Unpublished Disposition, 875 F.2d 318 (9th Cir. 1989)

Annotate this Case
U.S. Court of Appeals for the Ninth Circuit - 875 F.2d 318 (9th Cir. 1989)

Victor Nhamdi ANOFIENEM, Petitioner-Appellant,v.UNITED STATES PAROLE COMMISSION; Roger F. Scott, Warden,FCI-Safford, Arizona, Respondents-Appellees.

No. 87-2876.

United States Court of Appeals, Ninth Circuit.

Submitted*  April 17, 1989.Decided May 19, 1989.

Before MERRILL, EUGENE A. WRIGHT and BEEZER, Circuit Judges.


MEMORANDUM** 

FACTS

Victor Anofienem, a federal prisoner, appeals pro se the denial of his 28 U.S.C. § 2254 habeas corpus petition. He contends that the Commission acted in an arbitrary and capricious manner by categorizing his offense as a five rather than a four. We affirm.

Anofienem pleaded guilty to unlawful possession of stolen mail, resulting from his involvement in a credit card scheme in Texas, and was sentenced to five years. The Parole Commission initially determined that Anofienem's offense severity rating should be classified as a category four, with presumptive parole after 20 months.

However, the Regional Commissioner recommended an offense severity rating of five, with presumptive parole after 36 months, because Anofienem had been involved in a scheme with others that resulted in total victim losses of about $456,000, noting that he was one of the top seven participants in a scheme which resulted in 18 arrests.

The National Commissioners adopted this recommendation and informed Anofienem that based on the fact that he had been one of the top seven participants in a fraud with losses less than $500,000 his offense was now categorized as a five and he would be required to serve 36 months. He appealed to the National Appeals Board, alleging that the Commission had erroneously classified his offense as a five because he was not a ringleader in the activity at issue. The Board affirmed the 36 month recommendation. Anofienem's habeas petition was denied by the district court.

We review de novo the district court's denial of a 28 U.S.C. § 2241 habeas corpus petition. Roberts v. Corrothers, 812 F.2d 1173, 1178 (9th Cir. 1987). The scope of our review of parole decisions, however, is "exceedingly narrow." Walker v. United States, 816 F.2d 1313, 1316 (9th Cir. 1987) (citing Wallace v. Christensen, 802 F.2d 1539, 1552 (9th Cir. 1986) (en banc)). "Judgments involving a broad range of factors that the Commission takes into account in arriving at its decision are committed to the Commission's discretion and are unreviewable even for abuse of discretion." Id. However, a decision involving a nondiscretionary matter, such as failure to follow certain statutory requirements, is reviewable. Id. Similarly, the court "may consider constitutional challenges and determine whether the Commission's action was so arbitrary as to violate due process." Id. In reviewing a decision of the district court, we may affirm on any ground finding support in the record. Bowen v. United States Parole Commission, 805 F.2d 885, 887 (9th Cir. 1986).

Anofienem contends that the Commission deprived him of his due process rights by withholding information upon which it had relied in making its determination. This contention lacks merit.

The Commission's failure to provide a prisoner with access to information which the Commission considers instrumental to a parole release decision constitutes a violation of the Parole Commission & Reorganization Act, 18 U.S.C. § 4201 et seq. Anderson v. United States Parole Commission, 793 F.2d 1136, 1137 (9th Cir. 1986). The Commission may consider any available information in setting a parole release guideline range, but failure to provide the information to the prisoner clearly violates the plain meaning of the parole statute. See Id.

Anofienem claims that he was unaware of the existence of a letter from the Postal Inspector outlining the details of the sting operation that culminated in his arrest along with 17 others until he read the response to his habeas petition.1  However, the information he received in the Notice of Action from the Commission was sufficient notice of the information in the Postal Inspector's letter.

Inspector Pry's letter, unavailable at the initial parole hearing, and relied on by the Regional Commissioner, describes the sting operation resulting in the arrest of 18 persons and estimates that the losses from the use of each credit card was, conservatively, "$3,000 per card multiplied by 152 cards, resulting in a total estimated loss of $456,000." Pry's letter does not name Anofienem personally, but lists him as one of the top seven participants based on his personal use of the cards within the larger fraud scheme. The Commissioner's Notice of Action informed Anofienem that his offense was being categorized as a five because "it involved credit card fraud with losses less than $500,000 with you being identified as one of the top seven participants in the fraud." Anofienem argued in his administrative appeal that because he was neither one of the top seven participants nor responsible for losses over $100,000, the category five determination was incorrect. He reasoned that the testimony of Inspector Pry did not support a category five determination because Pry was unable to put an exact dollar amount on the losses incurred in the fraud.

Thus, even though Anofienem did not have an opportunity to see the letter, the Commission notified him of the reason for its recategorization, a reason which effectively summarizes the contents of Pry's letter. Accordingly, although the Commission's reliance on the letter was technically a violation of its own rules, the error was harmless because Anofienem was on notice of the information through the Notice of Action sent to him by the Commission. See Bowles v. Tennant, 613 F.2d 776, 779 (9th Cir. 1980).

