On Appeal From the United States District Court for the Middle District of Pennsylvania, D.C. Civil No. 85-0860.
Sloviter, Becker and Garth, Circuit Judges. Garth, J., concurring and dissenting.
This is an appeal by the United States Parole Commission from a grant of a writ of habeas corpus to a federal prisoner whose parole release guidelines were found by the district court to have been improperly determined.*fn1 The district court granted the writ after two successive remands to the Commission -- the first for further explanation of the Commission's decision, and the second for recategorization of the severity of petitioner's offense after the court found the further explanation inadequate. Although the Commission complied with the second remand order, the court nevertheless granted the writ because the court found the Commission's decisions to add six months to petitioner's term of incarceration for two disciplinary infractions and to deny parole until he had served the maximum permissible term under the Commission's guidelines to be arbitrary and irrational.
Because we find that the Commission failed entirely to provide any useful explanation at the administrative level for its initial decision to attribute more than one kilogram of cocaine to petitioner, even after specific directives from the district court, we affirm the district court's remand to the Commission ordering it to attribute less than one kilogram to petitioner. In so doing, we reject the Commission's arguments that a court cannot demand more than a bare, conclusory, statement of reasons from the Commission, and that the Commission's reasoning in this case was evident from the record.
We also find the Commission's delayed decision to penalize petitioner for his first disciplinary infraction to raise an inference of unconstitutional retaliation. The infraction was on his record, but ignored by the Commission at petitioner's initial parole hearing. The Commission did not decide to impose a penalty for this infraction, delaying petitioner's release by two months, until after the district court had ordered the Commission to assign petitioner an earlier release date based on a more reasonable attribution of cocaine. Nevertheless, we reverse the order granting the writ, because we find the Commission's decisions to penalize petitioner for his second institutional infraction, and to assign petitioner the latest permissible release date under the guidelines, to have ample support in the record.
I. FACTS AND PROCEDURAL HISTORY
Petitioner Douglas Marshall pleaded guilty on June 20, 1983, in the United States District Court for the District of Columbia to one count of conspiracy to distribute cocaine. While on bond pending sentencing, Marshall was rearrested for further involvement with cocaine, and pleaded guilty to one count of simple possession. He was subsequently sentenced to six years' imprisonment on the first count, and a 30-day prison term, to run consecutive to the first term, on the second count. Marshall was incarcerated at the Allenwood, Pennsylvania, Federal Prison Camp.
In October 1984, Marshall received his initial parole hearing, following which the Parole Commission determined that Marshall's offense involved more than one kilogram and less than five kilograms of pure cocaine, and thus assigned Marshall an offense severity rating of Category 6.*fn2 See U.S. Parole Commission Offense Behavior Severity Index 921(d), 28 C.F.R. § 2.20 (1985) [ hereinafter Offense Severity Index]. The Commission also assessed Marshall to be a "very good" parole risk, giving him a salient factor score of 9, see 28 C.F.R. § 2.20 (1987) (Salient Factor Scoring Manual). Given these ratings, the Commission's guidelines called for granting parole after 40-52 months of imprisonment. 28 C.F.R. § 2.20 (1987) ("Guidelines for Decisionmaking" table). The Commission decided to continue Marshall's imprisonment to the expiration of his term, which the Commission stated to be approximately forty-eight months.*fn3
The Commission's determination that Marshall's offense involved more than one kilogram of cocaine was based on a series of inferences drawn from facts set forth primarily in the presentence investigation report and transcripts of Marshall's sentencing proceedings. The inferential reasoning process was never spelled out by the Commission itself in any available Commission documents. It was, however, fully explained by the Commission's counsel in appellee's briefs to the district court and to this court. The Commission's Notice of Action, informing Marshall of his parole status, contained a statement of reasons, pursuant to 18 U.S.C. § 4206(b) (1982); see also 28 C.F.R. §§ 2.13(c), 2.24 (1987), but the statement consisted only of a conclusory determination, revealing no chain of reasoning. In its entirety, it read:
Your offense behavior has been rated as Category Six severity because it involved a non-peripheral role in a conspiracy to distribute between one and five kilograms of pure cocaine. Your salient factor score (SFS-81) is 9. You have been in federal custody a total of 14 months. Guidelines established by the Commission for adult cases which consider the above factors indicate a range of 40-52 months to be served before release for cases with good institutional adjustment and program achievement. After review of all relevant factors and information presented, a decision outside the guidelines at this consideration is not found warranted. As required by law, you have also been scheduled for a statutory interim hearing during April, 1986.
