Erasmo Gambino v. E.W. Morris (Warden-Fci Fairton) United States Parole Commissioner

134 F.3d 156, 1998 U.S. App. LEXIS 765, 1998 WL 12563

• Court: Court of Appeals for the Third Circuit
• Decided: January 15, 1998
• Docket: 96-5299
• Status: Published

Opinions

OPINION OF THE COURT

LEWIS, Circuit Judge.

Erasmo Gambino, a federal prisoner, alleges that the United States Parole Commission improperly denied him parole. In particular, he claims that the Commission’s conclusion that he was affiliated with an organized crime family was not supported by any evidence, and that an organized crime affiliation is not enough, in itself, to deny parole. Gam-bino filed a writ of habeas corpus, which the district court denied. Because we find that the United States Parole Commission abused its discretion, we will reverse the judgment and remand for further proceedings.

I.

Erasmo Gambino is currently incarcerated at the Federal Correctional Institution at Fairton, New Jersey. In 1984, he was convicted of conspiracy to distribute heroin; two counts of possession of heroin with intent to distribute; and two counts of distribution of heroin, all in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1). Gambino was also convicted of use of a telephone in a conspiracy to distribute and possess heroin, a felony under 21 U.S.C. § 846, in violation of 21 U.S.C. §§ 843(b) and (c). On December 6, 1984, he was sentenced to a 34-year term of imprisonment and a $95,000 fine.

Prior to the verdict, Gambino was cited for attempted escape from the Metropolitan Correctional Center in New York City. He was later found guilty and given a 30-day disciplinary segregation as punishment.

All of these offenses occurred between December 1983 and March 1984, before the enactment of the Sentencing Reform Act of 1984 (“SRA”), Pub.L. No. 98-473, Title II, Oct. 12, 1984, 98 Stat. 1987. The SRA abolished parole, see SRA § 218(a)(5), 98 Stat. 2027, 2031, but only for offenses committed after November 1,1987. See Sentencing Reform Amendment Act of 1985, Pub.L. No. 99-217, § 4, Dec. 26, 1985, 99 Stat. 1728.¹ Thus, Gambino was entitled to a parole hearing.

On April 20, 1994, the United States Parole Commission conducted a parole hearing and Gambino was denied release.² The Hearing Panel assigned Gambino a Category Six Offense Severity Rating because he had been convicted of conspiracy to distribute more than 50 but less than 999 grams of pure heroin. See U.S. Parole Commission Offense Behavior Severity Index, Chapter Nine, Sub-chapter A, ¶ 901(d), 28 C.F.R. § 2.20 (1995).³ The Panel assessed his salient factor score as 10 out of 10, with 10 representing the lowest risk of parole violation. See id. (Salient Factor Scoring Manual). The parole guidelines for a prisoner with a salient score of 10 and a Category Six offense severity rating indicate a term of incarceration of 40 to 52 months. See 28 C.F.R. § 2.20(b). The Panel assessed an additional 8 to 16 months for Gambino’s attempted escape from secure custody.⁴ The resulting aggregate guideline range was 48 to 68 months.⁵ However, 18 U.S.C. § 4205(a) (1997) requires that Gambi-no remain incarcerated for at least 10 years prior to being eligible for parole.⁶ At the time of the April 20, 1994 hearing, Gambino had served approximately 119 months. Nevertheless, the Panel recommended that he remain incarcerated until the expiration of his sentence, solely because Gambino has been identified as a member of an organized crime family.

The Panel also recommended that the ease be referred for “original jurisdiction.”⁷ Government’s Supplemental Appendix (“S.A.”) at 16. On June 27, 1994, the Commission rendered an “original jurisdiction” decision by Notice of Action, determining that Gambino would serve until the expiration of his sentence. Id. at 18. The Commission informed Gambino that a decision to go outside the guidelines was warranted because Gambino was

a more serious risk than indicated by [his] salient factor score in that [he has] been identified by the government as a member of an organized crime family as evidenced by the body of an execution murder victim found in the trunk of [his] automobile on November 15,1982.

Id. The Notice of Action concluded that “[a] decision above the guidelines is mandated in that [Gambino has] a minimum sentence which exceeds the guideline range.” Id. The body referred to in the Notice of Action was that of Pietro Inzerillo. Inzerillo was Gambi-no’s cousin, and the two men jointly owned a pizzeria. Gambino claims, and the government does not dispute, that he was never a suspect in this slaying.

