filed: April 13, 1990; As Corrected May 22, 1990. As Amended.
On Appeal From the United States District Court for the Middle District of Pennsylvania, D.C. Civil No. 89-616.
Sloviter, Becker and Stapleton, Circuit Judges.
On December 10, 1987, appellant Matthew Madonna, an inmate at the United States Penitentiary at Lewisburg, Pennsylvania, received a parole hearing from the U.S. Parole Commission and was denied release.*fn1 According to Madonna, this denial constituted a departure from the Parole Commission guidelines applicable to him. Such a departure -- assuming that there was a departure -- would arguably be impermissible under the unamended version of section 235(b)(3) of the Sentencing Reform Act of 1984 (SRA).*fn2 However, it would be permissible under section 235(b)(3) as amended by section 2(b)(2) of the Sentencing Act of 1987,*fn3 which became law on December 7, 1987, well after Madonna had been sentenced but three days before his parole hearing. Arguing that the unamended version of section 235(b)(3) applies to him, Madonna brought a habeas corpus action in the district court for the Middle District of Pennsylvania, see 28 U.S.C. § 2241, seeking release from custody. The district court referred the case to a magistrate, who concluded that the amended version applied. The district court agreed and therefore denied the writ. Madonna appealed.
As framed by Madonna, the principal issues on appeal are whether Congress intended the amended version of section 235(b)(3) to apply to him and, if so, whether that application violates either the Ex Post Facto or the Due Process Clauses of the United States Constitution. We find it unnecessary to address these questions, however. Because we conclude that the parole guidelines applicable to Madonna contained no upper limit, we agree with the Commission that no upward departure from the guidelines has occurred -- or could occur -- in this case.
In 1976, Madonna received a thirty-year sentence for possessing with intent to distribute over 20 kilograms of heroin. The parties agree that under the Parole Commission guidelines, this conduct qualified as a Category Eight offense, the highest offense category that those guidelines employ. See 28 C.F.R. § 2.20, at 92 (1989). Thus, even assuming that Madonna had earned the most favorable "Very Good" parole prognosis, which the Commission does not contest, the guidelines prescribe a release date after "100" months of incarceration. See id.*fn4 On its face, this guideline range contains no upper limit, in distinct contrast to ranges applicable to less serious offenses, which are either bounded from above and below*fn5 or bounded only from above.*fn6
Despite the apparently plain meaning of the Category Eight guideline ranges, Madonna contends that they have an implied upper limit of 48 months above their lower limit, which would fix Madonna's particular guideline range at between 100 and 148 months. To infer such a limit, Madonna relies solely on the Parole Commission's practice of providing a statement of reasons whenever a Category Eight offender is denied release for more than 48 months after the earliest release date within his guideline range. The guidelines themselves, however, explain this practice and foreclose Madonna's interpretation of it. A footnote referenced to the Category Eight guidelines explains:
Note: For Category Eight, no upper limits are specified due to the extreme variability of the cases within this category. For decisions exceeding the lower limit of the applicable guideline category by more than 48 months, the Commission will specify the pertinent case factors upon which it relied in reaching its decision, which may include the absence of any factors mitigating the offense. This procedure is intended to ensure that the prisoner understands that individualized consideration has been given to the facts of the case, and not to suggest that a grant of parole is to be presumed for every class of Category Eight offenders.
The case law confirms that the guidelines mean what they say in this regard. Thus, in Kele v. United States Parole Commission, 775 F.2d 243 (8th Cir. 1985), the Eighth Circuit held that a guideline range of "52 plus months" applicable to certain inmates who had committed "Greatest II" offenses*fn7 contained "no upper limit." Id. at 245. Moreover, the Sixth Circuit has stated that the guidelines applicable to Category Eight offenses have "no upper limit." Hackett v. United States Parole Commission, 851 F.2d 127, 129, 132 (6th Cir. 1987) (per curiam). Madonna fails to cite -- and we have been unable to find -- any authority to the contrary.
We see no reason to reject these decisions and to disregard the plain meaning of the Category Eight guideline ranges. Madonna has advanced no argument that the Commission exceeded its delegated authority to promulgate release guidelines, see 18 U.S.C. § 4203(a)(1) (1982), by providing that the ranges applicable to those who commit the most serious offenses should be unbounded from above. We conclude, therefore, that because Madonna was correctly classified as having committed a Category Eight offense, the guideline range applicable to him contains no upper limit.
To summarize, Madonna's argument to this court is that no upward departure is permitted because the amendment made by section 2(b)(2) of the Sentencing Act of 1987, which would permit departure, is inapplicable. However, even assuming arguendo that no upward departure were permitted, no upward departure ...