Aponte v. USPC

CourtCourt of Appeals for the Fifth Circuit
DecidedJuly 7, 2000
Docket99-60775
StatusUnpublished

This text of Aponte v. USPC (Aponte v. USPC) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Aponte v. USPC, (5th Cir. 2000).

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 99-60775 Summary Calendar _____________________

JUAN ENRIQUE APONTE,

Petitioner,

versus

UNITED STATES PAROLE COMMISSION,

Respondent. _________________________________________________________________

Appeal from the United States District Court for the Northern District of Texas USDC No. 18USC4106A _________________________________________________________________ June 30, 2000 Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

PER CURIAM:*

The appellant, Juan Enrique Aponte, seeks review of the United

States Parole Commission’s determination of his release date for

transporting cocaine in Mexico. Specifically, Aponte argues that

the Parole Commission impermissibly considered his socioeconomic

status in determining his release date. Consequently, Aponte

asserts, because such a consideration is “forbidden by the

sentencing guidelines,” he is entitled to a redetermination of his

release date. Finding that the Parole Commission did not consider

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Aponte’s socioeconomic status in determining his release date,

Aponte’s request for a redetermination is denied.

I

Aponte, an American citizen, was convicted in the First

District Court in San Luis Potosi, San Luis Potosi, Mexico, of

transporting 12 kilograms of cocaine. He was sentenced to 165

months imprisonment. Pursuant to a treaty between the United

States and Mexico, Aponte was transferred to the United States to

serve his prison sentence. Upon arrival in the United States, the

United States Parole Commission was required to determine his

release date. See 18 U.S.C. § 4106A(b)(1)(A) (West 1999). After

a hearing before a Parole Commission examiner, the examiner

recommended that Aponte be released after serving a prison term of

135 months.1 In the examiner’s written hearing summary, he

enumerated the reasons he believed supported a prison term of 135

months:

A decision at the top of the applicable guideline range is found warranted because you transported 12 kilograms of cocaine, an amount at the upper end of the 5-15 kilogram range in the sentencing guidelines. A penalty that proportionally reflects the relative seriousness of the offense is therefore in order. Further, you blamed this behavior on others, and your overall record

1 Specifically, the examiner determined that the base offense level was 32, see U.S.S.G. § 2D1.1(a)(3) (1999), and that Aponte’s Criminal History Category was a II based on his two prior convictions for criminal assault. The examiner also determined that Aponte was entitled to a two-level reduction for accepting responsibility for his actions. Thus, the examiner determined the offense level to be 30, necessitating a sentence between 108 and 135 months.

2 (including your record of domestic violence and lack of a solid wage-earning history) indicates that a more lenient penalty would fail to afford adequate deterrence to criminal conduct of a similar nature in the future.

The hearing examiner’s recommendation was first reviewed by

the Parole Commission’s Office of General Counsel. The legal

office attorney assigned to the case agreed with the examiner,

stating that the relevant factors including Aponte’s evidence of

his willingness to blame others, his history of domestic violence,

and his lack of sufficient wage earning capacity to keep him from

going after “easy money,” necessitated a sentence at the upper end

of the guidelines.2 Second, the examiner’s recommendation was

reviewed by a second hearing examiner. This examiner likewise

agreed with the recommendation. Thus, the sentencing

recommendation was forwarded to the Parole Commission. See 28

C.F.R. § 2.68(h)(6) (1999).

2 Specifically, in a document entitled “Legal Office Review of Transfer Treaty Case,” the legal office attorney stated:

[T]his offender seems to have the background and personality type to be almost a more serious risk for renewed drug involvement than his Criminal History Category would indicate. Relevant factors include, his evident willingness to blame others, his history of domestic violence, and the lack of sufficient wage earning capacity to keep him from again going for easy money. (There is only Aponte’s unverified claim to have worked ten years in an auto repair garage for minimum wage, an obviously marginal job to which he proposes to return. This is not a promising outlook.) A departure is not warranted, but the risk of an economically marginal, aggressively impulsive man going back into the drug trade would seem to be relatively high.

3 The Parole Commission, accepting the recommendation of the

examiners, imposed a release date of June 9, 2009. In support of

this decision, the Commission stated:

You transported 12 kilograms of cocaine, an amount at the

upper end of the 5-15 kilogram range in the sentencing

guidelines. A penalty that proportionally reflected the

relative seriousness of the offense is therefore in

order. Further, you blamed this behavior on others, and

your overall record (including you record of domestic

violence and lack of a solid wage-earning history)

indicates that a more lenient penalty would fail to

afford adequate deterrence to criminal conduct of a

similar nature in the future.

Aponte filed a timely notice of appeal of this sentence

determination with our court.

II

Aponte is before our court today seeking a redetermination of

his release date. He argues that he is entitled to a

redetermination of his sentence because the Parole Commission

“illegally” considered his socioeconomic status in determining his

release date. See 28 U.S.C. § 994(d) (West 1999)(stating that

“[t]he Commission shall assure that the guidelines and policy

statements are entirely neutral as to . . . socioeconomic status of

offenders”); see also U.S.S.G. § 5H1.10 (1999)(stating the same);

4 United States v. Burch, 873 F.2d 765, 768-69 (5th Cir. 1989).

Specifically, Aponte argues he is “being punished more severely

because of his socioeconomic status.” In support of this

contention, Aponte points to various written comments made by

members of the Parole Commission who reviewed his case regarding

his past employment history and his future wage-earning capacity.

After reviewing the statements relied on by Aponte in support

of his claim, we hold that the Parole Commission did not consider

Aponte’s socioeconomic status in determining his release date.3 As

noted by Aponte in his reply brief, “a defendant’s employment

history may be an appropriate consideration in determining his

3 As noted by the D.C. Circuit in United States v. Lopez, 938 F.2d 1293 (D.C. Cir. 1991), “socioeconomic” status refers to “an individual’s status in society as determined by objective criteria such as education, income, and employment; it does not refer to the particulars of an individual life.” Id.

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