torture while
incarcerated in a foreign prison. The Commission agrees that such
abuse or torture can be an appropriate basis for a downward
departure.
In cases where the foreign sentence is below the applicable
guideline range, the Commission has ordered a downward departure
substantial enough to justify a release date prior to expiration of
the full term of the foreign sentence. See Trevino-Casares v. U.S.
Parole Commission, 992 F.2d 1068 (10th Cir.1993) (ordering a
release date at 71 months on a 108-month Mexican sentence after
determining that the appropriate guideline range was 121-151
months). However, the Commission is not required to disregard the
applicable guideline range when determining whether a downward
departure should be ordered. In Trevino-Casares, the Commission
decided that a departure was appropriate because the prisoner
suffered "serious and severe physical abuse while in foreign
custody resulting in permanent physical damage." 992 F.2d at 1071.
In Thorpe, by contrast, the Commission concluded that an earlier
release date was not appropriate. The Commission's decisions in
the present cases fall into the same category as those in Thorpe.
2
Section 5K2.0, "Grounds for Departure (Policy Statement),"
states, in part: "Under 18 U.S.C. § 3553(b) the sentencing court
may impose a sentence outside the range established by the
applicable guideline, if the court finds "that there exists an
aggravating or mitigating circumstance of a kind, or to a degree,
not adequately taken into consideration by the Sentencing
Commission in formulating the guidelines that should result in a
sentence different from that described.' "
Although the examiner found that Tramel and Caudill were
mistreated, their incarceration in the Bahamas was relatively brief
and their circumstances were not as severe as those described in
Trevino-Casares. In the end, a foreign sentence does not under §
5G1.1(a) displace the applicable guideline range; it is the
sentence required by the guidelines, but not a substitute for the
guideline range itself. See Commentary to § 5G1.1(a); United
States v. Lattimore, 974 F.2d 971, 973 (8th Cir.1992) (rejecting
the contention that an otherwise applicable guideline range of 78-
97 months becomes a guideline range of 60-97 months when the
mandatory minimum for conviction of the offense is 60 months).
The record plainly indicates that the hearing examiner
understood his authority to depart downward from the full term of
petitioners' foreign sentences, but decided against such a
departure after giving due regard to the applicable guideline range
as the measure of the seriousness of petitioners' crimes. A
decision not to depart downward is not reviewable on appeal. 18
U.S.C. § 3742(a).
Finally, we reject petitioners' contention that the examiner
improperly relied on parole guidelines. The records in
petitioners' cases show that the examiner received guidance from
the Commission as to the appropriate base point from which to
subtract any downward departure the examiner found warranted. This
guidance had been given to the examiner prior to the hearings, and
included an unpublished decision of the Fifth Circuit Court of
Appeals, Roeder v. U.S. Parole Commission, 5 F.3d 529, No. 93-4114
(1993). Nothing in the record indicates that the examiner
considered other guidelines to determine the appropriate departure.
The examiner explained that his finding was based upon "many of our
other awards that [we] have been giving over the years." (Tramel,
R.1-K at 68-69.) The examiner cannot be faulted for being aware of
the Commission's past practice in similar transfer treaty cases,
and for considering that practice as unwritten guidance in his
effort to achieve an equitable result. There is no reference in
the record to the use or role of any "parole guidelines."
AFFIRMED.