[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-12717 JAN 10, 2007
________________________ THOMAS K. KAHN
DOJ No. 31366-037 CLERK
SONNY ODILI,
Petitioner,
versus
UNITED STATES PAROLE COMMISSION,
Respondent.
_____________________________
Direct Appeal of Transfer Treaty Determination by the United States
Parole Commission Pursuant to 18 U.S.C. § 4106A
____________________________
(January 10, 2007)
Before PRYOR and FAY, Circuit Judges, and STEELE,* District Judge.
_____________________
*Honorable William H. Steele, United States District Court for the Southern District of
Alabama, sitting by designation.
STEELE, District Judge:
Appellant, Sonny Odili, was transferred to the United States after serving
more than two years of a 100-month term of imprisonment imposed by a
Panamanian court. Pursuant to 18 U.S.C. § 4106A, the United States Parole
Commission convened a transfer treaty hearing to set a release date and a period
and conditions of supervised release for Odili to complete the service of his
foreign sentence. Odili appeals from the Parole Commission’s determination,
pursuant to 18 U.S.C. § 4106A(b)(2). We affirm.
I. BACKGROUND
Odili, a United States citizen, was arrested on June 30, 2002 in the Republic
of Panama, after local police caught him and a co-defendant in the act of grinding
cocaine in a blender for concealment in false-bottomed luggage. Some 7,028.24
grams of cocaine were seized from the scene. Odili promptly confessed to his
involvement in secreting the drugs and cooperated with local authorities.
After pleading guilty to charges of aggravated possession of illegal drugs
against the public health, Odili was sentenced to a term of 100 months’
imprisonment by the Second Penal Court of the Judicial Circuit of the Republic of
Panama on July 16, 2002. The sentencing court was not moved by Odili’s
2
cooperation, inasmuch as he had been unable to provide substantial information to
aid authorities in identifying and locating his contact person, a shadowy figure
known only as Victor.
For the next 24 months, Odili was incarcerated in a Panamanian prison.
There he endured truly horrific conditions. He was repeatedly beaten and tortured,
resulting in the fracture of both his ankle and his knee. He was tear gassed. He
was denied access to running water and forced to use a plastic bag as a toilet.
Fortunately for Odili, efforts were initiated to repatriate him to this country.
Pursuant to treaty agreement and in accordance with 18 U.S.C. §§ 4105 and
4106A, Odili was transferred to the United States to serve the remainder of his
foreign sentence as of July 14, 2004.
Subsequent to his transfer, the United States Probation Office for the
Southern District of Florida prepared a Treaty Transfer Post-Sentence Report (the
“PSR”) concerning Odili for the Parole Commission’s use. Identifying 21 U.S.C.
§ 841(a)(1) as the most analogous federal offense to the Panamanian offense of
conviction, the PSR computed a base offense level of 32, with a three-level
downward adjustment for acceptance of responsibility. Based on a criminal
history category of II, the PSR yielded a sentencing guidelines range of 97 to 121
months. Odili’s counsel submitted written objections to the PSR in advance of the
3
transfer treaty hearing.
On February 1, 2005, the Parole Commission conducted a transfer treaty
hearing for Odili. The hearing examiner received extensive testimony from Odili
himself, and heard arguments from his appointed counsel. Odili’s position was
that the most analogous U.S. offense to the offense of conviction was simple
possession, not possession with intent to distribute; that he was entitled to a
mitigating role reduction; and that he should receive a downward departure
because of his cooperation, his abuse in the Panamanian prison, and his good
works in tutoring other inmates at the federal detention center where he was then
incarcerated.
The hearing examiner made written recommendations adopting the PSR’s
calculations that Odili’s total offense level was 29, that his criminal history
category was II, and that the applicable guidelines range was 97-121 months. She
also determined that a sentence below that range was appropriate based on Odili’s
torture in the foreign prison, the fact that the length of the foreign sentence limited
the available time for post-incarceration supervision, and his tutoring of fellow
inmates. On this basis, the hearing examiner recommended that Odili be released
after a total period of imprisonment of 85 months, after which he would serve a
60-month period of supervised release. The Parole Commission entered a
4
Transfer Treaty Determination that essentially adopted these recommendations. In
particular, the Parole Commission accepted the hearing examiner’s guidelines
calculations and set a release date after service of 85 months, to be followed by a
period of supervised release running until the earlier of 60 months or the full-term
date of Odili’s foreign sentence. Odili timely appealed.
