Unpublished Disposition, 893 F.2d 1339 (9th Cir. 1987)

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U.S. Court of Appeals for the Ninth Circuit - 893 F.2d 1339 (9th Cir. 1987)

Ramee Jamal SHAH, Petitioner-Appellant,v.William PERRILL, Warden; United States Parole Commission,Respondents-Appellees.

No. 88-4057.

United States Court of Appeals, Ninth Circuit.

Submitted Jan. 10, 1990.* Decided Jan. 18, 1990.

Before JAMES R. BROWNING, BEEZER and RYMER, Circuit Judges.


MEMORANDUM** 

Ramee Jamal Shah, a federal prisoner, appeals pro se the district court's denial of his 28 U.S.C. § 2241 habeas petition. We affirm.

Shah was convicted on July 1, 1986 of conspiracy to possess heroin with intent to distribute, and sentenced to 12 years. In February 1987, the United States Parole Commission ("Commission") determined Shah's offense and history indicated a guideline range of 72-100 months. The Commission therefore continued him to the expiration of his sentence, 96 months.

* We review the denial of a habeas petition de novo. Smith v. United States Parole Commission, 875 F.2d 1361, 1363 (9th Cir. 1989).

II

Shah asserts his parole release date should have been calculated to be 41-51 months, the sentence he allegedly would have received had he been sentenced under the Sentencing Guidelines enacted pursuant to the Sentencing Reform Act ("Act"). If Shah is challenging his 12-year sentence, as opposed to his parole term, he must bring that claim in a 28 U.S.C. § 2255 motion to vacate in the district court in which he was sentenced. See Dunne v. Henman, 875 F.2d 244, 249 (9th Cir. 1989). If, however, he is arguing the Commission should use the Sentencing Guidelines to calculate his parole term, this argument is meritless.

Under Section 235(b) (1) of the Act, 98 Stat.1976, 2032 (1984), 18 U.S.C. § 4206 remains in effect for individuals convicted before November 1, 1987. Section 4206 requires the Commission to make its decisions with reference to the parole guidelines promulgated at 28 C.F.R. Sec. 2.20. Because Shah was sentenced on July 1, 1986, the Commission was required to apply its guidelines. See Tripati v. United States Parole Commission, 872 F.2d 328, 329-30 (9th Cir. 1989). It did exactly that.1  The district court did not err in denying relief.

III

The Commission's reliance on its guidelines rather than the Sentencing Guidelines is not patently arbitrary and bears a rational relationship to a legitimate government interest. Shah's equal protection challenge therefore fails. Cf. Vermouth v. Corrothers, 827 F.2d 599, 602 (9th Cir. 1987) (no merit to equal protection challenge to change in Commission guidelines whereby similarly situated persons treated differently).

IV

Shah's brief on appeal also argues the Commission's actions denied him due process. He did not, however, present this issue below. We therefore do not address it on appeal. See Bolker v. Commissioner, 760 F.2d 1039, 1042 (9th Cir. 1985).

AFFIRMED.

 *

The panel finds this case appropriate for submission without oral argument pursuant to Ninth Circuit Rule 34-4 and Fed. R. App. P. 34(a)

 **

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

Moreover, even if the Commission is required to follow the Sentencing Guidelines, these guidelines would not apply to Shah. Despite his protestations to the contrary, the Act became effective on November 1, 1987. See United States v. Rewald, 835 F.2d 215, 216 (9thCir. 1988); Pub. L. 98-473, 98 Stat. 2031 (1984). The Sentencing Guidelines do not apply to conduct that occurred before that date. See Rewald, 835 F.2d at 216