Gambino appealed to the Commission’s National Appeals Board, which affirmed the Commission’s decision on December 7, 1994, by Notice of Action. Id. at 19. The Appeals Board stated that

[i]n response to [Gambino’s] claim that the reasons provided to exceed the guidelines are not a part of the offense of conviction and therefore should, not be relied upon is without merit. The Commission may consider available information to determine an appropriate sanction for the total offense behavior. [His] claim that the information used is flawed does not persuade the Commission to change the decision.

Id.

In summary, the parole guidelines indicated that Gambino should serve a term of 48 to 68 months. However, Gambino was not eligible for parole until he served a minimum sentence of 120 months. He had a parole hearing after serving approximately 120 months and was denied parole. The Commission requires that he serve until the expiration of his 34-year sentence.

If Gambino remains a model prisoner, he will be released after completing two-thirds of his sentence, a period of approximately 272 months. 18 U.S.C. § 4206(d) (1997).⁸ However, if he seriously or frequently violates prison rules, he will serve out his full term of 408 months. See id. These calculations exclude any possible reduction for good time, pursuant to 18 U.S.C. § 4161 et seq. (1997) (repealed by Pub.L. 98-473, Title II, § 218(a), Oct. 12, 1984, 98 Stat. 2027) (repeal effective Nov. 1, 1987, and applicable only to offenses committed after it took effect).

Gambino petitioned the district court for a writ of habeas corpus, pursuant to 28 U.S.C. § 2241. The district court denied the writ.

The district court had jurisdiction pursuant to 28 U.S.C. § 1331. We have jurisdiction pursuant to 28 U.S.C. § 1291.

II.

Our role in reviewing decisions by the Parole Commission on application for a writ of habeas corpus is limited. The appropriate standard of review of the Commission’s findings of fact “is not whether the [Commission’s decision] is supported by the preponderance of the evidence, or even by substantial evidence; the inquiry is only whether there is a rational basis in the record for the [Commission’s] conclusions embodied in its statement of reasons.” Zannino v. Arnold, 531 F.2d 687, 691 (3d Cir.1976). See also 28 C.F.R. § 2.18 (“The granting of parole to an eligible prisoner rests in the discretion of the United States Parole Commission.”). Moreover, we must ensure that the Commission “has followed criteria appropriate, rational and consistent” with its enabling statutes and that its “decision is not arbitrary and capricious, nor based on impermissible considerations.” Id. at 690.

Although the Commission must, in the first instance, use the parole guidelines in determining the release of a prisoner, 18 U.S.C. § 4206(a) (1997), it is not limited by those regulations. 18 U.S.C. § 4206(e)(1997).⁹ The Commission is authorized to “deny release on parole notwithstanding the guidelines ... if it determines there is good cause for so doing.... ” Id. The legislative history of that statute indicates the definition of good cause cannot be precise “ ‘because [good cause] must be broad enough to cover many circumstances.’ ” Iuteri v. Nardoza, 732 F.2d 32, 36-37 (2d Cir.1984) (quoting H.R.Rep. No. 838, 94th Cong., 2d Sess. 27, reprinted in 1976 U.S.Code Cong. & Admin. News 335, 351, 359). Nonetheless, it is not so broad as to evade any definition. “Good cause” may include consideration of such factors as whether ‘“the prisoner was involved in an offense with an unusual degree of sophistication or planning or has a lengthy prior record, or was part of a large scale conspiracy or continuing criminal enterprise.’” Romano v. Baer, 805 F.2d 268, 270 (7th Cir.1986) (quoting H.R. Conf. Rep. No. 94-838, 94th Cong., 2d Sess. 27, reprinted in 1976 U.S.Code Cong. & Admin. News 335, 351, 359). Moreover, “good cause” means “substantial reason and includes only those grounds put forward by the Commission in good faith and which are not arbitrary, irrational, unreasonable, irrelevant or capricious.” Harris v. Martin, 792 F.2d 52, 55 (3d Cir.1986) (citing H.R. Conf. Rep. No. 94-838, 94th Cong., 2d Sess. 27, reprinted in 1976 U.S.Code Cong. & Admin. News 335, 351, 359).