Anofienem contends that the Commission violated its own rules by holding him accountable for the actions of others. This contention lacks merit.

28 C.F.R. Sec. 2.20, ch. 13(A) (4) (1988) states that the "prisoner is to be held accountable for his own actions and actions done in concert with others; however, the prisoner is not to be held accountable for activities committed by associates over which the prisoner has no control and could not have been reasonably expected to foresee." 28 C.F.R. Sec. 2.20, ch. 13(A) (4).

In this case, there is evidence to support a determination that Anofienem could have been reasonably expected to foresee the actions of the others, thereby holding himself open to liability for the collective loss resulting from the fraud scheme.

The sentencing judge recommended a release date 12 months above the guidelines and noted these aggravating factors: (1) Anofienem was indicted after a sting operation; (2) he was involved in 12 different transactions involving stolen credit cards for a loss of some $76,000; (3) he had a prior credit card conviction; and (4) his culpability was relatively high.

The letter from Inspector Pry to the Parole Commission described an organized, sophisticated endeavor involving 18 participants and carried out openly from a storefront operation. Anofienem admitted participation in the group, though he denied any position of influence or leadership. Even if the Commission erred in considering the letter from Inspector Pry, given Anofienem's contention that he was unaware of it and so had no opportunity to dispute it, there is enough information in the report from the sentencing judge to form a rational basis for the Commission's determination that the situation was such that Anofienem could have foreseen that losses over $100,000 could result from his activity. See 28 C.F.R. Sec. 2.20, ch. 13(A) (4) (1988); see Bowles, 613 F.2d at 779.

Anofienem contends that the Commission violated his due process rights by its arbitrary and capricious act of setting his offense severity level at five based on credit card fraud involving between $100,000 and $500,000, after initially setting it at level four involving fraud under $100,000, based on information that Anofienem had been one of the top seven participants in a credit card fraud ring estimated to have involved losses in excess of $100,000. This contention lacks merit.

District courts lack jurisdiction to delve into discretionary determinations made by the Parole Commission in the setting of offense categories. See Wallace v. Christensen, 802 F.2d 1539 (9th Cir. 1986) (en banc). The district court did not err in dismissing the habeas petition unless the Commissioner's decision was so arbitrary as to violate due process. See Walker, 816 F.2d at 1316.

The crux of Anofienem's contention appears to be that the Commission arbitrarily decided to categorize his offense as a five in spite of evidence supporting the categorization of it as a four. Because there is evidence to support either classification, we have no jurisdiction to review the Commission's decision by scrutinizing the relevance of information considered by the Commission or the reliability of the sources of that information. See Walker, 816 F.2d at 1317. Roberts, 812 F.2d at 1179-80; Wallace, 802 F.2d at 1551.

Moreover, the Commission's weighing of evidence properly before it and its judgment that Anofienem was one of the top seven members of a fraud involving between $100,000 and $500,000 did not violate a mandatory or nondiscretionary standard, but rather, involved a judgment among a range of possible choices and options relating to the severity of his offense. See Wallace, 802 F.2d at 1553. As the Commission acted within the scope of its discretion, our review of its classification of Anofienem's offense is complete. Id.

Given the conflicting evidence as to the level of Anofienem's individual profit and collective participation in this fraud scheme, it cannot be said that the Commission's ultimate determination that his offense should be classified as a five is so arbitrary and capricious as to amount to a violation of due process. See Wallace, 802 F.2d at 1553 n. 9.2 

AFFIRMED.

 *

The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

He further contends that the Commission's determination was erroneous because it was not supported by a preponderance of the evidence. This contention is without merit. 28 C.F.R. Sec. 2.19(c) (1988) provides that the Commission "may take into account any substantial information available to it" when establishing aggravating factors, and that if a prisoner disputes the accuracy of the information presented to the Commission, "the Commission shall resolve such disputes by the preponderance of the evidence standard; that is, the Commission shall rely upon such information only to the extent that it represents the explanation of the facts that best accords with reason and probability." However, the Sec. 2.19(c) preponderance of the evidence standard does not require that the Commission issue findings of fact to show how the dispute was resolved nor does it apply to each item of information presented to the Commission, but only to the evidence taken as a whole. Walker, 816 F.2d at 1317. We do not have jurisdiction to review the relevance of information considered by the Commission or the reliability of the sources of that information. See discussion in part C, infra. Because there was evidence properly before the Commission which would support its determination by an explanation of the facts which accords with reason and probability, this court's review must end. 28 C.F.R. Sec. 2.19(c) (1988); Roberts, 812 F.2d at 1179-80

 2

Anofienem contends for the first time on appeal that the Commission denied him due process by wrongly considering the fact that he is a Nigerian national in making its determination, and by denying him counsel. Because neither of these issues was raised below, this court lacks jurisdiction to consider them on appeal. See In re Southeast Co. v. Florida Partners Corp., No. 88-5606, slip op. at 1265 (9th Cir. Feb. 21, 1989); Green v. Christiansen, 732 F.2d 1397, 1400 n. 1 (9th Cir. 1984) (failure to assert an improper arrest claim as a ground for release in habeas petition before the district court precludes petitioner from raising the issue on appeal)