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U.S. ex rel. Farese v. Luther

filed: January 7, 1992.

UNITED STATES OF AMERICA EX REL. JOHN FARESE # 12136-054
v.
DENNIS LUTHER, WARDEN, JOHN FARESE, APPELLANT



Appeal from the United States District Court for the Western District of Pennsylvania. D.C. No. 90-00256E

Before: Sloviter, Chief Judge, Cowen and Rosenn, Circuit Judges

Author: Rosenn

Opinion OF THE COURT

ROSENN, Circuit Judge.

This appeal raises the question of whether the United States Parole Commission properly considered, for purposes of determining eligibility for parole, the activities of co-distributors of an illegal drug substance over which petitioner had no control and could not have been expected reasonably to foresee. Specifically, the petitioner Farese, convicted for conspiracy to distribute cocaine, challenges the Commission's decision to base his offense severity rating on the total amount of cocaine distributed by his co-defendants, 15 kilograms, instead of rating him only on the basis of the 2.5 kilograms he himself distributed. He points to the Commission's regulation which states that it cannot hold a prisoner accountable for activities committed by associates over which the prisoner had no control and could not have been expected reasonably to foresee. The Regional Commission rendered a decision continuing Farese for a presumptive parole after the service of 72 months, based upon a severity rating of category seven.*fn1 Farese appealed to the Parole Commission's National Appeals Board, contending that the correct offense severity was category six, which covers distribution of between 1.25 and 6.24 kilograms of cocaine of unknown purity. The National Appeals Board affirmed the Commission's decision.

Having exhausted his administrative remedies, Farese filed a writ of habeas corpus petition in the United States District Court for the Western District of Pennsylvania, alleging that the Parole Commission violated his due process rights by (1) rating his offense severity in reliance upon erroneous information, in violation of the Commission's rules and regulations, and/or calculating offense severity in an arbitrary and capricious manner; and (2) issuing legally and logically deficient notices of action in his case. The district court, on the recommendation of the magistrate, denied the petition for habeas writ. The petitioner appealed. We reverse.

I.

In 1987, Farese pled guilty to charges of conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. § 846, and possession of property obtained from a criminal enterprise in violation of 21 U.S.C. § 853. The charges stemmed from Farese's purchase of drugs from an organization headed by one Gary Feola. According to the presentence investigation report, Feola received in excess of 15 kilograms of cocaine from several sources, and sold kilogram quantities of cocaine to eleven distributors, including Farese, located in Westchester County, Brooklyn, and Long Island, New York, Baltimore, Boston and New Jersey. The conspiracy count to which Farese pled guilty did not list a specific quantity of cocaine or other controlled substance.

The "culpability Index" of Farese's pre-sentence investigation (PSI) concluded that, "in the Government's view, the cocaine distributors in the FEOLA organization . . . are, more or less, equally culpable. Each was a major, multi-kilogram cocaine dealer who operated in blatant disregard of the narcotics laws for many years." The "Prosecution's Version" of the PSI stated that Feola "was distributing kilo quantities of cocaine" to Farese, referred to Farese as a "multi-kilogram" cocaine dealer, and stated that "Feola and his co-conspirators distributed well in excess of 15 kilograms of cocaine." However, it did not provide any specifics as to the total amount of cocaine Farese personally allegedly distributed. In the "Defendant's Version" of the PSI, Farese stated that from sometime in 1984 until the time of his arrest in November, 1985, "he was selling cocaine to a small group of individuals . . . amounting to a few ounces 'here and there' totalling approximately eight ounces per month, for a fee of $1900.00."

Farese received a 12-year sentence which he began serving in October of 1989. The initial hearing to determine his presumptive release date for parole took place on December 20, 1989. At the parole hearing, Farese again stated that he had been distributing cocaine for approximately ten months and had distributed approximately eight ounces of cocaine monthly. He denied that he had been involved in the distribution of a minimum of six kilograms of cocaine during his period of association with Feola.

The parole examiners were in disagreement as to the appropriate offense classification for Farese. Hearing Examiner Tenney recommended an offense severity rating of category seven, holding Farese accountable for 6.25-18.74 kilograms of cocaine of unknown purity. Tenney believed that Farese "should be held responsible for the overall conspiracy amount of 15 kilograms because of his significant role in the conspiracy and the fact that he received a sentence longer than anyone else . . . ." Hearing Examiner Newman, on the other hand, recommended an offense severity of category six, noting that the Commission had so rated one of Farese's co-defendants and concluding that Farese appeared to truthfully state the extent of his involvement in the offense, which amounted to the distribution of "slightly over 2 kilograms of the substance."

In the notice of action accompanying the decision, the Commissioner explained that he rated Farese's offense as severity seven "because it involved conspiracy participation in the very large scale distribution of 6.25-18.74 kilograms of cocaine of unknown purity." Farese asserted that he had no contact with his co-defendants, other than Feola, and that there was no evidence that he could foresee and control the actions of the co-defendants. He therefore argues that the Commission rendered its decision, which must be based upon accurate information and under a preponderance of the evidence standard, on an unsupportable record.

II.

On appeal, Farese's first claim is that the Parole Commission violated his fifth amendment due process rights by basing his offense severity rating on the entire amount of cocaine distributed by all of the defendants during the life of the conspiracy. Farese argues that the Commission ...


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