United States Court of Appeals,
Fifth Circuit.
No. 94-40126
Summary Calendar.
Lionel NAVARRETE, Petitioner,
v.
UNITED STATES PAROLE COMMISSION, Respondent.
Oct. 10, 1994.
Appeal from the Sentencing Determination of the United States
Parole Commission Section 4106A.
Before DUHÉ, WIENER and STEWART, Circuit Judges.
PER CURIAM:
Lionel Navarrete is an American citizen who was arrested,
convicted, and sentenced in Mexico for murder. Pursuant to the
Prisoner Transfer Treaty between the United States and Mexico,1 he
was transferred to the United States and incarcerated at the
Federal Correctional Institution at La Tuna, Texas for completion
of his sentence. Navarrete appeals the United States Parole
Commission's determination of a release date from his Mexican
sentence. For the reasons which follow, we dismiss the appeal.
FACTS AND PROCEDURAL HISTORY
United States citizen, Lionel Navarrete, his friend, Wayne
Gurlock, III, were arrested in Mexico on August 21, 1991 and
1
Treaty on Executions of Penal Sentences, Nov. 25, 1976,
U.S.-Mex., 28 U.S.T. 7399, T.I.A.S. No. 8718 [herein referred to
as "the treaty"]. For a detailed discussion of this treaty and
the attendant legislation, jurisprudence, regulations, and
interpretative sources, see Cannon v. U.S. Dept. of Justice, U.S.
Parole Comm'n, 973 F.2d 1190 (5th Cir.1992).
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convicted for the murder of two people. On May 4, 1992, the
Mexican court sentenced Navarrete to twenty-one years imprisonment.
Pursuant to the treaty, Navarrete was transferred to the United
States on July 16, 1993 to complete the service of sentence. He
filed a motion for downward departure based upon his innocence of
the crime for which he had been convicted in Mexico. Following a
treaty transfer hearing, the United States Parole Commission
determined that the applicable guideline range was 168-210 months
and that a downward departure was not warranted in this case. The
Commission set a release date of 180 months from the date of his
arrest (August 20, 2006), after which Navarrete is to be placed on
supervised release until the expiration of his twenty-one year
Mexican sentence.
Navarrete appeals the decision of the Commission, asserting
that it should have departed downward from the guidelines range due
to evidence of his innocence that was presented at the treaty
transfer hearing. As discussed below, we find no violation of law
in the Commission's refusal to grant Navarrete's motion for
downward departure.
In his brief, Navarrete also asserts that the Commission
should have adjusted his release date for the good conduct time
credits to which he is entitled. However, he subsequently filed a
Motion to Correct Brief which states the following:
Upon further consideration, appellant no longer desires
to pursue this issue and respectfully moves this Court to
delete such issue from consideration in this appeal.
We granted Navarrete's motion and, for this reason, we do not
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consider whether the Commission should have included his good time
credit as part of its release date calculation.
STANDARD OF REVIEW
When an offender is transferred to the United States to serve
a sentence of imprisonment, the United States Parole Commission
shall, without unnecessary delay, 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 court of appeals shall
decide and dispose of an appeal of the Commission's determination,
in accordance with 18 U.S.C. § 3742, as though the determination
appealed had been a sentence imposed by a United States district
court. 18 U.S.C. § 4106A(b)(2)(B).
Accordingly, we review the Commission's determination de novo.
Molano-Garza v. U.S. Parole Commission, 965 F.2d 20, 23 (5th
Cir.1992). We will uphold the sentence unless it "was imposed in
violation of law [or] imposed as a result of an incorrect
application of the sentencing guidelines," or "is outside the
applicable guideline range and is unreasonable or 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); U.S.
v. Buenrostro, 868 F.2d 135, 136 (5th Cir.1989). We also accept
the Commission's factual findings unless clearly erroneous and give
due deference to the Commission's application of the guidelines to
the facts. 18 U.S.C. §§ 3742(e) and 4106A(b)(2)(B).
