Unpublished Disposition, 917 F.2d 1307 (9th Cir. 1986)

MEMORANDUM^** 

In January, 1987, appellant Abraham Jauregui-Sanchez pled guilty to charges of Conspiracy to Possess with Intent of Distribute a Controlled Substance, a violation of 21 U.S.C. § 846, and Possession with Intent to Distribute a Controlled Substance, a violation of 21 U.S.C. § 841(a) (1). In August, 1987, a United States Parole Commission panel assigned him a Category Six Offense Behavior Severity Rating and assigned parole eligibility guidelines of 40-52 months. Jauregui-Sanchez exhausted his administrative remedies and filed a habeas corpus petition under 28 U.S.C. § 2241 in the district court for the district of Arizona. Jauregui-Sanchez argued that the Parole Commission panel erred in its determination of his Offense Behavior Severity Rating and improperly exceeded the guidelines for parole release consideration. The district court denied the petition and Jauregui-Sanchez appeals.

FACTS AND PROCEEDINGS

From June 19, 1984, to June 11, 1986, Antonio Nunez, a codefendant of Jauregui-Sanchez, operated a heroin distribution network in Colorado. The Nunez operation was involved in the distribution of heroin inside the Colorado State Department of Correction at Cannon City. The prosecution considered Jauregui-Sanchez the "primary supplier" of heroin to the Nunez Network. On June 17, 1985, Nunez and others, but not including Jauregui-Sanchez, were arrested in possession of 105 grams of five to six percent pure heroin, and seventy-six grams of fifty-four percent pure heroin. Prosecutors believed, based on wire taps, that this heroin was supplied by Jauregui-Sanchez. A codefendant "provided statements that Antonio NUNEZ received his heroin from Abraham JAUREGUI, and that this was based on conversations between Antonio NUNEZ and Abraham JAUREGUI, when he was present." Western Union records indicated that Jauregui-Sanchez received payments from the Nunez operation during 1984 and 1985 of $42,900. In May, for the conspiracy charge. The record regarding the sentence for the possession charge is unclear.¹ 

In August, 1987, Jauregui-Sanchez appeared before a panel of the United States Parole Commission. A prehearing assessment report found the amount of heroin involved to be at least 50.69 grams²  and rated the severity of the conspiracy offense as a Category Six under 28 C.F.R. Sec. 2.20. At his hearing, Jauregui admitted the description in the assessment. Based on Jauregui-Sanchez's severity rating and salient factor score he was assigned a "guidelines" of 40-52 months.³  The panel recommended, however, that Jauregui-Sanchez "continue to expiration" his ten year sentence in prison.

ANALYSIS

A denial of a petition for writ of habeas corpus is reviewed de novo. Weinstein v. United States Parole Com'n, 902 F.2d 1451, 1986, Jauregui-Sanchez went to Colorado from his Los Angeles home. While there, he delivered 6.2 grams of seventy-one percent pure heroin to an informant for $2000. He was arrested on June 11, 1986, on charges of Conspiracy to Possess with Intent of Distribute a Controlled Substance under 21 U.S.C. § 846, and Possession with Intent to Distribute a Controlled Substance under 21 U.S.C. § 841(a) (1). He pled guilty to these charges in January, 1987.

Prior to sentencing, Jauregui told a probation officer that during the period of the conspiracy he sold heroin to the Nunez organization four or five times only, and received no more than $500 each time. He said he never dealt in quantities larger than one ounce and that Nunez would travel to his house to pick up the heroin. He denied being the primary source of heroin to Nunez.

The Presentence report noted that "two deaths occurred by heroin overdosed in the [Cannon City Prison], and that one of the deaths was traced to heroin provided by [Nunez]." The report also stated that Jauregui-Sanchez

is considered the second most culpable individual in this organization due to providing the heroin for distribution.... In addition to the street sales, a serious part of the conspiracy was the fact the heroin was going into a correctional facility which undermines the control and safety of guards and other inmates.

