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United States v. Keohane

argued: May 18, 1989.

UNITED STATES OF AMERICA EX REL. D'AGOSTINO, DOMINICK
v.
KEOHANE, PATRICK, WARDEN, U.S. NORTHEASTERN PENITENTIARY; QUINLAN, J. MICHAEL, DIRECTOR U.S. BUREAU OF PRISONS; AND BAER, BENJAMIN F., CHAIRMAN U.S. PAROLE COMMISSION DOMINICK D'AGOSTINO, APPELLANT



Appeal from the United States District Court for the Middle District of Pennsylvania - Scranton, D.C. Civil No. 88-1148.

Author: Mansmann

Opinion OF THE COURT

MANSMANN, Circuit Judge

In this appeal from the dismissal of petitioner's writ of habeas corpus we are faced with the necessity of interpreting 235(b)(3) of the Sentencing Reform Act of 1984*fn1 to determine whether an individual who is released prior to the day before the Parole Commission expires in 1992 is within the jurisdiction of the Commission and therefore guaranteed a release date within the appropriate guideline range. This issue is one of first impression for us, although the Courts of Appeals for the Second and for the Fifth Circuit have decided the question. Because we conclude as did our sister courts that 235(b)(3) is a "wind-up" provision and does not guarantee an individual's release within the guideline range, we affirm the district court's dismissal of the petition for writ of habeas corpus. In addition, we note that the petitioner's request for habeas relief that the court order the Parole Commission to hold a hearing to reduce his offense severity category in light of the new property value ranges, and thereby order his release, is now moot since the Commission sua sponte granted a hearing and rendered a decision.

I.

The petitioner, Dominick D'Agostino, was convicted of RICO violations stemming from mail fraud, interstate transportation of money obtained through extortion, and bribery of public officials. He received an aggregate sentence of 13 years. The Parole Commission assigned D'Agostino a salient factor of 10 and placed him in an offense severity category of 6 because he had directed a racketeering enterprise which resulted in fraud exceeding $500,000, knowingly transported $300,000 in checks which had been extorted from the victim, and engaged in bribery of public officials. Indeed, in its recitation of facts attached to the presentencing report, the government described incidents of bribery and extortion involving the Orlando Construction Company, founded in 1974 by the government's witness Rudolph Orlandini, D'Agostino, and several others, which was used to obtain money through fraudulent change orders and to make payoffs to city and county officials. These payoffs totalled well over $600,000.

The category 6 designation placed D'Agostino in the guideline range of serving 40-52 months prior to his initial parole hearing. D'Agostino began serving his sentence in 1983. His initial parole hearing was held on December 9, 1987. The Commission denied parole because it determined that a longer range was necessary due to the extensive and sophisticated nature of the criminal organization which had "systematically corrupted public officials and defrauded the public over a six year period."

After D'Agostino received notice of the denial of his parole, he appealed to the National Appeals Board. Shortly thereafter, the Federal Parole Commission published revised categories in the Federal Register in which the property amount involved for a grade of category 6 was increased to more than one million dollars. Category 5 encompassed values ranging from $200,000 to $1,000,000. The National Appeals Board denied the request for immediate parole and responded that D'Agostino's grade would remain at category 6 because he "directed a racketeering enterprise which resulted in fraud exceeding $1 million."

D'Agostino filed his petition for writ of habeas corpus on July 29, 1988 alleging that the Parole Commission violated the Sentencing Reform Act, specifically 235(b)(3), by failing to set a release date within the parole guideline range for his offense severity. In addition, he argued that the Commission's decision to increase the dollar amount of the fraud from $600,000 to over $1 million without a hearing was arbitrary, capricious and a violation of due process. He sought two remedies, an immediate release under 235(b)(3) because he had served his sentence of 40-52 months, or in the alternative, an order from the courts requiring the Commission to hold a hearing and reduce his offense severity to Category 5 and order his immediate release.

While the petition was under consideration before the district court, the Parole Commission sua sponte issued a notice of a special reconsideration hearing to consider D'Agostino's offense severity in light of amendments to the sentencing guidelines. D'Agostino moved to have the hearing stayed pending decision on the writ. The district court denied the motion to stay the appeals board hearing. The court concluded that the hearing would grant D'Agostino the opportunity to challenge the findings of the Commission's decision to deny the reduction of his offense severity rating which was, in part, the gravamen of his petition. The district court also dismissed the petition for writ of habeas corpus, finding that 235(b)(3) did not require the Commission to set D'Agostino's release date prior to the statutory release date of July 16, 1992. D'Agostino appeals.

Our review of the district court's decision to dismiss the petition for writ of habeas corpus to enable the Parole Commission to reconsider D'Agostino's case de novo is based on an abuse of discretion standard. Zannino v. Arnold, 531 F.2d 687 (3d Cir. 1976). The district court's decision dismissing the petition for writ of habeas corpus, resting on an interpretation of 235(b)(3) of the Sentencing Reform Act, is subject to plenary review since it involves an interpretation of legal concepts. United States v. Adams, 759 F.2d 1099 (3d Cir. 1985).

II.

First, we address D'Agostino's contention that the Parole Commission violated 235(b)(3) of the Sentencing Reform Act by failing to set a release date within the guideline range of 40-52 months for his category 6 severity offense. In addition, or as a subissue, D'Agostino contends that if the Commission bases its decision to deny parole and to require the full statutory sentence to be served upon 4206 (providing for denial for good cause), this is an unconstitutional action in violation of the ex post facto clause since the amendment of 235 permitting the departure became effective in December 1987, after D'Agostino had served one-third of his sentence.

The government counters D'Agostino's claim that 235(b)(3) requires his release within his guideline range by contending that 235(b)(3) of the Act was to be a phase-out or transition section intended to provide authority to the Commission to complete a final round of parole decisions prior to the expiration of its authority on November 1, 1992. We must determine whether, as D'Agostino contends, 235(b)(3) guarantees a release date within a petitioner's applicable ...


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