During the pendency of this appeal, Odili petitioned the Parole Commission
for a new hearing on grounds, inter alia, that recently furnished documents from
his Panamanian counsel showed that he was entitled to a mitigating role reduction
and/or a further reduction for cooperation with Panamanian authorities. Upon
consideration of Odili’s motion, the Parole Commission entered a Modified
Transfer Treaty Determination, setting a release date after service of 81 months
based on his having furnished substantial assistance to foreign authorities in
prosecuting his co-defendant. The original Transfer Treaty Determination was
otherwise unchanged.
Odili appeals the Parole Commission’s determination on the grounds that it
improperly failed to give him a mitigating role adjustment, erroneously increased
the applicable supervised release term, improperly made drug quantity findings,
and applied the guidelines as mandatory. According to Odili, these errors resulted
in imposition of an unreasonable term of imprisonment and of supervised release.
5
II. STANDARD OF REVIEW
When an offender incarcerated in another country is transferred to the
United States to serve a sentence of imprisonment, the foreign sentence must be
administered under United States law. In that regard, 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). This
function rests with the Parole Commission, which is obliged to “determine 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, nor does it revisit questions of guilt or innocence. Instead, it simply
converts the foreign sentence into a determination of release date and a period and
conditions of supervised release. Bishop, 210 F.3d at 1303 n.11; Navarrete v. U.S.
Parole Comm’n, 34 F.3d 316, 319 (5th Cir. 1994).
In making a transfer treaty determination, “the Parole Commission is in an
analogous position to that of the district court relative to the convicted transferee.”
Bishop, 210 F.3d at 1302 n.11; see also Austin v. U.S. Parole Comm’n, 448 F.3d
197, 199 (2nd Cir. 2006) (“In effect, § 4106A gives the Parole Commission the
authority and the responsibility of a district court at sentencing ....”). This
6
function “is in procedure, substance, and effect tantamount to the imposition of a
federal sentence, and it should, for all practical purposes, be treated as such.”
Bennett v. U.S. Parole Comm’n, 83 F.3d 324, 327 (10th Cir. 1996).
Appellate review of a Parole Commission transfer treaty determination is
the functional equivalent of review of a district court’s sentencing determination.
Kleeman v. U.S. Parole Comm’n, 125 F.3d 725, 730 (9th Cir. 1997); Hansen v.
U.S. Parole Comm’n, 904 F.2d 306, 309 (5th Cir. 1990). Indeed, the statute
instructs appellate courts to decide such an appeal “as though the determination
appealed had been a sentence imposed by a United States district court.” 18
U.S.C. § 4106A(b)(2)(B). Questions as to whether the Parole Commission
committed errors of law in computing the applicable sentencing guideline range
are reviewed de novo if objection was made below. Tramel v. U.S. Parole
Comm’n, 100 F.3d 129, 131 (11th Cir. 1996); Rosier v. U.S. Parole Comm’n, 109
F.3d 212, 214 (5th Cir. 1997). Factual findings are reviewed for clear error, and
due deference is given to the Parole Commission’s application of the sentencing
guidelines to the facts. Navarrete, 34 F.3d at 318.
