compel the National Appeals Board to render a decision on his appeal. Inasmuch as the National Appeals Board reached its decision on January 17, 1980, four days before he filed this action, Petri's request for an order in the nature of mandamus will be denied as moot.
Initially, Petri argued that the Commission's decision to rate his offense as Greatest I was improper because Petri alleged he was not convicted of a property offense involving more than $ 500,000. Petri argued that the Commission could only consider the $ 75,000 involved in the section 1014 conviction. In his exceptions to the Magistrate's report, however, Petri appears to have abandoned this theory and instead argues that the application of the parole guidelines to his case is unconstitutional.
Petri's decision to forego reliance on his initial argument was a good one in view of the fact that it is without merit. As the Court of Appeals opinion affirming his conviction makes clear, Petri was convicted of conspiring to, misapplication of and assistance in the misapplication of over a million dollars of funds of the Chemical Bank of New York. Note 1 accompanying the guidelines at 28 C.F.R. § 2.20 (1979) provides that a conviction for conspiracy in which the substantive offense was consummated shall be treated as if the Defendant committed the substantive offense. In addition, the Court of Appeals opinion recites that it was Petri who borrowed in excess of $ 1,300,000 from Chemical Bank through a number of worthless corporations owned by a "mini-conglomerate" controlled by Petri. It was from these transactions that Chemical ultimately lost over $ 1,100,000. United States v. Hockridge, 573 F.2d 752, (754-55) (2d Cir.), cert. denied, sub nom., Petri v. United States, 439 U.S. 821, 99 S. Ct. 85, 58 L. Ed. 2d 112 (1978). Petri has never denied these contentions and it is the Court's conclusion that the Parole Commission was justified in relying on these facts, as well as the pre-sentence report which contained substantially the same information, in placing Petri's offense behavior in the Greatest I range.
Petri's argument that the guidelines at 28 C.F.R. § 2.20 (1979) cannot be constitutionally applied to him is unpersuasive. Petri argues that it is unconstitutional for the Parole Commission to place his offense severity in the Greatest I range merely because of the dollar amount involved. He argues that it is arbitrary to apply the same parole guidelines to his offense which are applied to aggravated felonies, arson, kidnapping, and certain homicides. It is the Court's view that the guidelines at 28 C.F.R. § 2.20 (1979) are a reasonable exercise of the Commission's duty to promulgate rules and regulations to establish guidelines for parole as required by 18 U.S.C. § 4203(b). In addition, as the guidelines themselves make clear at 28 C.F.R. § 2.20(c), decisions outside the guidelines may be rendered "(w)here the circumstances warrant." The summary of Petri's parole hearing and the Commission's August 20, 1979 notice of action indicate that the Commission considered a number of factors besides the dollar amount involved in Petri's offense in reaching its decision. That decision has a rational basis and will not be disturbed by this Court. See Zannino v. Arnold, 531 F.2d 687, 691 (3d Cir. 1976).
Several other points deserve mention. Petri alleges in a general way that the pre-sentence report contains inaccurate information. The Commission was entitled to rely on the pre-sentence report in reaching its decision. 18 U.S.C. § 4207(3); Billiteri v. United States Board of Parole, 541 F.2d 938, 945 (2d Cir. 1976); Foddrell v. Sigler, 418 F. Supp. 324, 326 (M.D. Pa.1976). If Petri still maintains that the pre-sentence report contains inaccurate information he should seek a correction of the report from the sentencing court. See F.R.Crim.P. 32(c) Thompson v. United States Parole Commission, Civil No. 78-778 (M.D.Pa. January 25, 1979). Petri's vague allegations of inaccuracies in which he does not dispute the salient facts in his case do not warrant any action by this Court.
Petri also argues that the Commission did not give adequate weight to the sentencing judge's decision to make Petri eligible for parole on May 1, 1979. The hearing summary makes clear that the Commission considered that fact in arriving at its decision. It was for the Commission to determine what weight that fact should be given. Eligibility for parole does not mean that a prisoner will be granted parole. Having considered the fact that the sentencing judge made Petri eligible for parole, the Commission was nonetheless free to determine that Petri's release on parole was not appropriate.
Since it appears that Petri was given meaningful parole consideration and that the Commission's decision to deny him parole was not arbitrary or capricious, the Court, on the basis of the Magistrate's report and a de novo review of the record, will deny Petri's petition for writ of habeas corpus.
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