Unpublished Disposition, 893 F.2d 1338 (9th Cir. 1987)

MEMORANDUM^** 

Ricardo Briones ("Briones"), a federal prisoner, appeals pro se from the district court's denial of his petition for habeas corpus. Briones' suit challenges a decision of the United States Parole Commission ("the Commission") denying him parole. He argues that the Commission exceeded its statutory authority by rendering a parole decision above the recommended guidelines without demonstrating good cause. We affirm.

BACKGROUND

On September 25, 1987, Briones pleaded guilty to two counts of possession of cocaine with intent to distribute and was sentenced to ten years imprisonment. In April 1988, the Commission held an initial hearing to evaluate Briones' case for parole.

As prescribed by its regulations, the Commission initially evaluates each case on the basis of two variables. 28 C.F.R. Sec. 2.20 (1985). The first variable is the "offense behavior severity," which on a scale of 1 (low severity) to 8 (high severity) rates the offense for which the prisoner was convicted. The second variable is the "salient factor score," which assesses the risk of parole violation on a scale of 0 (high risk) to 10 (low risk). Based on these two variables, the regulations indicate presumptive time ranges for release on parole. Id. Sec. 2.20(b). The regulations further state: "These time ranges are merely guidelines. Where circumstances warrant, decisions outside of the guidelines (either above or below) may be rendered." Id. Sec. 2.20(c). The governing statute similarly provides:

The Commission may grant or deny release on parole notwithstanding the guidelines ... if it determines there is good cause for so doing: Provided, That the prisoner is furnished written notice stating with particularity the reasons for its determination, including a summary of information relied upon.

18 U.S.C. § 4206(c) (1982).

At his initial parole hearing, Briones' offense-severity was rated Category 6 "because it involved possession with intent to distribute or distribution of more than one but less than five kilograms of pure cocaine, more than five grams but less than fifty grams of pure heroin, and the cultivation with intent to distribute more than 20,000 pounds of marijuana." He received a salient factor score of 9. Although the guidelines recommend parole between 40 and 52 months for individuals with offense-severity ratings of 6 and salient factor scores of 9, Briones was informed that the Commission was exceeding its guidelines and continuing him to the expiration of the sentence. The reasons given for exceeding the guideline range were that Briones was "described as being in charge of a large scale highly sophisticated drug scheme that covered two states" and that "the marijuana involved is three times the amount to classify as Category Six." (CR 8 at Exh. D.)

After exhausting his administrative appeals, Briones filed a habeas corpus petition under 28 U.S.C. § 2241, claiming that the Commission failed to state with particularity the reasons for its parole decision, and that the Commission lacked "good cause" to exceed the guidelines because (1) the Commission used the same information to establish his offense-severity rating and to support its decision above the guidelines, and (2) the Commission relied on erroneous information in making its parole determination. The district court found that the Commission had demonstrated good cause and denied Briones' petition. This appeal followed.

ANALYSIS

We review de novo the district court's denial of a habeas corpus petition. Reiger v. Christensen, 789 F.2d 1425, 1427 (9th Cir. 1986). This circuit has held, however, that Parole Commission decisions are reviewed only within a very narrow scope. Wallace v. Christensen, 802 F.2d 1539 (9th Cir. 1986) (en banc). The scope of review is well summarized in Walker v. United States, 816 F.2d 1313, 1316 (9th Cir. 1987):

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. [citing Wallace, 802 F.2d at 1551.] If "the Commission's decision involves the exercise of judgment among a range of possible choices or options," it is unreviewable. Id. at 1552. But a decision that "involves a plain violation of a matter which does not admit of discretion and choice" (such as the failure to follow certain statutory requirements) is reviewable. Id. at 1551-52. For instance, if the Commission has rendered a parole decision "notwithstanding" or "above" the guidelines, a court may consider whether the Commission failed to show "good cause" for doing so but may only inquire whether that showing was arbitrary, irrational, unreasonable, irrelevant, or capricious. Id. at 1551; see Bowen v. U.S. Parole Comm'n, 805 F.2d 885, 888 (9th Cir. 1986).

Briones first argues that the Commission's statement of reasons for its parole decision above the guidelines was insufficient to satisfy the requirements of 18 U.S.C. § 4206(c). That statute requires that the prisoner be "furnished written notice stating with particularity the reasons for its determination, including a summary of information relied upon." This circuit has described the applicable due process requirements in similar terms.

We have held that the federal parole statute creates, at most, a liberty interest entitled to no more protection of due process than that the Supreme Court held to apply to the Nebraska parole statute in Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 99 S. Ct. 2100, 60 L. Ed. 2d 688 (1979). Bowles v. Tennant, 613 F.2d 776, 778 (9th Cir. 1980). Greenholtz held that Nebraska inmates had an expectation of parole that should not be denied without an opportunity to be heard and notification of the parole board's reasons for denial of parole. 442 U.S. at 16, 99 S. Ct. at 2108.

Reynolds v. McCall, 701 F.2d 810, 812 (9th Cir. 1983); See also Solomon v. Elsea, 676 F.2d 282, 284-86 (7th Cir. 1982).

In its notice to Briones informing him of the decision to continue him to the expiration of the sentence, the Commission stated:

Your offense behavior has been rated as Category Six severity because it involved the possession with intent to distribute or distribution of more than 1 but less than 5 kilograms of pure cocaine, more than 5 grams but less than 50 grams of pure heroin and the cultivation with intent to distribute more than 20,000 pounds of marijuana. Your salient factor score (SFS-81) is 9. You have been in federal confinement as a result of your behavior for a total of 12 months. Guidelines established by the Commission indicate a range of 40-52 months to be served for cases with good institutional adjustment and program achievement. After review of all relevant factors and information presented, a decision above the guidelines appears warranted because your offense behavior involved the following aggravating factors: you are described as being in charge of a large scale highly sophisticated drug scheme that covered two states. Further, the amount of marijuana involved is 3 times the amount to classify as Category Six. (CR 8 at Exh. D.)

