United States District Court, M.D. Pennsylvania
Richard Caputo United States District Judge
before me is the Petition for Writ of Habeas Corpus pursuant
to 28 U.S.C. § 2241 (Doc. 1) filed by James Eugene
Smallwood (“Petitioner”). Petitioner alleges that
after the United States Parole Commission
(“USPC”) revoked his parole, the USPC
“double count[ed]” his criminal history in
deciding to impose more prison time than that suggested by
the guidelines. Because the USPC did not engage in
impermissible double counting, the petition will be denied.
was convicted in the Superior Court of the District of
Columbia of Assault with a Dangerous Weapon on October 19,
1988. (See Doc. 7, Ex. “A”). Petitioner
was sentenced to 40-120 months in prison. (See id.).
The following month, the Superior Court revoked
Petitioner's probation for a prior conviction for
“Carnal Knowledge” and sentenced him to
“not less than eighty months nor more than two hundred
and forty months to run consecutive.” (Doc. 7, Ex.
“B”, 1; see also Doc. 7, Ex.
“D”, 1). Petitioner was first released on parole
for these sentences on October 22, 1997. (See Doc.
7, Ex. “D”, 2). Since then, Petitioner has had
his parole revoked six times. (See id. at 2-3).
R. Miller, a USPC Case Analyst, applied for a warrant for
Petitioner on March 15, 2016. (See Doc. 7., Ex.
“E”, 1-3). A warrant was issued the same day.
(See Doc. 7, Ex. “F”, 1). The warrant
application was supplemented on March 24, 2016 to include two
additional charges. (See Doc. 7, Ex.
“G”, 1-2). Petitioner subsequently pled guilty to
“Stalking - Harm Known”, “Poss Prohibited
Weapon - Other”, and “Threats to Do Bodily Harm -
Misd” on September 12, 2016. (Doc. 7, Ex.
“H”, 1). Petitioner was sentenced to 365 days of
confinement. (See id.). The United States Marshals
thereafter executed the USPC warrant on February 23, 2017.
(See Doc. 7, Ex. “I”, 1).
parole revocation hearing was held on April 12, 2017.
(See Doc. 7, Ex. “J”, 1). The USPC
revoked Petitioner's parole and ordered 60 months of
confinement. (See id. at 1). In so doing, the USPC stated
that Petitioner's “parole violation behavior has
been rated as criminal conduct of Category Two severity
because it involved Stalking - Harm Known (Conviction),
Possession of Prohibited Weapon - Other (Conviction), Threats
to Do Bodily Harm Misdemeanor (Conviction).”
(Id. at 2). The USPC also calculated
Petitioner's Salient Factor Score as 2. (See
id.). The USPC noted that “[g]uidelines
established by the Commission indicate a customary range of
16-22 months to be served before release.”
(Id.). The USPC, however, found “a decision
above the guidelines . . . warranted because you are a more
serious risk than your Salient Factor Score based on your
continued violent and threatening conduct while on
supervision, ” explaining:
You were first placed on probation after a 1982 conviction
for Carnal Knowledge and Taking Indecent Liberties with a
Child for a [sic] offense in which you sexually abused a 15
year old mentally retarded child. While on probation, you
committed an assault with a dangerous weapon by stabbing a
victim. This resulted in a new felony conviction as well as
your probation being revoked and an aggregate sentence of 30
years. You have been paroled and revoked from this aggregate
term on five separate occasions. Three of your five prior
revocations included findings that you committed new criminal
conduct. Your criminal conduct during parole supervision has
included committing an assault with a knife while attempting
to avoid detention from a shoplifting charge in 2003;
assaulting a female by striking her repeatedly in October
2005 and soliciting an undercover officer for sex in June
2012. During the current period of parole, you have been
convicted of stalking, possessing a prohibited weapon and
threats to do bodily harm. Your propensity to commit crimes
involving violence or threats of violence has not been
deterred by parole supervision and that Commission finds that
you are a high risk to commit similar crimes when release
(Id.). The USPC further noted that as of
“March 19, 2017, [Petitioner] ha[d] been in confinement
as a result of [his] violation behavior for a total of 12
month(s), ” so his confinement was to “[c]ontinue
to a presumptive parole on March 28, 2021 after service of 60
months.” (Id. at 1-2).
filed an administrative appeal on November 8, 2017.
(See Doc. 7, Ex. “K”). Petitioner
claimed that the “decision outside the guidelines was
not supported by good cause.” (Id. at 2).
Petitioner insisted that the USPC's justification
“was unreasonable because it impermissibly
double-counted his criminal history, which was adequately
accounted for by [his] guidelines range.” (Id.
at 5). Petitioner also argued that the USPC did not consider
the relevant mitigating circumstances. (See id. at
National Appeals Board denied Petitioner's appeal on
November 16, 2017. (See Doc. 7, Ex. “L”,
1). The National Appeals Board reasoned:
[Y]our appeal states that the Commission improperly
“double-counted” your prior convictions that were
encompassed in your salient factor score as a reason for an
upward departure from the guidelines recommendation. Your
attorney also argues that the Commission did not consider all
matters in mitigation. For the following reasons, the
National Appeals Board finds no merit to your claim.
The Commission has not “double-counted” your
criminal history and current law violations. The Commission
has discretion to render a decision outside the guidelines
(whether above or below) provided the circumstances warrant
and such a decision is adequately explained. In your case,
the Notice of Action dated June 5, 2017 stated that a
decision above the guidelines is warranted because you are a
more serious risk than your salient factor score based on
your continued violent and threatening conduct while on
supervision. Specifically, you have been convicted on
numerous crimes on three separate occasions. Additionally,
you have had your parole revoked on five separate occasions
and have received two letters of reprimand from the
Commission. The Commission determined your unsuccessful times
on parole justified the decision to continue to the
expiration of your sentence. While a salient factor score
encompasses how many times you were convicted, it does not
encompass the number of counts or specific aggravating
factors that were included in each conviction. In your case,
many of your convictions include multiple offenses.
Similarly, your offense severity rating of two only rates the
most serious offense you were convicted of (stalking, in this
case). The offense severity rating does not capture the fact
that you had two other convictions for possessing a
prohibited weapon and threats to do bodily harm as the rating
does not increase for charges rated lower than your most
serious offense. Therefore, the guidelines do not fully
reflect your criminal behavior and your risk to commit
further crimes. As such, the Commission, through the Notice
of Action, has provided “good cause” as required
for an upward departure. The National Appeals Board finds
your claim that the Commission “double counted”
your criminal behavior to be meritless.
While not specifically framed as a claim in your appeal, your
attorney argues that the Commission did not consider your
family relations, institutional behavior, and mental health
in its decision. The Commission is presumed to have
considered your entire record from the hearing including all
matters in mitigation. The National Appeals Board finds that
the matters in mitigation do not outweigh the aggravating
factors considered in the ...