In reaching its decision to grant or deny parole, the Commission may consider a broad range of sources, including presentence investigation reports and “such additional relevant information concerning the prisoner ... as may be reasonably available.” 18 U.S.C. § 4207 (1997). The Commission must resolve disputes with respect to information presented by “a preponderance of the evidence standard.” 28 C.F.R. § 2.19(c).

On appeal, Gambino argues that: (1) none of the information relied upon by the Commission is rationally connected to the Commission’s finding that he was a member of an organized crime family, and (2) there was not “good cause” to place his sentence outside the sentencing guidelines.¹⁰

A.

Gambino contends that the Commission had no evidence before it which rationally connects him to the Gambino family of La Cosa Nostra. We may inquire as to “whether there is a rational basis in the record for the Board’s conclusions embodied in its statement of reasons.” Zannino v. Arnold, 531 F.2d 687, 691 (3d Cir.1976); see United States ex rel. Farese v. Luther, 953 F.2d 49, 53 (3d Cir.1992). While we may not weigh the evidence, we must be certain that at least some of it is rationally connected to the Commission’s finding.

The government argues that the Commission relied on four facts that support its finding that Gambino is a member of a crime family: (1) a Pennsylvania Crime Commission report indicating that Gambino is connected to the Gambino family of La Cosa Nostra; (2) the discovery of Inzerillo’s body in the trunk of Gambino’s car; (3) a New Jersey state police report identifying Gambi-no as a member of the Gambino family of La Cosa Nostra; and (4) a reliable, but unnamed, informant who identified Gambino as a member of the Gambino family of La Cosa Nostra.¹¹

The government asserts that the Commission properly found that the Pennsylvania Crime Commission Report was evidence that Erasmo Gambino was a member of the Gambino family of La Cosa Nostra. But the Pennsylvania Crime Commission Report does not say what either the government or the Commission suggest. The sole reference to Erasmo Gambino in the report states that he is married to the sister of Rosario Gambino (his cousin), who, the report alleges, is a member of La Cosa Nostra.¹² This attenuated familial tie does not, indeed cannot, in and of itself, provide a rational basis for finding that Gambino participated in organized crime. Thus, the Commission erred in concluding that this report stated that Gambino was affiliated with La Cosa Nostra, and accordingly, it is an invalid basis for the Commission’s decision to deny parole. See Campbell v. United States Parole Comm’n, 704 F.2d 106, 109 (3d Cir.1983) (“[t]he Commission may not base its judgment as to parole on an inaccurate factual predicate.”).

For the government to assert that this reference constitutes evidence proving that Gambino is a member of the Gambino family of La Cosa Nostra is, to say the least, a troubling exercise in conjecture. To rely upon the fact that Gambino is married to the sister of someone who is allegedly affiliated with the mafia as evidence that he, too, is a member of the mafia, is to adopt a rule of guilt by association. This would be impermissible even if Gambino were the son, brother or father of a confirmed member of an organized crime family. But Gambino’s wife is not even that. The record in this case does not suggest that she is a mañosa, only that she is related to mafiosos. We cannot understand how the fact that Gambino is related to someone who is related to a mafioso somehow makes him one as well. Nor does the fact that he is a blood relative of the Gambino family make him an ex officio member of the Gambino “family” of La Cosa Nostra.

The discovery of Inzerillo’s corpse in the trunk of Gambino’s car also does not link Gambino to La Cosa Nostra. At best, it suggests that Inzerillo, Gambino’s cousin and business partner, was involved with, or perhaps the victim of, organized crime. But the record indicates — and the government does not dispute — that Gambino was never a suspect in the homicide investigation, and fully cooperated with it. This is a very important point. The discovery of a body in the trunk of a car — particularly a so-called “execution murder victim,” as the Commission described Inzerillo — carries with it an undeniable graphic impact. It is almost natural to assume initially that the car’s owner was not only involved in the murder, but in other unsavory activity as well. While we in no way mean to diminish the magnitude of this crime, we cannot see how, after investigators had determined that Gambino was not involved with that killing, the Commission can consider his proximity to it as a basis for the denial of parole. Under the particular circumstances of this case, we cannot hold that this evidence provides a “rational basis ... for the Board’s eonclusion[ ] embodied in its statement of reasons.” Zannino, 531 F.2d at 690.