III. DISCUSSION
A. The Role Assessment Determination.
7
Odili’s first assignment of error is that, in computing the applicable
guidelines range, the Parole Commission erroneously denied his request for a
mitigating role adjustment. The sentencing guidelines provide that a defendant’s
offense level is adjusted downward if he is a minimal or minor participant in the
criminal activity. U.S.S.G. § 3B1.2. We have “long and repeatedly held that a
district court’s determination of a defendant’s role in the offense is a finding of
fact to be reviewed only for clear error.” United States v. Rodriguez de Varon,
175 F.3d 930, 937 (11th Cir. 1999) (en banc). This is because “[i]ntensely factual
inquiries such as these are properly consigned to the experienced discretion of the
district judge.” Id. at 938. “The proponent of the downward adjustment - here the
defendant - always bears the burden of proving a mitigating role in the offense by
a preponderance of the evidence.” Id. at 939. Given that a transfer treaty hearing
is the functional equivalent of a sentencing hearing, the “clear error” standard for
review of a district court’s role assessment determination applies with equal force
to the review of such a determination made by the Parole Commission in the §
4106A context.1
1
Although this is a question of first impression in this Circuit, several of our sister
circuits have so held. See Cafi v. U.S. Parole Comm’n, 268 F.3d 467, 475 (7th Cir. 2001)
(finding that Parole Commission did not clearly err in denying request for minor participant
reduction); Rosier, 109 F.3d at 214 (Parole Commission’s determination of whether to apply §
3B1.2 adjustment is heavily dependent on facts of particular case); Ajala v. U.S. Parole Comm’n,
997 F.2d 651, 656 (9th Cir. 1993) (reviewing for clear error Parole Commission’s denial of
8
Pursuant to Rodriguez de Varon, the Parole Commission’s determination of
Odili’s role in the offense is informed by the following two guidelines principles:
(1) whether Odili’s role in the relevant conduct (i.e., possession of more than 7
kilograms of cocaine) was minor, and (2) whether his conduct was minor as
compared to that of the other participant (i.e., his co-defendant in the house when
the Panamanian police arrived) in his relevant conduct. 175 F.3d at 940.
In support of the requested adjustment, Odili offered his own testimony at
the transfer treaty hearing. Odili testified that his Jamaica-based
telecommunications business fell on hard times, prompting him to relocate to
Panama in early June 2002 for the purpose of re-establishing that business in a
new locale. Although Odili had established a physical space for this business, he
was unable to commence work in Panama right away because of delays in
approval and delivery of telephone lines. To fill the idle time, Odili frequented a
bar where, during the second week of June, he encountered a Colombian man
named Victor. After multiple meetings over a period of days or even weeks, Odili
apprised Victor of his financial troubles, in response to which Victor offered him a
“little job.” Specifically, Victor promised to pay Odili $2,000 if he would help
another man to grind cocaine and prepare a suitcase. Odili agreed. On June 30,
downward adjustment for role in offense under U.S.S.G. § 3B1.2).
9
2002, Victor and another man picked up Odili at his hotel in downtown Panama
City and drove him to a house 90 minutes away. Victor instructed Odili to work
with the other man, and departed immediately. Approximately 35 to 45 minutes
later, police raided the house. Odili was caught red-handed, grinding cocaine for
concealment in a false-bottomed suitcase in a house with more than seven
kilograms of cocaine. Victor was apparently never apprehended.
According to Odili, he was simply a bit player in Victor’s scheme. As he
put it, “on arriving in Panama, I just run into the wrong friend.” If Odili’s story is
accepted as true, he had recently arrived in Panama for legitimate business
purposes when, by sheer happenstance, a virtual stranger plucked him off the
street, deposited him at a cocaine-laden house to help process and package drugs,
and then vanished into thin air, only for local police to storm the residence minutes
later. But the Parole Commission was not required to accept this narrative. The
hearing examiner repeatedly expressed reservations about the credibility of Odili’s
story. Odili himself recognized that his story might seem far-fetched, allowing at
one point, “Now, ma’am, I know it’s difficult to believe.” Ultimately, the Parole
Commission did not believe him. The hearing examiner stated that she did not
find Odili’s account credible because he was not a naïve and uneducated drug
courier; because there was no corroboration for his story; and because it did not
10
make sense that one with Odili’s skills and business acumen would undertake the
risks of packaging drugs for just $2,000, particularly when he had other means of
obtaining funds. Thus, the hearing examiner found it “more likely than not that
Odili had more of an interest in this venture than a $2,000 fee to grind cocaine and
put it in a suitcase.”2
On appeal, Odili proffers no basis for concluding that the Parole
Commission clearly erred in denying him a mitigating role adjustment. At most,
he argues that his version of the facts depicts him as nothing more than a low-level
helper. But he does not explain why we should overturn the Parole Commission’s
determination that his self-serving narrative was not credible. We have stressed
that, “because the fact finder personally observes the testimony and is thus in a
better position than a reviewing court to assess the credibility of witnesses,” a trial
court’s credibility determination “is conclusive on the appellate court unless the
judge credits exceedingly improbable testimony.” United States v. Ramirez-Chilel,
289 F.3d 744, 749 (11th Cir. 2002) (quoting United States v. Eddy, 8 F.3d 577,
2
For purposes of this appeal, Odili has not distinguished between the
recommendations of the hearing examiner and the determinations of the Parole Commission, but
instead appears to have assumed that, upon adopting her recommendations, the Parole
Commission also adopted the hearing examiner’s reasoning and subsidiary findings. See
generally Cafi, 268 F.3d at 476 (observing that many courts assume that Parole Commission’s
adoption of hearing examiner’s recommendations implies adoption of their underlying factual
findings and rationale, and making a similar assumption in context of denial of a minor-
participant reduction). We need not explore the validity of that assumption.
