severity ratings DiNapoli's final offense severity rating should be "Greatest II."
In his report, the Magistrate concludes that the Parole Commission erred in considering DiNapoli's income tax evasion and extortion offenses in computing DiNapoli's offense severity rating. In reaching that conclusion, the Magistrate follows this Court's decision in Silberberg v. United States Parole Commission, 483 F. Supp. 1280 (M.D. Pa. 1980). In Silberberg, this Court concluded that based upon the expiration of the petitioner's sentences and upon the manner in which the Parole Commission's regulations treated those sentences, expired sentences could only be utilized to determine risk of further anti-social behavior (salient factor score) and not to determine the severity of an individual's offense.
On October 13, 1972, DiNapoli pled guilty in the United States District Court for the Southern District of New York to one count of conspiracy to make extortionate extensions of credit. On January 4, 1973, DiNapoli was sentenced to a three-year term of imprisonment on his conviction. On that same date, January 4, 1973, DiNapoli pled guilty to one count of income tax evasion. DiNapoli was sentenced to a one-year concurrent term of imprisonment for that offense. On March 13, 1974, DiNapoli was found guilty in the United States District Court for the Southern District of New York of one count of conspiracy to violate federal narcotics laws and one count of distribution and possession with intent to distribute heroin. On May 7, 1974, DiNapoli was sentenced to a 15-year term of imprisonment on the conspiracy conviction and a five-year term of imprisonment on the distribution of heroin conviction. The sentencing judge ordered that this aggregated 20-year term run concurrently with the sentences that DiNapoli was serving for tax evasion and extortion conspiracy. Nardoza Affidavit at pp. 1-2. On February 7, 1980, DiNapoli was afforded his first substantive initial parole hearing at the United States Penitentiary at Lewisburg, Pennsylvania.
There is no doubt that by the time of DiNapoli's initial parole hearing, both the tax evasion and extortion conspiracy convictions had expired. Indeed, both had expired more than four years earlier, by January 3, 1976. Thus, applying the rule of Silberberg that "once a prisoner has served his term of incarceration, the Commission may not consider that crime in determining offense severity for another crime," 483 F. Supp. at 1283, the Parole Commission erred in considering DiNapoli's tax evasion and extortion conspiracy convictions and determining that DiNapoli's offense severity rating was "Greatest II".
It is the position of the Respondents that the rule of Silberberg should not be applied in this case. The respondents argue that (1) DiNapoli's case is factually distinguishable from Silberberg; (2) there are sound reasons based on parole statutory framework for considering all of DiNapoli's offenses; (3) there are serious problems raised particularly with respect to this case in applying the Silberberg doctrine; and (4) the Parole Commission's regulations permit all of Silberberg's offenses to be considered in determining his offense severity rating.
The Respondents' attempt factually to distinguish Silberberg from this case is unpersuasive. The Respondents first claim that DiNapoli's situation is different from that in Silberberg because all of DiNapoli's offenses occurred contemporaneously while the offenses in Silberberg were not contemporaneous. Second, the Respondents claim that, unlike the case in Silberberg, DiNapoli did not receive an initial parole hearing prior to the expiration of the earlier offenses. The Respondents have not demonstrated that the fact that DiNapoli's offenses may have been "contemporaneous" justifies distinction from Silberberg. Furthermore, DiNapoli was found guilty of the extortion conspiracy offense in October 1972 and of the tax evasion offense in January 1973, while DiNapoli was found guilty of the drug conspiracy and drug distribution offenses in March 1974. Certainly, while DiNapoli's acts may have been contemporaneous, the convictions were not contemporaneous. In addition, any distinction based upon the fact that in Silberberg, the petitioner received an initial parole hearing on a sentence which later expired while DiNapoli did not receive such an initial parole hearing on any of the sentences until after the earlier sentences expired is frivolous. The failure of the Parole Commission to give DiNapoli a parole hearing prior to December of 1979 may well be its own fault. Indeed, when DiNapoli's tax evasion conviction expired on January 3, 1974, DiNapoli might have been entitled to an initial parole hearing. The failure of the Parole Commission to give DiNapoli such a hearing at that time appears to have been an "oversight" on the part of the Parole Commission. Exhibit B to DiNapoli's Reply Brief of February 25, 1982. The Respondents cannot now rely on their own omission to distinguish Silberberg.
The Respondents further argue that since all of DiNapoli's offenses are treated as one for release purposes, e.g. McCray vs. United States Board of Parole, 542 F.2d 558 (10th Cir. 1976); 18 U.S.C. § 4205(a) ("Whenever confined and serving a definite term or terms of more than one year, a prisoner shall be eligible for release on parole after serving one-third of such term or terms...."), all of the circumstances of DiNapoli's offenses must be considered by the Parole Commission in determining whether release on parole is appropriate. E.g. United States ex rel. Goldberg vs. Warden, 622 F.2d 60 (3d Cir.), cert. denied, 449 U.S. 871, 101 S. Ct. 210, 66 L. Ed. 2d 91 (1980).This proposed distinction from Silberberg disregards the recognition by this Court in Silberberg that all prior offenses may be considered by the Parole Commission at least in determining the salient factor score. In Silberberg, this Court was concerned with the Parole Commission's practice of penalizing a parole applicant twice for his prior convictions: once in determining the salient factor score and a second time in determining the offense severity rating. Applying then existing Parole Commission guidelines, the Court determined that only "the salient factor score provides for the consideration of past convictions" 483 F. Supp. at 1282. See also McCrimmon vs. United States Parole Commission, No. 78-456 slip op. (M.D. Pa. February 27, 1979).