With regard to the New Jersey State Police Report, we begin by noting that evidence of affiliation with a crime family may be particularly amorphous in a case like this, in which confusions caused by appellation and genealogy might interfere with the accurate assessment of Erasmo Gambino’s criminal history.

The New Jersey State Police report’s conclusion that Gambino is linked to organized crime is, to say the least, vague. Although the parties have not included a copy of the New Jersey State Police report in the record, the Commission apparently relied upon a reference to this report in the Government’s Sentencing Memorandum. Appellee’s Supplemental Appendix at 54. The Sentencing Memorandum indicates only that Gambino “has been identified by the New Jersey State Police ... as a member of the Gambino family of La Cosa Nostra.” Id. at 76. But we require evidence intended to establish a defendant’s ties to organized crime to be more reliable than a bald assertion from an unverified source. See United States v. Cammisano, 917 F.2d 1057, 1061 (8th Cir.1990) (rehable information needed to justify upward departure for involvement with organized crime under Sentencing Guidelines); see also Cardaropoli v. Norton, 523 F.2d 990, 997 (2d Cir.1975) (noting that government often has no basis for its conclusions that inmates “played a significant role in a criminal organization”); Coralluzzo v. New York State Parole Bd., 420 F.Supp. 592, 598 (W.D.N.Y.1976), aff'd, 566 F.2d 375 (2d Cir.1977) (noting that “serious errors are often made by the Government in determining that an inmate has links with organized crime”); Mascolo v. Norton, 405 F.Supp. 523, 524 (D.Conn.1975) (“This is another in a series of cases which disclose the arbitrary classification of an inmate as a ‘member of organized crime’ or ‘Special Offender’ by federal prison officials without a rational basis in fact and without affording the inmate any procedural due process protections.”); Catalano v. United States, 383 F.Supp. 346, 350 (D.Conn.1974) (Bureau of Prisons’ imposition of ‘organized crime’ status must be done “in a rational and non-discriminatory manner.”); Masiello v. Norton, 364 F.Supp. 1133, 1136 (D.Conn.1973) (finding no basis in fact for parole board to conclude that defendant should be given organized crime designation, as confidential presentence report was “replete with hearsay, inferences, and conclusions concerning alleged connections between [the defendant’s] family and organized crime”).

The hearsay allegations of the “reliable, unnamed informant” are similarly flawed. While it is true that the Commission can consider hearsay, Campbell, 704 F.2d at 109-10, this allegation, in the context of this particular case, is especially suspect. The appellant’s name itself is sufficiently evocative to question the government’s characterization of the informant’s allegation that Erasmo Gambino is a member of the Gambino family of La Cosa Nostra.¹³ We have noted above that the government has mischaracter-ized the contents of the Pennsylvania Crime Commission Report, most likely as a result of the appellant’s surname and familial ties. We are similarly concerned with the government’s characterization of the informant’s allegation: we were not provided with the underlying report from which the allegation is derived. Moreover, Gambino has not had the opportunity to challenge the veracity of the informant.

To protect against arbitrary action, the government should have good cause for the non-disclosure of an anonymous informant’s identity, and sufficient corroboration of the testimony. Cf. United States v. Fatico, 579 F.2d 707 (2d Cir.1978) (subsequent history omitted) (at sentencing, district court can consider hearsay testimony of unidentified informant regarding defendant’s involvement in organized crime as long as there is good cause for non-disclosure and sufficient corroboration). The government’s summary of the unnamed informant’s allegation is neither sufficiently rehable nor sufficiently corroborated to support the Commission’s finding. See id. at 712-13 (“[A] significant possibility of misinformation” may justify the sentencing court in requiring “the Government to verify the information.”); United States v. Borello, 766 F.2d 46, 60 n.23 (2d Cir.1985); see also Misasi v. United States Parole Comm’n, 835 F.2d 754, 757-58 (10th Cir.1987) (being described by unnamed local and federal authorities as largest distributor of illegal prescription drugs in report by the United States Attorney is not a “specific fact” for the purposes of the Commission’s own procedures); cf. Zannino, 531 F.2d at 691-92 (Parole Board may consider hearsay regarding membership in crime organization that was presented as sworn testimony during the course of a formal Congressional hearing where defendant and counsel had the opportunity to rebut it). Here, the corroboration of the allegation consists of the New Jersey State Police Report we discussed earlier, and no good cause has been shown for the non-disclosure of the informant’s identity. The government’s unilateral, untested assertion that the informant is rehable is not sufficient to overcome these shortcomings.¹⁴