Based on the presentence report, the probation office recommended a sentence of eight years on the conspiracy charge and five years probation on the possession charge. He was sentenced to ten years 1453 (9th Cir. 1990). Our review of decisions by the United States Parole Commission "is narrowly limited to acts outside the Commission's statutory authority, decisions rendered outside its guidelines without a showing of good cause, and constitutional violations." Feldman v. Perrill, 902 F.2d 1445, 1449 (9th Cir. 1990) (citing Wallace v. Christensen, 802 F.2d 1539, 1546 (9th Cir. 1986) (en banc)). Substantive decisions of the Commission are " 'unreviewable even for abuse of discretion.' " Id. (quoting Wallace v. Christensen, 802 F.2d 1539, 1551-52 (9th Cir. 1986) (en banc))

I. Offense Severity Category.

The Commission found that Jauregui-Sanchez and the Nunez operation were in possession of at least 50.69 grams of heroin at the time of his, and the coconspirator's, arrest. Based on this finding they graded the severity of the conspiracy offense as a Category Six. Chapter Nine of 28 C.F.R. Sec. 2.20 provides:

(d) If large scale (e.g., involving 50-999 grams of 100% pure heroin, or equivalent amount), grade as Category Six [except as noted in (e) below];

(e) Where the Commission finds that the offender had only a peripheral role, grade conduct under (d) as Category Five.

Jauregui-Sanchez argues that the Parole Commission incorrectly labeled the severity of his offense as a Category Six "when the actual quantities involved and confiscated from him would have placed him in a Category Five." He also argues that his conduct was "that of a peripheral role offender."

Our review is limited to considering whether the Commission acted outside its statutory authority. Roberts v. Corrothers, 812 F.2d 1173, 1176 (9th Cir. 1987). In making its determination, the Commission is statutorily authorized to "consider ... presentence investigation reports." 18 U.S.C. § 4207. The Commission stated,

The [presentence investigation] is not totally clear as to the amount of Heroin involved over the full duration of the Conspiracy. We are aware however that there was on one occasion 105 grams at 5% purity ..., another 76 grams at 54% pure ..., and 6.2 grams at 71% pure.... The total pure would be 50.69 grams from the available information, it would appear that the actual amount distributed far exceeded 50 grams pure.

By relying on the presentence investigation report the Commission did not exceed its statutory authority.

II. Exceeding the guildelines.

The Commission, after grading the severity of the conspiracy offense as a Category Six and Jauregui-Sanchez's scoring salient factor rating as an eight, assigned him a parole eligibility guideline range of 40-52 months. The Commission, however, recommended that his incarceration be continued to expiration of his ten year sentence. Jauregui-Sanchez argues that there is no "rational basis for the decision outside the guidelines."

Again, we do not have jurisdiction to determine if the Commission's decision was correct, only to determine if acted outside its statutory limits. Wallace, 802 F.2d 1539 (9th Cir. 1986). The Commission may exceed the guidelines assigned to Jauregui-Sanchez "if it determines there is good cause for so doing." 18 U.S.C. § 4206. "A showing of good cause requires that the Commission advance in good faith reasons that are not ' "arbitrary, irrational, unreasonable, irrelevant or capricious." ' " Coleman v. Perrill, 845 F.2d 876 (9th Cir. 1988) (citations omitted).

The Commission justified exceeding the guidelines because Jauregui-Sanchez

was involved in a very serious offense where he was the direct supplier to an individual who in turn supplied Heroin to inmates within the Colorado State System in Canyon City, Colorado. The panel believes that this individual knew about the supply of his Heroin going into the correctional facility and endangering the lives of not only the correctional workers, but the Colorado State offenders.

At least one death at the correctional facility has been linked to heroin from the Nunez operation. We conclude that the Commission's justification for exceeding the guidelines was not arbitrary, irrational, unreasonable, irrelevant or capricious.

AFFIRMED.