11
580 (7th Cir. 1993)).
The hearing examiner’s credibility finding, and our acceptance of same,
precludes Odili from establishing that either of the Rodriguez de Varon guideposts
favor a mitigating role adjustment in this case. Odili’s sole evidence that he was a
minimal or minor participant in the relevant conduct consisted of his own
testimony. Because the hearing examiner did not believe Odili, and because Odili
offers no viable grounds on appeal for disturbing that credibility determination,
there is no evidence to support a conclusion that his role in the relevant conduct
was minor or that his role, as compared to the other participant, was minor.
Accordingly, we find the Parole Commission did not clearly err in declining
to credit Odili’s testimony, and in finding that he was not entitled to a mitigating
role adjustment.
B. The Supervised Release Determination.
Next, Odili objects that the Parole Commission did not properly compute
his supervised release term when it modified his release date downward. In
particular, he submits that when the Parole Commission accelerated his release
date, it impermissibly increased his supervised release term, inasmuch as nothing
in the sentencing factors designated by 18 U.S.C. § 3553(a) would have supported
any such increase.
12
By statute, the combined periods of imprisonment and supervised release
resulting from a Parole Commission transfer treaty determination cannot exceed
the original term of imprisonment imposed by the foreign court. 18 U.S.C. §
4106A(b)(1)(C). The Panamanian court sentenced Odili to a prison term of 100
months; therefore, the combined total of the term of imprisonment and supervised
release period set by the Parole Commission was statutorily capped at 100
months.3
Odili’s original transfer treaty determination provided that the applicable
guideline period for supervised release was 36 to 60 months, pursuant to U.S.S.G.
§ 5D1.2(a)(1). On that basis, the Parole Commission fixed a supervised release
term of the lesser of 60 months or the full-term date of his foreign sentence. Given
Odili’s 85-month release date, and not counting any good-time credits, the
practical effect was that his supervised release term would be 15 months, or less
than half of the applicable guideline minimum. Odili contends that when the
3
That figure was a ceiling, not a floor. There is no requirement that the domestic
sentence be identical to the foreign prison term, and it would have been permissible for the
Parole Commission to impose combined prison and supervised release terms lower than the
Panama prison sentence. See Paura v. U.S. Parole Comm’n, 18 F.3d 1188, 1190 (5th Cir. 1994)
(finding error where Parole Commission decided that it was required to equate periods of
imprisonment and supervised release to length of foreign sentence); 28 C.F.R. § 2.68(3)
(recognizing that combined prison and supervised release terms may be less than full term
imposed by foreign court). Although this option was not selected, nothing in the record suggests
that the Parole Commission failed to appreciate that it was free to set Odili’s combined prison
and supervised release terms at a level below 100 months.