The Commission relied upon the above evidence to require that Gambino serve until the expiration of his sentence, adding anything from 12 to 24 years to the minimum period of incarceration required by statute. Yet, some of the evidence relied upon by the Commission is altogether speculative as to Erasmo Gambino’s connection to the Gambino family of La Cosa Nostra. Other evidence only tenuously demonstrates the connection. The remainder is hearsay from unnamed sources. It can hardly be said that this evidence, in itself, provides a “rational basis in the record for the Board’s conclusions embodied in its statement of reasons,” Zannino v. Arnold, 581 F.2d at 691, and the denial of parole is arbitrary and capricious as a result. See id. at 689; see also Misasi, 835 F.2d at 757-58 (rebanee on one factually incorrect reason and one nonspecific reason does not constitute “rational basis” for parole date outside of guidelines).

In the context of a sentencing hearing, we have warned of situations where a substantial upward departure in a sentence becomes “‘a tail which wags the dog of the substantive offense.’ ” United States v. Kikumura, 918 F.2d 1084, 1101 (3d Cir.1990) (quoting McMillan v. Pennsylvania, 477 U.S. 79, 88, 106 S.Ct. 2411, 2417, 91 L.Ed.2d 67 (1986)). In Kikumura we held that a greater evidentiary burden was required when the magnitude of a contemplated departure was extreme. Kikumura, 918 F.2d at 1101. Although the Parole Commission has greater discretion than a sentencing judge, we are concerned that it was willing to add one or two decades to Gambino’s prison term based on the quality of evidence discussed above. A rational penal system must have some concern for the probable accuracy of the evidence it uses to make its decisions. See United States v. Perri, 513 F.2d 572, 575 (9th Cir.1975).¹⁵

B.

We consider next Gambino’s contention that the Commission’s failure to demonstrate “good cause” warrants his immediate release. The government argues that a remand to the Parole Commission is the appropriate remedy if “good cause” is found lacking. We agree.

We have ordered a prisoner released on parole only under unique circumstances, which are not present in this ease. Only “[w]hen a district court remands a case to the Parole Board for failure to adequately explain its decision and, on remand, the Commission again declines to articulate a basis for the identical conclusion, [may] a district court ... permanently decide this issue on the record before it.” Bridge v. United States Parole Comm’n, 981 F.2d 97, 106 (3d Cir.1992). See also Billiteri v. United States Bd. of Parole, 541 F.2d 938, 944 (2d Cir.1976) (in the case of non-compliance by the Parole Board, a “court can grant the writ of habeas corpus and order the prisoner discharged from custody.”).

For instance, in Marshall v. Lansing, 839 F.2d 933 (3d Cir.1988), the district court remanded a habeas proceeding to the Commission with instructions to clearly explain the reasoning for its offense categorization. Notwithstanding the court order, the Commission reassigned the same offense severity level without providing an adequate explanation. In light of the protracted history of the case and the district court’s impression that the Commission intentionally had evaded its mandate, the district court ordered the Commission to reassess the prisoner’s parole status under a specific offenses severity category. We affirmed this final relief. We also have ordered the release of a prisoner who was denied parole in part because of his race, where a remand would have consumed several months, by which time his sentence would have expired. See Block v. Potter, 631 F.2d 233 (3d Cir.1980).

In the absence of such unusual circumstances, however, it is clear that a remand is the appropriate remedy. See e.g., Zannino v. Arnold, 531 F.2d 687, 692 (3d Cir.1976); Billiteri, 541 F.2d at 938. In this case, although we have determined that the Commission’s basis for exceeding the guideline lacks “good cause,” it is conceivable that “good cause” may be demonstrated at a new hearing. Because we find no unusual circumstances, like those presented in Bridge, Marshall and Block, we will remand for further proceedings.

III.