The Respondents apparently recognize that if they follow the rule of Silberberg and apply their own regulations (e.g. 28 C.F.R. § 2.20), DiNapoli may have to be released. The only offenses for which DiNapoli is presently incarcerated are his drug-related conspiracy and distribution of heroin offenses. As previously stated, the offense severity for those offenses is "Greatest I." Depending on the offender's salient factor score, the offender would have to be released after between 40 months (minimum for "very good" salient factor score) and 100 months (maximum for "poor" salient factor score). In computing DiNapoli's salient factor score, Items "A" and "B" relate to prior convictions and commitments. Even if DiNapoli received scores of "zero" on both items "A" and "B", DiNapoli's salient factor score would be in the "good" range. Thus, pursuant to the regulations, DiNapoli's guidelines would dictate his release after between 52 and 64 months of incarceration. 28 C.F.R. § 2.20. At the time DiNapoli's petition for a writ of habeas corpus was filed, he had been incarcerated approximately 100 months and DiNapoli has now served in excess of 113 months.
Recognizing that the applicable regulations would require DiNapoli's release pursuant to the rule of Silberberg, the Respondents finally argue that the Parole Commission's regulations have been amended to modify this Court's holding in Silberberg. In particular, the Parole Commission has submitted the Affidavit of Steve D. Johnston and the Parole Commission's amended regulations, found at 45 Fed. Reg. 44924-44925 (July 2, 1980). The Parole Commission's new regulations adopt the positions set forth in the cases of Walker vs. Taylor, 338 F.2d 945 (10th Cir. 1964) and Smaldone vs. United States, 458 F. Supp. 1000 (D. Kan. 1978). See 45 Fed. Reg. 44925. Under the Parole Commission's new regulations, an offender's prior offenses for which he is currently confined will be considered only in computing the offense severity rating and not the salient factor score. The regulations state as to sentence aggregation:
When multiple sentences are aggregated by the Bureau of Prisons pursuant to 18 U.S.C. §§ 4161 and 4205, such sentences are treated as a single aggregate sentence for the purpose of every action taken by the [Parole Commission] pursuant to its rules, and the prisoner has a single parole eligibility date as determined by the Bureau of Prisons.
Most important is the addition of "General Note E" which states
In cases where multiple sentences have been imposed (whether consecutive or concurrent and whether aggregated or not) an offense severity rating shall be established to reflect the overall severity of the underlying criminal behavior. This rating shall apply whether or not any of the component sentences has expired.
The effective date of these new regulations for the Parole Commission is August 1, 1980.
The Court notes that its opinion in Silberberg which rejected the rationale of Walker, 338 F.2d 945 and Smaldone, 458 F. Supp. 1000 was dated February 4, 1980 prior to the effective date of the new Parole Commission regulations. In addition, DiNapoli's incarceration began on January 4, 1973. Further, DiNapoli's parole application was first considered by the Parole Commission on December 12, 1979 and DiNapoli received his first full parole hearing in February 1980. Finally, all of the criminal activity in which DiNapoli was engaged took place prior to 1974. All of these events quite obviously took place before the effective date of the Parole Commission's revised regulations.
Due deference must be given to the Parole Commission's regulations, Red Line Broadcasting Co., Inc. vs. Federal Communications Commission, et al., 395 U.S. 367, 23 L. Ed. 2d 371, 89 S. Ct. 1794 (1969), and an agency's interpretation of its own regulations will be upheld absent compelling indications that it is wrong, Lucas Coal Company vs. Interior Board of Mine Operations Appeals, 522 F.2d 581 (3d Cir. 1975). Nonetheless, it is the view of this Court that today to apply the Parole Commission's revised regulations interpreting 28 C.F.R. § 2.20 would constitute a violation of the ex post facto clause.
The correct focus of an ex post facto analysis is an examination of the law in effect at the time the criminal offense is committed. Weaver vs. Graham, 450 U.S. 24, 101 S. Ct. 960, 964-68, 67 L. Ed. 2d 17 (1981); Dobbert vs. Florida, 432 U.S. 282, 292, 97 S. Ct. 2290, 2297, 53 L. Ed. 2d 344 (1977). In Weaver, the Court noted
Two critical elements must be present for a criminal or penal law to be ex post facto: It must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it.... The critical question is whether the law changes the legal consequences of acts completed before its effective date. 101 S. Ct. at 964-65.