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Zannino v. Arnold

decided: February 19, 1976.

ZANNINO, ILARIO
v.
ARNOLD, FLOYD E., WARDEN, U.S. PEN., SIGLER, MAURICE H., CHAIRMAN, U.S. BOARD OF PAROLE, UNITED STATES OF AMERICA, APPELLANT (D.C. CIVIL NO. 75-414)



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA.

Van Dusen, Adams and Weis, Circuit Judges.

Author: Van Dusen

VAN DUSEN, Circuit Judge.

As of April 7, 1975, when the petition for a writ of habeas corpus now before the court was filed, petitioner, Ilario Zannino, had been confined for approximately 34 months and was then incarcerated in the U.S. Penitentiary at Lewisburg, Pa., where he was serving a six-year sentence*fn1 for transporting goods in interstate commerce, knowing the same to have been stolen, in violation of 18 U.S.C. ยงยง 2 and 2314.*fn2 The district court granted the petition for a writ of habeas corpus. We reverse.

After a parole hearing on August 12, 1974, an en banc Parole Board order of October 8, 1974, denied the application and ordered that Zannino's sentence be continued to expiration. The reasons given for this disposition included this language:

"After careful consideration of all relevant factors and information presented, it is found that a decision outside the guidelines at this consideration appears warranted because of the magnitude of the offense and information received from the Justice Department regarding your involvement in organized crime."*fn3

An appeal review hearing by the entire Board was held on January 14, 1975, at which petitioner appeared through his counsel. On January 20, 1975, the Board reaffirmed its previous disposition, stating its reasons as follows (5a):

"Your offense behavior has been rated as very high severity. You have a salient factor score of 9. You have been in custody a total of 31 months. Guidelines established by the Board for adult cases which consider the above factors indicate a range of 26-36 months to be served before release for cases with good institutional program performance and adjustment. After careful consideration of all relevant factors and information presented, it is found that a decision outside the guidelines at this consideration appears warranged [sic]. There is not a reasonable probability that you would live and remain at liberty without violating the law."*fn4

Zannino filed the instant petition for a writ of habeas corpus*fn5 on April 7, 1975, alleging that:

"The United States Board of Parole has determined, arbitrarily and capriciously, without supporting evidence and in violation of petitioner's rights to due process of law and the equal protection of the laws, that petitioner is not entitled to be considered for parole within the published guidelines of the Board and is not entitled to parole at any time."*fn6

The Parole Board reopened Zannino's case sua sponte on May 6, 1975. On June 19, 1975, a new order was entered, again continuing Zannino's case to the expiration of his sentence, as explained in the following affidavit filed by the Parole Board:

"On May 6, 1975, it was brought to the attention of the Regional Director that adequate reasons had not been stated in the January 20, 1975, Order, for the continuance outside of the guidelines. The case was therefore reopened on that date and referred to the National Appellate Board for a new decision pursuant to 28 C.F.R. Section 2.28. On June 19, 1975, an order was entered again continuing Mr. Zannino's case to the expiration of his sentence. The reasons given for the departure from the guideline range indicated were as follows:

'The offense was part of a large scale organized criminal conspiracy or ongoing criminal enterprise. An unusually sophisticated or professional manner was evident in planning or commission of the offense.'

"Thus, it was concluded by the Board that Mr. Zannino's offense behavior was more serious than the statute violated or actual dollar value involved would indicate. Mr. Zannino's ...


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