For the reasons discussed above, we reverse the judgment and remand the case to the district court with directions that it vacate its judgment and order. Furthermore, the district court should remand the case to the Parole Commission with directions that it conduct another Panel hearing within 60 days, and in a manner consistent with this opinion. Since Gambino has already served many months more than prescribed by his guideline range and his mandatory minimum sentence, additional administrative proceedings should be conducted expeditiously.

1 . The parole enabling statutes, 18 U.S.C. §§ 4201 to 4218 (1997), were repealed pursuant to Pub.L. 98-473, Title II, § 218(a)(5), Oct. 12, 1984, 98 Stat. 2027. Nonetheless, these statutes remain in effect for ten years after Nov. 1, 1987. Pub.L. 101-650, Title III, § 316, Dec. 1, 1990, 104 Stat. 5115. For the sake of brevity, the subsequent history of the parole statutes will be hereafter omitted.

2 . To avoid later confusion when citing early cases regarding parole, we note that the Parole Commission is the successor to the Parole Board. Campbell v. United States Parole Commission, 704 F.2d 106, 111 (3d Cir.1983); Pub.L. No. 94-233, § 2, Mar. 15, 1996, 90 Stat. 219.

3 . The Commission does not indicate which edition of its regulations it relied upon, although it is clearly a recent one. The district court relied on the 1995 edition, as do we.

4 .The Commission's Notices of Action do not indicate under which provision this penalty was assessed. The district court stated that it was assessed pursuant to 28 C.F.R. § 2.36(a)(23)(l)(A). There is no such section, but it appears that the district court intended to indicate 28 C.F.R. § 2.36(a)(2)(i)(A). However, on its face, this section does not apply to Gambi-no’s attempted escape because it only applies “to the sanctioning of disciplinary infractions or new criminal behavior committed by a prisoner subsequent to the commencement of his sentence.” Id. § 2.36(a). Gambino attempted to escape pri- or to the verdict and thus prior to the commencement of his sentence. Moreover, he was given a 30-day disciplinary segregation for this offense after he was found guilty.

Because Gambino has not raised this issue and because his mandatory minimum sentence exceeds the guideline range with or without the additional 8 to 16 months, we need not decide if this increase in the guideline range was proper.

5 . The district court stated that the guideline range was 48 to 78 months. This is incorrect and appears to be a typographical error. Because both figures are below the applicable statutory mandatory minimum sentence, the disparity has no effect on our analysis.

6 . 18 U.S.C. § 4205(a) (1997) provides that "[w]henever confined and serving a definite term or terms of more than one year, a prisoner shall be eligible for release on parole after serving one-third of such term or terms or after serving ten years of a life sentence or of a sentence of over thirty years, except to the extent otherwise provided by law.”

7 . The district court stated that this case was referred for "original jurisdiction” consideration pursuant to 28 C.F.R. § 2.17. Gambino v. Morris, slip op. at 4, No. 95-CV 4559 (D.N.J. Apr. 11, 1996). However, the Regional Commissioner’s May 13, 1994 Notice of Action indicates that the case was referred for further review pursuant to 28 C.F.R. § 2.24(a). S.A. at 17. Subsection 2.24(a), entitled "Review of Panel Recommendations by the Regional Commissioner,” provides that

[a] Regional Commissioner may review the recommendation of any examiner panel and refer this recommendation, prior to written notification to the prisoner with his recommendation and vote to the National Commissioners for consideration and any action deemed appropriate.... The Regional Commissioner and each National Commissioner shall have one vote and decisions will be based upon the concurrence of two votes.

(Emphasis added.) The section entitled “Original Jurisdiction cases" provides that

[Hollowing any hearing conducted pursuant to these rules, a Regional Commissioner may designate certain cases for decision by a quorum of Commissioners as described below, as original jurisdiction cases.... Decisions shall be based on the concurrence of three votes with the appropriate Regional Commissioner and each National Commissioner having one vote.

28 C.F.R. § 2.17(a) (emphasis added).

The National Commission stated in its Dec. 7, 1994 Notice of Action that it had "original jurisdiction” pursuant to 28 C.F.R. §§ 2.17(b)(2) and (b)(4). S.A. at 19. Not only is this inconsistent with the Regional Commissioner’s Notice of Action, it is also facially incorrect. Subsection (b)(4) only applies to "[pjrisoners sentenced to a maximum term of forty-five years (or more) or prisoners serving life sentences.” Because Gam-bino is only serving a sentence of 34 years, this subsection does not apply.

