UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
decided: January 16, 1984.
ALFRED CROWELL, APPELLANT
UNITED STATES PAROLE COMMISSION, APPELLEE
On Appeal from the United States District Court for the Middle District of Pennsylvania.
Adams, Becker, and Van Dusen, Circuit Judges.
Opinion OF THE COURT
BECKER, Circuit Judge.
This case presents the question whether the application of revised parole regulations of the U.S. Parole Commission to appellant Alfred Crowell, a federal prisoner, violated his rights under the ex post facto clause of the United States Constitution. Between the time Crowell committed his crime and the time he was considered for parole, the parole regulations were revised by the Commission to require a longer period of time served in prison prior to parole. Although the increase in the parole-range guidelines would appear detrimental, there was another change in the regulations that offset any detrimental impact to Crowell. Under the 1975 regulations (which were in effect when Crowell committed his offense), a prisoner with outstanding forfeited statutory good-time was not eligible for parole, and, at all times after Crowell was statutorily eligible for parole, he had outstanding forfeited statutory good-time. The 1979 regulations (which the Commission applied in considering Crowell for parole) changed this provision to authorize the Commission to grant parole even where a prisoner has outstanding forfeited statutory good-time. Thus, Crowell was eligible for parole under the 1979 regulations but not under the 1975 regulations. Because of this fact, we hold that Crowell has failed to demonstrate detrimental impact and, therefore, that the increase in the parole-range guidelines did not, in his case, violate the ex post facto clause.
On October 1, 1976, Crowell was sentenced to serve a term of fifteen years in federal prison as the result of his convictions for various drug-related offenses occurring between July, 1974, and May, 1976.*fn1 On October 19, 1979, Crowell received his initial parole hearing. In considering his case, the Parole Commission applied the 1979 parole-range guidelines in effect on the date of the hearing rather than the 1975 guidelines that had been in effect on the date of Crowell's offense.*fn2 See 28 C.F.R. § 2.20 (1975 & 1979).
Under the 1975 guidelines, given Crowell's "offense severity rating" and "salient factor score," a suggested parole-range of twenty-six to thirty-six months would have been specified. The 1979 guidelines specified a higher parole-range of forth to fifty-two months. Under any guidelines, however, Crowell was required by statute to serve at least one-third of his sentence (sixty months on a fifteen-year sentence). At his initial parole hearing, the Commission set Crowell's presumptive parole-release date at service of ninety-one months, considerably above both the 1975 and 1979 guideline ranges, and above the statutory minimum term of imprisonment. Crowell argues that the decision to delay his parole release for so long was, at least in part, a result of the application of the more severe 1979 guidelines, and that this retrospective application violates the ex post facto clause.
Appellant's argument that retrospective application of the 1979 guidelines to his case violated the ex post facto clause is based on our decision in U.S. ex rel. Forman v. McCall, 709 F.2d 852 (3d Cir. 1983). In Forman we held that (1) the focal point of the ex post facto analysis is on the date of the offense and not the date of sentence; and (2) parole guidelines could constitute laws within the meaning of the ex post facto clause depending on whether the Parole Commission acts rigidly, or with substantial flexibility, in applying them. Id. We further stated that the mere fact that the Parole Commission went outside the ranges established by both new and old guidelines did not eliminate the ex post facto problem created by an increase in the guidelines. Instead, we concluded that if the Commission applied the guidelines mechanically so that Forman would have been paroled a set number of months below the minimum period of incarceration established by the applicable guideline range (whatever that guideline range happened to be), then Forman was retroactively disadvantaged in violation of the ex post facto clause. We remanded the case to the district court so that a record could be created on the factual issue of whether or not the parole guidelines had been applied mechanically.
There is no question that the parole regulations in existence in 1979 were retrospectively applied to Crowell and that the 1979 guidelines specified a longer period of service in prison prior to parole than the 1975 guidelines. If that was all there was to this case, we might well be constrained to remand to the district court in light of Forman for a factual determination whether the guidelines were applied mechanically in Crowell's case. The Commission contends, however, that Crowell cannot establish that he was disadvantaged by the retrospective application of the 1979 regulations.
In order to make out a violation of the ex post facto clause, two elements must be proven. The law "must be retrospective, that is, it must apply to events occurring before its enactment, and [the law] must disadvantage the offender affected by it." Weaver v. Graham, 450 U.S. 24, 29, 67 L. Ed. 2d 17, 101 S. Ct. 960 (1981) (footnotes omitted). See U.S. ex rel. Forman v. McCall, 709 F.2d 852, 857 (3rd Cir. 1983), quoting Beazell v. Ohio, 269 U.S. 167, 169-70, 70 L. Ed. 216, 46 S. Ct. 68 (1925) ("The constitutional prohibition [the ex post facto clause] and the judicial interpretation of it rest upon the notion that laws, whatever their form, which purport to make innocent acts criminal after the event, or to aggravate an offense, are harsh and oppressive, and that the criminal quality attributable to an act, either by the legal definition of the offense or by the nature or amount of the punishment imposed for its commission, should not be altered by legislative enactment, after the fact, to the disadvantage of the accused ") (emphasis added).
It is axiomatic that "we must compare the two statutory procedures in toto to determine if the new [law] may be fairly characterized as more onerous." Dobbert v. Florida, 432 U.S. 282, 294, 53 L. Ed. 2d 344, 97 S. Ct. 2290 (1977). When Crowell committed his offenses, the parole regulations (of which the parole-range guidelines are part) absolutely prohibited parole of any prisoner who had any outstanding forfeited statutory good-time. Section 2.29(a) of the regulations provided:
2.29 Withheld and forfeited good time. (a) Section 4202 of title 18 of the United States Code permits Federal prisoners to be paroled if they have observed the rules of the institution in which they are confined and if they are otherwise eligible for parole. Any forfeiture of statutory good time shall be deemed to indicate that the prisoner has violated the rules of the institution to a serious degree, and a parole will not be granted in any such case in which such forfeiture remains effective against the prisoner concerned. . . .
28 C.F.R. § 2.29(a) (1975). The record establishes that Crowell became statutorily eligible for parole on May 20, 1981, and that at all times from that date until the present he has had outstanding forfeited statutory good-time. If, therefore the Parole Commission had applied the 1975 parole regulations in determining Crowell's presumptive parole date, regulation 2.29(a) would have required that Crowell be denied parole.
In contrast, under the 1979 regulations, forfeiture of statutory good-time was only a factor to be considered by the Parole Commission in determining whether to parole a prisoner:
2.6 Withheld and forfeited good time.
While neither a forfeiture of good time nor a withholding of good time shall bar a prisoner from receiving a parole hearing, Section 4206 of Title 18 of the United States Code permits the Commission to parole only those prisoners who have substantially observed the rules of the institution.
28 C.F.R. § 2.6 (1979). Plainly then, application of the 1979 regulations was more advantageous to Crowell than application of the 1975 regulations would have been, as evidenced by the fact that the Commission has set a presumptive parole-release date for Crowell. Therefore, Crowell cannot, as a matter of law, establish detrimental impact. Absent such detrimental impact, retroactive application of the 1979 parole regulations did not constitute a violation of the ex post facto clause. Forman, 709 F.2d at 857-859.*fn3 For this reason, the judgment of the district court will be affirmed.