This statement specifies why the Commission rendered a decision above the guidelines. The essential facts relied upon by the Commission--Briones level of involvement in a large scale, highly sophisticated drug scheme and the amount of marijuana involved--are adequately furnished. Contrary to Briones' contention, the Commission's use of the phrase "highly sophisticated drug scheme" without further explanation does not render the statement insufficient. Rather, the precise definition of "sophisticated" and whether Briones' offense behavior is appropriately described as such are issues which go to the merits of the Commission's decision. In short, the statement adequately informed Briones of the grounds for the decision and the issues to be raised in his administrative appeal; it also enables a court of review to determine whether the decision was based on an impermissible reason. Thus, the statement is both constitutionally and statutorily sufficient. See Reynolds, 701 F.2d at 813; Solomon, 676 F.2d at 286.

Any challenge to the merits of the Commission's decision also falls short. First, it is clear that Congress wanted the Commission to have the authority to go above the guidelines when it concludes that a prisoner has been involved in an offense "with an unusual degree of sophistication or planning ... or was part of a large scale conspiracy or continuing criminal enterprise." H.R.Conf.Rep. No. 94-838, 94th Cong., 2d Sess. 27, reprinted in 1976 U.S.Code Cong. & Admin.News 351, 359; see also Maddox v. United States Parole Comm'n, 821 F.2d 997, 1000-01 (5th Cir. 1987); Alessi v. Quinlan, 711 F.2d 497, 500 (2d Cir. 1983). Second, the Commission may consider the presentence report, which may serve as a basis for its decision. Walker, 816 F.2d at 1317 (citing Roberts v. Corrothers, 812 F.2d 1173, 1179 (9th Cir. 1987); Anderson v. United States Parole Comm'n, 793 F.2d 1136, 1137 (9th Cir. 1986)). Briones' presentence report described the scale and complexity of the drug distribution organization within which Briones operated and stated that investigations in Mexico, California and New Mexico, covering more than one year, revealed that Briones directed a highly sophisticated drug operation covering the Los Angeles, California and Albuquerque, New Mexico areas. Accordingly, the Commission's consideration of the scale and sophistication of Briones' offense as a factor in its determination that "good cause" existed to go above the guidelines was not arbitrary or irrational. We lack jurisdiction to consider the Commission's decision any more closely. See Walker, 816 F.2d at 1316.

Briones next argues that the Commission used the amount of marijuana involved as a basis both for his initial offense-severity rating and to support its decision above the guidelines. He contends that this constitutes impermissible "double-counting." The Second and Eighth Circuits have prohibited double-counting as irrational and therefore a violation of due process. See Lynch v. United States Parole Comm'n, 768 F.2d 491, 496 (2d Cir. 1985); Briggs v. United States Parole Comm'n, 736 F.2d 446, 450 (8th Cir. 1984). The Ninth Circuit has stated in dicta that it does not follow the general rule against double-counting. See Torres-Macias v. United States Parole Comm'n, 730 F.2d 1214, 1218 (9th Cir. 1984); Reynolds, 701 F.2d at 813 (9th Cir. 1983). On other occasions, the Ninth Circuit has suggested disapproval for double-counting. See Walker, 816 F.2d at 1316.

We need not reach the double-counting issue. In establishing Briones' offense-severity rating the Commission considered the 60,000 pounds of marijuana involved only to the extent it satisfied the 20,000 pound threshold requirement.¹  The Commission's decision above the guidelines, however, was based in part on the fact that the 60,000 pounds of marijuana is three times the amount required for a Category 6 severity rating. As long as the amount of drugs beyond that used to set the offense-severity rating is not trifling or minor, consideration of the excessive amount of drugs involved as an "aggravating factor" does not constitute double-counting. See e.g., Castaldo v. United States Parole Comm'n, 725 F.2d 94, 96 (10th Cir. 1984); Maddox, 821 F.2d at 1002 (5th Cir. 1987); Harris v. Martin, 792 F.2d 52, 55 (3rd Cir. 1986); Solomon, 676 F.2d at 287; Alessi, 711 F.2d at 500; see also Walker, 816 F.2d at 1316 (" [The] argument that the offense behavior rating for the current offense necessarily subsumes any 'aggravating circumstances' of that offense is incorrect.") Since the amount of marijuana involved in the instant case is three times--or 40,000 pounds over--that used as a basis for the offense-severity rating, the difference is patently not trifling or minor. Accordingly, Briones' arguments based on double-counting fail.

Finally, Briones argues that the aggravating factor of the cultivation with intent to distribute 60,000 pounds of marijuana was not established by a preponderance of the evidence. See C.F.R. Sec. 2.19(c). This standard does not, as Briones suggests, apply to each item of information, but instead to the evidence taken as a whole. Walker, 816 F.2d at 1317 (citing Roberts, 812 F.2d at 1179). Briones challenged this information, which was contained in the presentence report, at his initial parole hearing and again in his administrative appeal. On both occasions, the Commission found the information to be accurate and reliable. We lack jurisdiction to review the reliability of the sources of the information in the presentence report. Id. (Citing Roberts, 812 at 1180). The Commission's determination was within its discretion. Id.

Based on the foregoing, we find that the Commission's determination that "good cause" existed to go above the guidelines was not arbitrary or irrational. See Walker, 816 F.2d at 1316. Accordingly, the district court's denial of Briones' petition for habeas corpus is AFFIRMED.