13
Parole Commission subsequently modified the release date from 85 to 81 months
based on his cooperation with foreign authorities, it improperly boosted his
supervised release period from 15 to 19 months. This premise is incorrect. The
modified transfer treaty determination left Odili’s supervised release provision
unchanged. As before, Odili is obligated to serve a supervised release term of the
lesser of 60 months or the full-term date of his foreign sentence. Thus, the Parole
Commission did not increase his supervised release term when it modified his
release date to account for foreign cooperation.
To be sure, Odili’s effective supervised release term will now be 19 months,
as compared to the 15 months it was previously; however, that figure remains but
a fraction of the 60-month term set by the Parole Commission, subject to the §
4106A(b)(1)(C) ceiling. Under any reasonable reading of the original transfer
treaty determination, the Parole Commission imposed on Odili a 60-month
supervised release term, subject to and limited by the binding constraint of §
4106A. When the Parole Commission advanced the release date, the § 4106A
constraint on the supervised release term was slightly relaxed, meaning that Odili
could serve a greater portion of the 60-month term which the Parole Commission
had sought to impose. That result is not properly characterized as an increase in
his supervised release term. In any event, nothing in these circumstances
14
constitutes a violation of § 4106A or a failure of the Parole Commission to
consider the § 3553(a) factors.4
More generally, to the extent that Odili is challenging the reasonableness of
the supervised release term, we find that the Parole Commission did not act
unreasonably in requiring him to serve a 19-month term of supervised release
following an 81-month term of imprisonment for possessing with intent to
distribute more than 7 kilograms of cocaine, a Class A felony ordinarily subject to
a supervised release term of 36 to 60 months.
C. The Drug Quantity Determination.
Odili also maintains that the Parole Commission contravened Apprendi v.
New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), by making a
finding of drug quantity attributable to him without such amount being charged in
an indictment. In pre-hearing submissions, however, Odili’s counsel advised the
hearing examiner that “Mr. Odili fully accepts responsibility for the approximately
seven kilos of cocaine found in the home of Pastor Rivera” (R6:10). In light of
4
In addition to arguing that his supervised release term was improperly increased,
Odili objects that the Parole Commission erred in failing to reduce the supervised release term
concurrently with the acceleration of his release date. In particular, Odili suggests that had the
Parole Commission applied the § 3553(a) factors, the modified transfer treaty determination
would have lowered his supervised release term below 15 months. But the Parole Commission
was under no duty, whether through § 3553 or any other provision, to effect any corresponding
reduction in Odili’s supervised release term simply because it advanced his release date by four
months.
15
this admission, Odili cannot now be heard to object to the Parole Commission’s
attribution of that very drug quantity to him in computing a guidelines range.
Besides, Apprendi provides that “[o]ther than the fact of a prior conviction, any
fact that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable doubt.”
530 U.S. at 490. Indeed, “in the context of federal drug cases, drug type and
quantity do not have to be charged in the indictment or submitted to the jury for
proof beyond a reasonable doubt” unless the defendant’s sentence exceeds the
prescribed statutory maximum. United States v. Tinoco, 304 F.3d 1088, 1100
(11th Cir. 2002). Odili was sentenced well below the 20-year default statutory
maximum for 21 U.S.C. § 841(b), so there is no Apprendi violation here.
D. Alleged Booker Error.
Odili also contends that the hearing examiner improperly treated the
sentencing guidelines as mandatory, in derogation of United States v. Booker, 543
U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), which was decided roughly
three weeks before the transfer treaty hearing. Booker error can take the form of
either constitutional error, when in a mandatory guidelines system the judge
imposes a sentence above that authorized by facts found by the jury or admitted by
the defendant, or statutory error, when the judge treats the sentencing guidelines as
16
binding for sentencing purposes, regardless of the sentence imposed. E.g., United
States v. Houston, 456 F.3d 1328, 1339 (11th Cir. 2006). The latter form of error
is invoked here.
Odili is correct that, for purposes of setting his release date under § 4106A,
the Parole Commission was obliged to afford the guidelines only advisory weight.5
Furthermore, because § 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 was required to consider the
sentencing factors outlined in 18 U.S.C. § 3553(a). See generally United States v.
Scott, 426 F.3d 1324, 1328 (11th Cir. 2005) (“Following Booker ... Section
3553(a) remains in effect, and sets forth numerous factors that guide sentencing.”)
