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PARIS v. WHALEN

August 18, 1987

William Paris, Petitioner
v.
Patrick Whalen, Superintendent, F.P.C., Allenwood, Respondent



The opinion of the court was delivered by: MUIR

 MUIR, Judge

 On October 21, 1986, William Paris, a prisoner at the Federal Prison Camp-Allenwood, located in Montgomery, Pennsylvania, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. On January 2, 1987, he filed an amended petition for writ of habeas corpus. The Clerk of Court assigned the responsibility for this case to us but referred it to United States Magistrate Raymond J. Durkin for a report and recommendation.

 Presently before us is the report of Magistrate Durkin recommending that we grant the petition for writ of habeas corpus unless, within a reasonable period of time, the commission recomputes Paris's presumptive parole date. Both the Respondent and Paris filed objections to the Magistrate's report. We have reluctantly permitted the parties numerous extensions of time within which to file documents. The petition is now ripe for our disposition.

 When objections are filed to a report of the Magistrate, we must make a de novo determination of those portions of the report or specific proposed findings or recommendations to which objections are made. We may accept, reject, or modify, in whole or in part, the findings or recommendations made by the Magistrate. 28 U.S.C. § 636(b)(1); Local Rule 904.2. We review the Magistrate's findings and recommendations to determine if they are clearly erroneous or contrary to the law. United States v. Raddatz, 447 U.S. 667, 65 L. Ed. 2d 424, 100 S. Ct. 2406 (1980). Furthermore, district courts are to be granted wide discretion as to how they treat recommendations of a Magistrate. Id. Before we address the objections raised by the parties some factual background is necessary.

 On August 22, 1983, Paris was found guilty by jury of conspiracy to distribute a quantity of amphetamine in violation of 21 U.S.C. § 846; possession of a controlled substance in violation of 21 U.S.C. § 844(a); unlawful possession of a firearm by a convicted felon in violation of 18 U.S.C. § 1202(a)(1) and § 922(h)(1) in the United States District Court for the Eastern District of Pennsylvania. On October 11, 1983, Paris was sentenced to a 12-year term of imprisonment.

 On October 1, 1985, Paris was provided an initial parole hearing. The hearing examiner panel recommended rating the severity of Paris' offense as a "category 6". It assessed his salient factor score as 6 out of a possible score of 10, 10 representing the lowest risk of parole violation. The parole guidelines for a prisoner with a salient factor score of 6 and a category 6 offense severity rating indicate a term of incarceration of 52 to 64 months. 28 C.F.R. § 2.20. Nevertheless, because of his continued pattern of criminality the panel recommended continuing Paris to a presumptive date above the guideline range of April 17, 1989, after 72 months of incarceration.

 The Regional Commissioner agreed with the recommendation of the examiner panel and by notice of action dated October 21, 1985, continued Paris to a presumptive parole date April 17, 1989.

 Paris appealed to the National Appeals Board of the Commission and on February 11, 1986, it affirmed the decision of the Regional Commissioner. Paris subsequently filed the petition for writ of habeas corpus now before us.

 Paris objects to Magistrate Durkin's finding that (1) the Commission properly set his offense severity rating at "category 6" and (2) the disparity between the offense severity rating assigned to Paris and that assigned to his co-defendant was not unwarranted. The Respondent objects to Magistrate Durkin's finding that the Commission's decision to continue Paris beyond his applicable guideline range violated § 235(b)(3) of the Sentencing Reform Act, Pub.L. 98-473, 1984 U.S. Code Cong. & Ad. News (98 Stat. 1987, 2032), and his recommendation that Paris's petition for writ of habeas corpus be granted unless the Parole Commission recomputes the presumptive parole date for Paris within his applicable guideline range. We shall address each of these objections seriatim.

 1. Offense Severity Rating.

 The Commission found that Paris was involved in a conspiracy to manufacture more than 200,000 doses of amphetamines; therefore, it rated his offense severity as "category 6" pursuant to 29 C.F.R. § 2.20. In making its finding, the Commission relied upon the following statement contained in the pre-sentence investigation report prepared in the Eastern District of Pennsylvania:

 
On April 13, 1983, the confidential informant met with Schmidt [Paris's co-defendant] who advised that he wanted a place to cook eight pounds of amphetamines or methamphetamine by Friday, October 15, 1983. Schmidt gave the informant Paris's telephone number and told ...

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