APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
Before: ALDISERT, SLOVITER and ROSENN, Circuit Judges
May the United States Parole Commission (Commission) consider, as an aggravating factor justifying a decision above the parole guidelines, a murder committed by the prisoner's two confederates which preceded a bank robbery in which all three participated? The district court disapproved of the parole decision made on that basis, and directed the Commission to hold a new parole hearing at which the murder could not be used as a reason for continuing the prisoner's custody. The Commission appeals and we reverse.
In October 1972, following Willis Campbell's release on parole on August 4, 1972 from a six year sentence for burglary and grand larceny imposed in the District of Columbia Superior Court, he and two confederates arrived in Virginia Beach, Virginia for the purpose of robbing a bank. Lacking transportation, they hailed a taxicab, abducted the driver, and drove to a secluded area. While Campbell remained in the cab, his confederates removed the cab driver from the taxi, took him into a wooded area, and shot and killed him. Campbell asserts that he had no knowledge that a murder would ensue, and has consistently disclaimed participation in or responsibility for the murder. After the other two returned to the taxi, the three proceeded to rob the bank, and shortly thereafter were arrested.
In January 1973, Campbell pleaded guilty to one count of bank robbery in the United States District Court for the Eastern District of Virginia, and was sentenced to 18 years imprisonment. He was also charged in Virginia state court with murder and abduction of the cab driver, and robbery of the bank customers. The murder charge was dismissed on motion of the prosecution. Campbell was convicted on the charge of abduction, for which he received a 20 year sentence, and on the charge of robbery of a bank customer, for which he received a 25 year sentence, both of which were to run concurrently with each other and with the federal sentence. Campbell's co-defendants were convicted in the state court on all three charges, including murder, and were sentenced to life imprisonment.
In August 1978, after Campbell had served 69 months of his federal sentence, he received his initial parole hearing at the penitentiary in Lewisburg, Pennsylvania in which he then was incarcerated. A divided panel determined not to set a parole date at that time, but to continue him for a four year reconsideration hearing in August 1982, the most severe decision available to the Commission at that time. The Notice of Action provided to Campbell explained the Commission's decision as follows:
Your offense behavior has been rated as very high severity. You have a salient factor score of 2. You have been in custody a total of 69 months. Guidelines established by the Commission for adult cases which consider the above factors indicate a range of 60-72 months to be served before release for cases with good institutional program performance and adjustment. After review of all relevant factors and information presented, a decision above the guidelines at this consideration appears warranted because prior incarceration and community supervision did not deter you from involvement in your serious instant offense behavior which involved a murder. As required by alw [sic], you have also been scheduled for a statutory interim hearing during August, 1980.
Campbells' statutory interim hearing was held in August 1980. The two hearing examiners disagreed. Examiner VanWalraven recommended that Campbell be paroled after serving 100 months; Examiner Alex recommended that he be denied parole and continued until the expiration of his term. Examiner VanWalraven noted that Campbell's presentence report did not mention the cab driver's murder, that Campbell still faced a substantial period of time on the Virginia sentence, and that parole after 100 months would be 28 months above the guidelines and "appears to be the appropriate amount of time for accountability and his role in the instant offense." Examiner Alex, on the other hand, stated it was "immaterial that the file does not contain information to the effect that the cab driver in the subject's offense was shot and killed, inasmuch as he himself admits that this took place"; that "the total offense behavior clearly involved a cold blooded murder" and that Campbell was admittedly on the scene; that Virginia might not require him to serve much additional time; and that because Campbell's salient factor score was only 2 and he had "what actually amounts to a Greatest II offense severity situation", he should be continued until expiration of his term "even in view of his relatively good prior record." Since the two hearing examiners were divided, the Administrative Hearing Examiner cast the deciding vote, agreeing with Examiner Alex. See 28 C.F.R.§ 2.23(c) (1982).
The Notice of Action informed Campbell of the Commission's decision to continue him in prison until expiration of his term. It explained the decision as follows:
Your offense behavior has been rated as very high severity because it has previously been rated in this category, despite it being a bank robbery involving a murder. You have a salient factor score of 2. You have been in custody a total of 94 months. Guidelines established by the Commission for adult cases which consider the above factors indicate a range of 60-72 months to be served before release for cases with good institutional program performance and adjustment. After review of all relevant factors and information presented, a decision above the guidelines appears warranted because your offense behavior involved the following aggravating factors: the cab driver was taken into the woods and shot to death.
(emphasis added). This decision was affirmed on administrative appeal.
After exhausting his administrative remedies, Campbell filed this habeas corpus petition under 28 U.S.C. § 2241 in the United States District Court for the Middle District of Pennsylvania alleging, inter alia, that the Commission abused its discretion by determining that he was involved in a murder when the facts did not support such a determination. The district court agreed, holding: "The record before the Parole Commission was devoid of any factual basis for examiner Alexconclusion that Campbell's total offense behavior involved a cold blooded murder, or for the Commission's decision that the cab driver's death was an aggravating factor justifying a parole decision six years above the guidelines." The court commented that "[s]ome decision above the guidelines may have been warranted in this case" in view of "the short period between ...