(quotation omitted). Contrary to Odili’s position, however, that is precisely what
the Parole Commission did in this case.
5
There is some question as to whether the Parole Commission was ever bound by
the guidelines in making transfer treaty determinations. On its face, the statute requires the
Parole Commission only to consider the applicable guideline range, not to adhere to it. 18
U.S.C. § 4106A(b)(1)(B)(i) (Parole Commission “shall consider” recommended guidelines
range); see Austin, 448 F.3d at 201 (opining that the Parole Commission “was never bound by
the Guidelines, and is only required to consider ... the applicable guideline range - the standard
now familiar to every district court”). We need not decide that question, though, as the
intersection of Booker and § 4106A renders it unmistakably clear that the Parole Commission
must construe the sentencing guidelines as advisory for purposes of transfer treaty
determinations.
17
Odili argues that the “totality of the transcript” reflects that the Parole
Commission “did not perceive an advisory sentencing scheme,” but instead
erroneously applied the guidelines in a mandatory fashion. When pressed at oral
argument, however, Odili’s counsel correctly admitted that nothing in the record
suggests that the hearing examiner applied the guidelines as binding.
More importantly, a close look at the hearing transcript and written
recommendations shows that the Parole Commission did not consider the
guidelines to be mandatory. Odili’s release date was set 16 months earlier than the
low end of the applicable guidelines range, based on several specific factors
within the ambit of § 3553(a), to-wit: abuse and torture in a foreign prison,6 the
need to preserve adequate time for supervised release within the § 4106A
constraints, Odili’s tutoring assistance to other inmates, and his cooperation with
Panamanian authorities. In imposing a release date shorter than the guidelines
range based on these considerations, the Parole Commission was in fact weighing
the § 3553(a) factors, albeit not by name. More generally, the record reflects that
the hearing examiner deliberated at length concerning the nature and
circumstances of the offense, Odili’s history and characteristics, the kinds of
6
We have previously observed that physical abuse and/or torture during a period of
foreign incarceration may be an appropriate basis for setting release dates for transfer treaty
prisoners below the applicable guidelines range. Tramel, 100 F.3d at 132.
18
sentences available, the advisory guidelines range, and the like. That she did not
specifically identify each of these as § 3553(a) factors is of no consequence. Scott,
426 F.3d at 1329 (holding that “nothing in Booker or elsewhere requires the
district court to state on the record that it has explicitly considered each of the §
3553(a) factors or to discuss each of the § 3553(a) factors”).
For these reasons, there was no Booker statutory error here. Moreover, the
absence of any record basis for concluding that the Parole Commission applied the
guidelines in a mandatory fashion, especially when coupled with Odili’s
admission that he is responsible for seven kilograms of cocaine, is fatal to any
claims of Booker constitutional error that Odili may interpose.
E. Reasonableness.
Undergirding Odili’s objections to the Parole Commission’s decision is his
contention that the release date specified in the transfer treaty determination was
unreasonable. Of course, we evaluate the sentence imposed below for
reasonableness, with an eye towards assessing whether it achieves the objectives
set forth in § 3553(a). United States v. Arevalo-Juarez, 464 F.3d 1246, 1249
(11th Cir. 2006); United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).
“The party challenging a sentence bears the burden of establishing
unreasonableness in light of the § 3553(a) factors and the record established”
19
below. United States v. Wilks, 464 F.3d 1240, 1245 (11th Cir. 2006). These same
principles guide our review of a § 4106A transfer treaty determination. On the
record before us, we conclude that the Parole Commission correctly calculated the
guidelines range, considered the guidelines advisory, adequately took into account
the factors set forth in 18 U.S.C. § 3553(a), and imposed a release date
substantially below the low end of the guidelines range. Accordingly, Odili’s
sentence was reasonable in light of the record and the § 3553(a) factors.
IV. CONCLUSION
For the reasons stated, we discern no error in the Parole Commission’s
determinations concerning the release date and supervised release period for Odili
pursuant to 18 U.S.C. § 4106A.
AFFIRMED.
20