Unpublished Disposition, 875 F.2d 319 (9th Cir. 1989)

No. 88-2930.

United States Court of Appeals, Ninth Circuit.

Before WALLACE and NOONAN, Circuit Judges, and WILLIAM L. DWYER, District Judge.^** 

MEMORANDUM^*** 

Douglas Rambo appeals the district court's dismissal of his petition for a writ of habeas corpus for lack of jurisdiction. We affirm.

FACTS

Rambo is serving an eight-year sentence for possession with intent to distribute and distribution of cocaine. At his first parole determination hearing, the hearing panel rated his offense severity as category seven, because the panel found that his offense involved six kilograms of cocaine. A category seven offense severity rating is given for possession or distribution "involving 5 kilograms, but less than 15 kilograms [of cocaine] of 100% purity, or equivalent amount; or 500 grams but less than 1.5 kilograms of free-based cocaine." 28 C.F.R. Sec. 2.20, ch. 9, subch. C, p 921(b) (1988). Based on that and other findings, the panel recommended that Rambo serve the expiration of his sentence without parole.

The recommendation was adopted by the Regional Commissioner and upheld on appeal by the National Appeals Board of the United States Parole Commission (the Commission). At a later statutory interim hearing, which Rambo also appealed to the Commission, the decision was affirmed.

ANALYSIS

Rambo claims that the parole hearing board mistakenly relied on a presentence report which stated that he had smuggled six kilograms of cocaine into the United States from Jamaica, when in fact he had smuggled only four kilograms. He also claims that the Commission erred in making its category seven offense rating because the Commission had no evidence of the purity of the cocaine he possessed and distributed. Finally, Rambo argues that the Commission violated 28 C.F.R. Sec. 2.19(c) (1988) and due process by not making available to him the basis for its decision of his offense severity rating.

We review de novo the denial of a writ of habeas corpus. Walker v. United States, 816 F.2d 1313, 1316 (9th Cir. 1987) (per curiam). However, in reviewing the Commission's parole decisions, we are concerned only with whether the Commission acted outside its statutory authority or whether its decision was so arbitrary as to violate due process. Wallace v. Christensen, 802 F.2d 1539, 1551-52 (9th Cir. 1986) (en banc). Any allowable judgments the Commission makes in arriving at its decision are within the Commission's discretion and are unreviewable. Id. at 1552.

In ruling on Rambo's claim, the Commission stated

Your claim that 4 kilograms of cocaine were smuggled into the United States via the cruise has been considered. Assuming you are correct, this would not warrant modification in your previous offense severity. In addition to this amount, you transported two kilograms of cocaine to Salt Lake City and your couriers had transported kilo quantities of cocaine to Los Angeles.

CR 10, Exh. 9. This evidence of Rambo's activity was documented in a prehearing assessment, CR 10, Exh. 1, and the presentence report, CR 11, and was properly before the Commission. The Commission did not act arbitrarily or outside its statutory authority in considering this evidence and reaching this conclusion. See Roberts v. Corrothers, 812 F.2d 1173, 1179-80 (9th Cir. 1987). Moreover, this evidence was available to Rambo, so there was no violation of 28 C.F.R. Sec. 2.19(c) or due process. Id. at 1179.

The purity of these six kilograms were never tested because they were successfully smuggled. However, the Commission could, in its discretion, infer that those kilograms were as pure as amounts seized from Rambo and from his co-defendants. Those kilograms ranged in purity from 90-98%. CR 11. As we read the relevant portion of 28 C.F.R. Sec. 2.20, it is within the judgment of the Commission to determine what constitutes an equivalent purity to 100%. We do not find that the Commission acted arbitrarily in determining that cocaine of 90-98% purity was equivalent to absolute purity.

AFFIRMED.