Subsection (b)(2)(ii) would apply, however, if the case had been referred pursuant to section 2.17. See 28 C.F.R. § 2.17(b)(2)(ii) (Regional Commissioner may designate a case as "original jurisdiction” when a prisoner’s offense "was part of a large-scale criminal conspiracy or a continuing criminal enterprise.”).

Notwithstanding these procedural irregularities, we need not decide whether Gambino was prejudiced by them because of the result we reach in this case. We note them only to ensure that they are not repeated on remand.

8 . 18 U.S.C. § 4206(d) (1997) provides:

Any prisoner serving a sentence of five years or longer, who is not earlier released under this section or any other applicable provision of law, shall be released on parole after having served two-thirds of each consecutive term or terms, or after serving thirty years of each consecutive term or terms of more than forty-five years including any life term, whichever is earlier. Provided, however, that the Commission shall not release such prisoner if it determines that he has seriously or frequently violated institution rules and regulations or that there is a reasonable probability that he will commit any Federal, State or local crime.

(Emphasis in original.)

9 . 18 U.S.C. § 4206(a) (1997) provides that a prisoner may be released "pursuant to guidelines promulgated by the Commission .... see also 28 C.F.R. § 2.20(b), (c) ("These guidelines indicate the customary range of time to be served before release for various combinations of offense (severity) and offender (parole prognosis) characteristics.... These time ranges are merely guidelines. When the circumstances warrant, decisions outside of the guidelines (either above or below) maybe rendered.”).

10 . At times, Gambino appears to be arguing that his due process rights under the Fifth Amendment have been violated as well. Because of the result that we reach here, we need not address this constitutional claim. See Erie Telecommunications, Inc. v. City of Erie, Pa., 853 F.2d 1084, 1093 (3d Cir.1988) ("a court faced with both constitutional and nonconstitutional claims must address the nonconstitutional claims first, if doing so will enable the court to avoid a constitutional confrontation.”).

Gambino raised a number of additional arguments in his "Pro Se Reply Brief.” We will “not consider arguments raised on appeal for the first time in a reply brief.” United States v. Boggi, 74 F.3d 470, 478 (3d Cir.1996).

11 . Gambino argues that the Panel only considered the Pennsylvania Crime Commission Report and the fact that Inzerillo’s body was found in his car. The Initial Hearing Summary does, in fact, only rely on those two items. Plaintiff's Appendix ("P.A.”) at 7. The Pre-Hearing Assessment relies on those two items and one other for its conclusion. P.A. at 5. The Assessment mentions that the New Jersey State Police had identified Gambino as a member of the Gambino family of La Cosa Nostra. However, nowhere does this Assessment explicitly mention that it relied on information provided by an informant.

Because we find that the information provided by that informant is unreliable, we need not decide whether Gambino was further prejudiced by the failure to mention the reliance on the informant before and during the parole hearing. See Misasi v. United States Parole Commission, 835 F.2d 754 (10th Cir.1987) (only weighing evidence presented at initial parole hearing).

12 . The entire report is not part ol the record before us, but the government does not dispute this characterization of it.

13 . The record suggests that the Commission relied upon one reference in the Government's Sentencing Memorandum to the informant’s allegation. The Sentencing Memorandum states that a "reliable informant ... has been told by Erasmo Gambino that he is a member of the Gambino family of La Cosa Nostra.” Appellee's Supplemental Appendix at 77.

14 . As Judge Roth observes in her concurring opinion, the evidentiary problem raised by the informant testimony is exacerbated by the fact that Gambino had no opportunity to present his own version of the facts, or to rebut or challenge the informant’s alleged statements.

15 . Gambino also argues that affiliation with organized crime is an inadequate basis for denying parole, at least where an inmate’s crime of conviction does not indicate organized criminal activity. We can envision circumstances in which an inmate has participated in organized criminal activity, yet that participation nonetheless does not indicate a likelihood of future criminal activity (for instance, where a member of a crime family renounces his allegiance or becomes a government informant). This argument, therefore, is not to be dismissed lightly. Because we have determined that Gambino is entitled to relief on other grounds, however, we need not decide this issue.