of Action. It rejected Schmidt's affidavit as not credible.
Paris argues that the Commission acted in an arbitrary and capricious manner because it did not explain why it rejected as not credible Schmidt's statement.
The role of a reviewing court is to determine whether the Commission abused its broad discretion by inquiring as to whether there is a rational basis on the record for the Commission's conclusion. Zannino vs. Arnold, 531 F.2d 687, 691 (3d Cir. 1976). In ascertaining the facts it is entirely appropriate for the Commission to consider pre-sentence investigation reports. 18 U.S.C. § 4207(3); Campbell v. United States Parole Commission, 704 F.2d 106, 109 (3d Cir. 1983). Additionally, it may assess the credibility of the information presented to it. See Williams vs. United States Parole Commission, 617 F. Supp. 470, 476 (M.D. Pa. 1985); See also 28 C.F.R. § 2.19(c) (Commission shall resolve disputes with respect to information presented by a preponderance of the evidence standard.)
It is our view that it was not irrational for the Parole Commission to conclude that Paris conspired to manufacture more than 200,000 doses of amphetamines or methamphetamines and to reject Paris's version as supported by Schmidt's affidavit as not credible. First, Schmidt's post-trial affidavit corroborates the information contained in the pre-sentence report that Paris and Schmidt discussed manufacturing eight pounds of amphetamines or methamphetamines. Second, on the basis of the evidence before it, it was reasonable for the Commission to find that the plan to manufacture amphetamines was not abandoned, but was aborted because of the intervening arrest. (Schmidt and Paris were arrested five days after Schmidt told the informant of their intent to manufacture eight pounds of amphetamines or methamphetamines.) Third, the pre-sentence investigation reports which were before the Commission and were submitted for our in camera review reveal that Paris has a long history of drug-related offenses, including convictions for manufacturing and attempting to manufacture methamphetamines dating back to 1975. We shall deny Paris's petition for habeas corpus relief on the ground that the Parole Commission impermissibly rated the severity of his offense as "category 6".
2. Disparate Treatment of Paris's Co-Defendants.
Paris objects to the Magistrate's finding that the disparity between the offense severity rating assigned to Paris and that assigned to his co-defendant, Schmidt, does not warrant habeas corpus relief. The Magistrate was correct in stating that Paris is not entitled to be treated in the same manner as his co-defendant. Lynch vs. United States Parole Commission, 768 F.2d 491 (2d Cir. 1985). Paris provides no authority for his contention that co-defendants should be similarly treated. The Commission concedes that it erred in setting Schmidt's offense severity rating at 5 rather than 6, but states that it is not required to compound the error by similarly erroneously rating Paris's offense severity. We agree. We shall not grant Paris's habeas corpus petition on the ground that his co-defendant was assigned a different offense severity rating.
3. Applicability of Section 235(b)(3) of the Sentencing Reform Act.
The Respondent objects to the recommendation of the Magistrate that it be required to recompute the presumptive parole date for Paris within the applicable guideline range pursuant to § 235(b) (3) of the Sentencing Reform Act, Pub.L. 98-473, 1984 U.S. Code Cong. & Ad. News (98 Stat. 1987, 2032), reprinted in the historical note of 18 U.S.C. § 3551.
The major change created by the Sentencing Reform Act is to replace indeterminate sentences and parole with determinate sentences and no parole. Congress recognized that a transition period was necessary for individuals sentenced under pre-existing law. Section 235(b)(1)(A) of Public Law 98-473 provides that the Parole Commission shall remain in effect for five years after the effective date of the Sentencing Reform Act for an individual convicted of an offense before the effective date of the Act and Section 235(b)(3) directs the Commission to set their release dates during the five year transition period.
Specifically, § 235(b)(3) of the Sentencing Reform Act provides that:
The United States Parole Commission shall set a release date, for an individual who will be in its jurisdiction the day before the expiration of five years after the effective date of this Act, that is within the range that applies to the prisoner under the applicable parole guideline. A release date set pursuant to this paragraph shall be set early enough to permit consideration of an appeal of the release date, in accordance with Parole Commission procedures, before the expiration of five years following the effective date of this Act.
Paris contends that this section requires the Parole Commission now to set a parole release date for him within his applicable guideline range because he will be within the jurisdiction of the Parole Commission the day before the expiration of five years after the effective date of the Act. The Sentencing Reform Act becomes effective on November 1, 1987, § 235(a)(1)(B)(ii) of Pub.L. 98-473 (1984), as amended by Pub.L. 99-217 (1985).
The Magistrate agreed that Paris would be within the jurisdiction of the Parole Commission on the day before five years after the effective date of the Act. He determined that "jurisdiction" has the same meaning in § 235(b)(3) as in 18 U.S.C. § 4210(b). 18 U.S.C. § 4210(b) provides in relevant part that ". . . jurisdiction of the Commission over the parolee shall terminate no later than the date of the expiration of the maximum term or terms for which he was sentenced . . . ." Having concluded that Paris would be within the "jurisdiction" of the Commission until April 18, 1995, twelve years after the start of his twelve-year sentence, the Magistrate found that the Commission's decision to continue Paris beyond his applicable guideline range violated § 235(b)(3) and recommended for that reason that this Court grant the petition for writ of habeas corpus unless within a reasonable period of time the Parole Commission recomputed Paris's presumptive parole date within the applicable guidelines.
The Respondent argues that the Magistrate erred in his broad reading of the term "jurisdiction" under § 235(b)(3). He asserts that 18 U.S.C. § 4210(b) does not define jurisdiction; it refers merely to the length of time over which the Commission retains power to supervise a parolee and to revoke parole for violations of the conditions of parole. The Respondent contends that as used in § 235(b)(3), jurisdiction refers to the Commission's power to set parole dates for individuals sentenced under pre-existing law who will still be in prison on the day before the Commission goes out of existence. We agree with the Respondent and conclude that the Magistrate's conclusion is erroneous.
Section 235(b)(3) requires the Parole Commission to ". . . set a release date . . ." for all prisoners within its "jurisdiction." Clearly no release date can be set for those individuals already on parole. Our interpretation of the meaning of the word "jurisdiction" in § 235(b)(3) is supported by the legislative history which provides in relevant part:
Most of those individuals incarcerated under the old system will be released during the 5-year period. As to those individuals who have not been released at that time, the Parole Commission must set a release date for them prior to the expiration of the five years that is consistent with the applicable parole guidelines. (emphasis supplied)