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Smallwood v. Oddo

United States District Court, M.D. Pennsylvania

October 17, 2019

L.J. ODDO, et al., Respondents.


          A. Richard Caputo United States District Judge

         Presently 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.

         I. Background

         Petitioner 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).

         Derrick 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).

         A 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).[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 [sic] again.

(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).

         Petitioner 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 5-9).

         The 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 ...

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