DISCUSSION
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Navarrete asserts that "the Commission inappropriately
considered innocence only for modification within the guideline,
instead of a departure from the applicable guideline," and that
"[t]hough the Treaty makes no provision for the mitigating
circumstance of innocence, the purpose of the Federal Sentencing
Guidelines would be better served to acknowledge innocence,
especially in cases where the facts have been corroborated." He
argues that the Commission should have considered his codefendant's
statement (that he was not involved in the murder) in its decision
whether to depart from the applicable guideline range.2 Navarrete
also asserts that, because the Commission found evidence of torture
in this case, a downward departure based on his innocence should
have been the correct point of origin in computing his release
date.
The Commission is required to determine a release date, and
a period and conditions of supervised release, for Navarrete to
serve a sentence of imprisonment as though he were convicted in a
United States district court of a similar offense. 18 U.S.C. §
4106A(b)(1)(A). Navarrete's obligation to the Government has
already been established by the sentence imposed by Mexico's court.
2
The record reveals that the Commission agreed with the
panel of parole examiners which had considered both the evidence
presented at the hearing and the motion for departure but did not
deem this a case for departure from the guidelines. The record
also indicates that, absent the evidence presented by Navarrete,
the parole examiners would have recommended a release date at the
end of the twenty-one year term imposed in Mexico. Instead, the
examiners decided to give Navarrete nine months' consideration
from the middle of the guideline. The Commission accepted this
recommendation and set a release date in accordance therewith.
4
See Thorpe v. U.S. Parole Commission, 902 F.2d 291, 292 (5th
Cir.1990). Navarrete's argument misconstrues the Commission's
function. The Commission is authorized to determine a release date
and period of supervised release, not to sentence the transferred
prisoner. See and compare, Molano-Garza, supra, 965 F.2d at 24-25
and Thorpe, supra. Because the Commission is only determining a
release date and not sentencing the offender, we are not persuaded
by Navarrete's argument that the Commission should have considered
evidence of his innocence presented at the hearing.
Section 4106A(b)(2)(B) directs this court to dispose of this
appeal in accordance with 18 U.S.C. § 3742 as though the
determination appealed had been a sentence imposed by a United
States district court. As already noted, we will uphold a sentence
unless it (1) was imposed in violation of law, (2) was imposed as
a result of incorrect application of the sentencing guidelines, (3)
is a departure from the 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), (f). The Commission determined that the
applicable guideline range for this offense was 168-210 months and
decided Navarrete should be released from imprisonment after
serving 180 months. This release date is within the guideline
range. The Commission did not depart from the applicable range.
The Commission's denial of Navarrete's request for a downward
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departure does not involve any application of the guidelines.3
Under similar circumstances, we stated the following in Buenrostro,
supra, 868 F.2d at 139:
It follows that we will uphold a district court's refusal
to depart from the guidelines unless the refusal was in
violation of law.... A claim that the district court refused
to depart from the guidelines and imposed a lawful sentence
provides no ground for relief.
Thus, we do not review a district court's refusal to depart from
the guidelines unless the refusal was in violation of the law, U.S.
v. Burleson, 22 F.3d 93 (5th Cir.1994), and likewise, we do not
review the Commission's refusal to depart from the guideline range
unless the refusal was in violation of the law.
Navarrete does not challenge the Commission's determination of
either his offense level (33) or his criminal history category
(III). Instead, he challenges the Commission's decision not to
depart from the applicable guideline range. No law would compel a
departure in this case, even were the facts as Navarrete contends.
See and compare, U.S. v. Thomas, 870 F.2d 174, 176 (5th Cir.1989).
We review this challenge only for violation of the law, and we find
3
The only guideline cited by Navarrete is U.S.S.G. §
1B1.1(i), which is an application instruction to
Refer to Parts H and K of Chapter Five, Specific
Offender Characteristics and Departures, and to any
other policy statements or commentary in the guidelines
that might warrant consideration in imposing sentence.
Part H of Chapter Five sets forth policy statements
regarding whether various factors are relevant in
determining an appropriate sentence. Part K sets forth
policy statements regarding discretionary departures from
the guidelines. Neither part suggests that innocence is a
factor which renders the decision about a downward departure
mandatory rather than discretionary.
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none. Accordingly, we do not review the Commission's refusal to
depart from the applicable range of sentence under the guidelines.
APPEAL DISMISSED.
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