Mason v. USPC

• Court: Court of Appeals for the Fifth Circuit
• Decided: September 1, 1995
• Docket: 95-60105
• Status: Unpublished

Opinion

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _______________________

No. 95-60105 Summary Calendar _______________________

STEVEN BRUCE MASON,

Petitioner,

versus

UNITED STATES PAROLE COMMISSION,

Respondent. _________________________________________________________________

Appeal from the United States Parole Commission (08125-008) _________________________________________________________________ (September 25, 1995)

Before JOLLY, JONES and STEWART, Circuit Judges.

PER CURIAM:*

Steven Bruce Mason (“Mason”) was arrested, convicted, and

sentenced in Mexico for the offense of robbery with violence.

Pursuant to a transfer treaty between this country and Mexico, he

is now imprisoned in the United States. Mason complains that the

Parole Commission committed plain error when it refused to reduce

his sentence because of the abuse he suffered at the hands of

foreign officials and his acceptance of responsibility for his

crime. Because we find no such plain error, the determination of

the Parole Commission is affirmed.

* Local Rule 47.5 provides: "The publication of opinions that have no precedential value and merely decide particular cases on the basis of well- settled principles of law imposes needless expense on the public and burdens on the legal profession." Pursuant to that Rule, the Court has determined that this opinion should not be published. I. FACTUAL BACKGROUND

On October 30, 1992, Mason entered a branch of the

Banco Nacional de Mexico in Tijuana and, armed with a revolver,

demanded money from a teller. When the teller unlocked her cash

drawer, Mason leapt over the counter and took $1,761 in U.S.

currency and 14,820 new pesos. However, before he could escape

the bank, Mason was apprehended by a bank guard and arrested.

Convicted in Mexico of the crime of robbery with

violence, Mason was sentenced to ten years in jail and was

ordered to pay a fine of 4,665.50 new pesos. After appeal, his

sentence was reduced to eight years and his fine, to 3,990 new

pesos.

Pursuant to the Treaty on the Execution of Penal

Sentences (“Transfer Treaty”) between the United States and

Mexico,1 Mason was transferred to this country and incarcerated

in the FCI-La Tuna, Texas. Under the Transfer Treaty, the Parole

Commission has authority to determine the release date for

prisoners convicted under foreign laws and transferred to the

United States.2 Prior to Mason’s hearing before the Commission,

a Parole Commission examiner had calculated Mason’s offense level

as 24 and his criminal history as Category VI, with guidelines of

1 Transfer Treaty, Nov. 25, 1976, U.S.-Mex., 28 U.S.T. 7401, T.I.A.S. No. 8718. 2 See 18 U.S.C. § 4106A (1988). The Parole Commission’s determination of the release date is structured by the Sentencing Guidelines.

2 100-125 months.3 During the hearing, Mason’s attorney argued

that the Mexican sentence, 96 months, was the longest prison term

that Mason could serve and requested a downward departure from

that term for the abuse Mason suffered at the hands of foreign

officials and because he accepted responsibility for his crime.

After considering this request, the Parole Commission

declined to depart downward and found that Mason’s imprisonment

should continue until expiration of his Mexican sentence, less

prison time credits,4 and that he then serve a 32-month

supervised release. The Commission reasoned that Mason was not

entitled to a downward departure because his Mexican sentence was

significantly shorter than the analogous sentence under the

Sentencing Guidelines; stated otherwise, Mason’s actual sentence

was less than it would have been under the Guidelines even had

his downward departure been granted. Mason’s attorney did not

object to the release date set by the Commission at any time

during the hearing.

II. DISCUSSION

The parties agree that the Parole Commission’s

determination of Mason’s release date must be reviewed for plain

error. Under plain error review, the petitioner must demonstrate

three factors before this court can correct a forfeited error:

(1) there was an error; (2) it was clear or obvious; and (3) this

3 Mason has a career of criminal activity. Convicted of six prior offenses, including five bank robberies, Mason has also repeatedly absconded from supervised parole. 4 See 18 U.S.C. § 4105© (1988) (explaining formula for release date).

3 error affected the substantial rights of the petitioner. United

States v. Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994) (en

banc) (citing United States v. Olano, ___ U.S. ___, 113 S. Ct.

1770, 1776-79 (1993)), cert. denied, ___ U.S. ___ 115 S. Ct. 1266

(1995). Even if these factors are established, this court will

not exercise its discretion to correct the error unless it

seriously affects the fairness, integrity, or public reputation

of judicial proceedings. Olano, 113 S. Ct. at 1778.

Because Mason does not prove that the Parole Commission

plainly erred when it determined his release date, this court

affirms the determination of the Commission. Indeed, Mason has

not even satisfied his initial burden of demonstrating that the

Commission actually erred. While this court agrees that the

maximum sentence that the Commission could impose on Mason is the

expiration of the foreign sentence, less good time credits, the

Commission did not err in refusing to depart downward from this

maximum. See Roeder v. U.S. Parole Comm’n, No. 93-4114, unpub.

op. at 5 (5th Cir. Sept. 10, 1993), reported at 5 F.3d 529

(table) (holding that while the Mexican sentence was the maximum,

it was not error to decline to depart downward); Lara v. U.S.

Parole Comm’n, 990 F.2d 839, 841 n.4 (5th Cir. 1993) (noting that

the Parole Commission did not err when it refused to depart

downward from a Mexican sentence that was set far below the

analogous offense under the Guidelines). See also, United States

v. Buenrostro, 868 F.2d 135 (5th Cir. 1989) (affirming refusal to

depart downward since such refusal did not violate any law).

4 These cases furnish no authority for requiring the Commission to

adjust the foreign sentence, when it is less than the applicable

domestic guidelines for an analogous offense, to recognize

torture or acceptance of responsibility.5 In any event, the

sentence reached by the Parole Commission is certainly no

miscarriage of justice.

This court AFFIRMS the release date determination of

the Parole Commission.

5 This court is singularly unimpressed with the public defender’s having agreed to an analogous career offender guideline of 100-125 months before the Parole Commission, only to call that determination “plain error” in this court. We expect a higher level of expertise and preparedness from this office.