After exhausting his administrative appeals, Marshall filed a petition for a writ of habeas corpus in the United States District Court for the Middle District of Pennsylvania in June 1985, claiming that the Commission had no basis upon which to make its determination that he had been involved with more than one kilogram of cocaine; that in fact the available evidence indicated that he had been involved with significantly less than one kilo; and that he therefore should have been assigned an offense severity rating of Category 5 (100 grams to one kilogram of pure cocaine). Such a reduction in offense severity would be significant because the parole guidelines call for release of a Category 5 prisoner with Marshall's salient factor score after 24 to 36 months. See 28 C.F.R. § 2.20 (1987) ("Guidelines for Decisionmaking" table).
The record was reviewed by a United States Magistrate, who found no rational basis to support the Commission's finding of more than one kilo. The district court adopted the magistrate's report and thereupon remanded the case so that the Commission could reexamine Marshall's parole status with the instruction that if the Commission still determined that Marshall should be assigned to Category 6, it should clearly explain its reasoning. The court ordered, inter alia,
4. If, in its reconsideration of Marshall's offense categorization pursuant to 28 C.F.R. § 2.20 et seq. the Commission determines that Marshall was in possession of one kilogram or more of cocaine rather than more than 100 grams but less than a kilogram of cocaine the Commission shall indicate:
4.1 The statements, evidence, affidavits, or other facts upon which it relies in reaching its decision;
4.2 The rationale for its decision and its evaluation of all evidence relevant to the decision;
4.3 Specific reasons for rejecting evidence that would tend to support Marshall's position; and,
4.4 Findings of fact on each fact relevant to the Commission's conclusion regarding Marshall's position.
J.A. 110. The court explained its own reasoning in its denial of the Commission's motion to reconsider; the remand was justified "because the record which came before us did not permit us to determine whether the United States Parole Commission could articulate '. . . a rational connection between the facts found and the choice made.' Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, , 42 L. Ed. 2d 447, 95 S. Ct. 438, (1974)." J.A. 115.
Pursuant to the court's remand, the Commission reconsidered Marshall's case and, after a new hearing in March, 1986, reaffirmed its prior finding that Marshall had been involved with more than one kilo. Notwithstanding the court's order, the Commission did not point to any specific pieces of evidence, nor did it explain how the record evidence would lead to the greater-than-one-kilo conclusion. Instead, the Commission included the following in its Notice of Action:*fn4
This statement of reasons has been prepared to comply with a court order. Evidence relied upon in evaluating offense severity:
1. Information contained in Pre Sentence Investigation and transcripts of recorded conversation of August 26, 1983.
2. DEA interview of unindicted co-conspirator Devon Dupres dated August 13, 1982.
3. DEA interview of codefendant Robert Finkel dated June 21, 1982.
In addition, the Commission makes the following findings of fact:
1. Dupres had every reason to be aware the true extent of the overall cocaine conspiracy as well as the particular dealing of Douglas Marshal and Troy Todd inasmuch as she served as the live-in girlfriend of both conspirators during different times in the conspiracy.
2. Marshal admitted throughout the new initial hearing that the statements of Dupres and Finkel had elements of truth in them as to names, dates, etc. Subject primarily disputed the quantities and frequency of the drug transactions mentioned therein. The Commission finds Marshal's representations to be a little more than self-serving rationalizations.
3. Marshal and Todd were close friends from the fall of 1979 through the date of their arrest and lived together for a substantial period of that timeframe. The Commission finds this relationship inextricably links Marshal with the drug trafficking activities of Todd as well as his own. While Marshal worked for Todd, he was a heavy drug trafficker in his own right and was totally and continuously involved in drug trafficking for the life of the conspiracy.
4. Finkel's statement that Todd showed him one kilogram of cocaine on April 18, 1982 at Michael Stern's apartment belies Marshal's representation that he and Todd only kept extremely small quantities of cocaine at Stern's apartment.
5. The purported refuted testimony of Dupres should not be given serious consideration because it is unsigned, dated and elicited under questionable circumstances.
6. Marshal's claim that he disassociated himself from cocaine sales in mid-1981 is at odds with his April 18, 1982 cocaine trafficking activities. Also, Marshal's claim that he dealt only in extremely small sales of cocaine is also ...