Unpublished Disposition, 894 F.2d 409 (9th Cir. 1990)

Steven D. BRANAM, Petitioner-Appellant,v.UNITED STATES PAROLE COMMISSION, Respondent-Appellee.

No. 88-6346.

United States Court of Appeals, Ninth Circuit.

Submitted Oct. 31, 1989.^* Decided Jan. 19, 1990.

Before HUG and CANBY, Circuit Judges, and DAVID A. EZRA,^**  District Judge.

MEMORANDUM^*** 

Pro se appellant, Steven Branam, appeals the district court's dismissal of his petition for writ of habeas corpus. Branam contends that the United States Parole Commission violated his due process rights when it failed to follow the parole guidelines. Branam also contends that the Parole Commission has deviated from the parole guidelines without showing "good cause." We find that the Parole Commission deviated from its guidelines without "good cause" and therefore do not address the constitutional issue.

DISCUSSION

This court reviews de novo the district court's denial of a habeas corpus petition. Reiger v. Christensen, 789 F.2d 1425, 1427 (9th Cir. 1986). However, the court's review of Parole Commission decisions is limited. The court lacks jurisdiction to entertain claims that the Parole Commission has abused its discretion in making decisions that involve "the exercise of judgment among a range of possible choices or options." Wallace v. Christensen, 802 F.2d 1539, 1552 (9th Cir. 1986) (en banc). The court has jurisdiction, however, to consider a claim that the Parole Commission has violated the Constitution, or rendered a decision outside the Guidelines and hence must show good cause. Id. Branam argues both these bases. We therefore have jurisdiction to decide Branam's appeal.

The crux of Branam's appeal revolves around a provision found in 28 C.F.R. Sec. 2.20 at the time of the parole decision:

Where state offense [s] are sufficiently related to the federal offense in time or nature to be considered as part of the same episode, course, or spree of criminal conduct (e.g., during a three-month period an offender robs two federal banks, one state bank, and one grocery store), such conduct shall be considered as an aggravating factor by being graded on the severity scale as if part of the current federal offense behavior. Any time spent in custody on the state offense [s] shall be credited for guideline purposes.

(Emphasis added.)

Branam contends that the Parole Commission failed to give him credit pursuant to this provision for time served in Florida State Prison for charges of bank robbery, grand theft and aggravated assault, all of which arose out of the robbery of the Royal Trust Bank. Branam claims that the Parole Commission acted outside this provision when it determined his parole and has failed to show "good cause" for doing so. We agree.

A brief recapitulation of the pertinent events is as follows:

7/21/81: Robbed Barnett Bank

9/2/81: Robbed Royal Trust Bank Arrested by State authorities and charged

with robbery, grand theft, and aggravated assault

12/1/81: Burglarized home

1/28/82: Convicted and sentenced in Florida State Court for robbery, grand

theft and aggravated assault; 20 year aggregate sentence (Royal

Trust Bank)

4/15/82: Convicted and sentenced in Federal Court for robbery; 15 year

sentence (Barnett Bank)

4/19/82: Pled guilty in state court to burglary; 5 year sentence to run

consecutive to the state sentences already imposed, but concurrent

to the federal sentence

5/4/82: Received into federal custody.

The Government indicates that Branam spent eight months in state custody prior to being received in federal custody. Branam contends he is entitled to credit for this eight-month period.

Branam maintains that the robbery of the Barnett Bank and the robbery of the Royal Trust Bank occurred within six weeks of each other and therefore, under the guidelines, are to be considered a part of the "same episode, course or spree of criminal conduct." Although he was also convicted of aggravated assault for conduct in the course of robbing the Royal Trust Bank and grand theft for use of the automobile during that escape, it is clear these charges all relate to the Royal Trust Bank robbery.

Branam does not contend that the burglary was a part of the same criminal spree. The sentence imposed on the burglary conviction ran consecutive to his convictions arising out of the Royal Trust Bank robbery. Branam had not yet started serving his sentence on the burglary conviction at the time of his transfer to federal custody. Thus, the time in state custody was all a result of the Royal Trust Bank robbery episode.

The two bank robberies occurred within three months of each other, and thus under section 2.20 they should be considered as part of the same "episode, course, or spree." Applying the guideline, the charges resulting from the Royal Trust Bank robbery "Shall be considered as an aggravating factor by being graded in the severity scale as if part of the current federal offense behavior," and " [a]ny time spent in custody on the state offense [s] shall be credited for guideline purposes." (Emphasis added.)

Under the guidelines, Branam is entitled to credit for the time served in state custody on the charges arising from the Royal Trust Bank robbery. The Parole Commission has shown no good cause for deviating from the guidelines.

The Government first asserts that the Parole Commission's decision was discretionary and that this court therefore has no jurisdiction to review its determination of Branam's parole. We disagree. The guideline at issue was not discretionary. Rather, the use of the word "shall" in the provision indicates that the Parole Commission's failure to adhere to the provision "involve [d] a plain violation of a matter which does not admit of discretion and choice." Wallace, 802 F.2d at 1552. The Government next asserts that the Parole Commission did not give Branam credit for state time served for robbery, grand theft and aggravated assault because the Parole Commission only considered the state robbery conviction, not the related offenses in determining Branam's parole. These related offenses, however, arose from the Royal Trust Bank robbery and were clearly part of the same criminal episode. Therefore, under section 2.20, the Parole Commission should have considered these convictions when determining Branam's parole.

The judgment is reversed and remanded with instructions to the district court to order the Parole Commission to redetermine Branam's parole eligibility and to give Branam credit for the state time served.

REVERSED and REMANDED.