Petition — Brown v. Lundgren

Supreme Court. . *

II „ 5

MAY 7 1976

— —-—ͤ—ũ— —b. —6f — — —

In the ,

Supreme Court of the United States

OCTOBER TERM, 1975

— 751023

SIDNEY F. BROWN, IR.

Petitioner

versus

DAVID C. LUNDGREN, WARDEN FEDERAL

CORRECTIONAL INSTITUTION,

Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT

DONALD R. SCOGGINS

One Elm Plaza, Suite 2000

LO15 Elm Street

Dallas, Texas 75202

Attorney for Petitioner

——ññ— —

A B Letter Service, lac, 327 Chartres N., New Orleans, Le. (504) 5861-5555

INDEX

PAGE NO.

Citation to Opinion Below.ss.s:sssssssssssssssssssessessesssssseee 1

K 2 2

Questions Presented for Review........c:seeseseceseeeereseeens 2

Constitutional Provisions, Statutes and Regulations

123531 —————————— 4

United States Constitution Fifth Amendment.............. 8

Statutes and Regulations Relevant to Questions

— — 6

E •ůÄ—K 7

Exhaustion of Administrative Remedies... 8

Basis for the Parole Board’s Denial of Paroles, 8

Amplified Reasons for Granting Writ of Certiorari.......... 11

Semen OE Bene cccccsescsnsnsccnesosnescecassipeisentosssetenniseseens 14

„„ . 15

5 sees 16

5 —..—— ͤꝶʃUœ—Hhä TE 17

11 ————— ͤ— 18

K CN 19

75 T 22

ä 28

55. cesses 29

LIST OF AUTHORITIES

PAGE NO.

Childs v. United States Board of Parole, (1974)

511 F. zd 1270... .... . ... 6e . cee. · · · . · . · 12

Morrissey u. Brewer, 1972, 408 U.S. 484... 12,15

North Carolina v. Pearce (1969) 395 U.S, 711 at 726..... 14

28 U.S.C. 41254 (L).sccccssesecreresresresrrseesrenrerrseeseesseeenennens 2

28 U.S.C, 1 2241 (C)asscssssssssrsseerereeersreeeesrenesssnnasssee ones ene 5

28 U.S.C. 1 2242. ... . . . . . . 66e. . ee. . . . . .es. 5

28 U.S. C. 1 2243... . . .. . .. . .be .be. . 6e, 6

3 U.S. C. 1 701. ..... . . ...... 6 cee eee eee . cee 6

3 U.. C. 703. PET 7

18 U.S. C. 5s 4161. ...... . ee. ... 6e . 6e. 6. e. 11

18 U.S. C. 8 4162. . .. ..... . 6. 6e. eee . 6. . 11

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1975

SIDNEY F. BROWN, IR.,

Petitioner

vs.

DAVID C. LUNDGREN, WARDEN FEDERAL

CORRECTIONAL INSTITUTION,

Respondent

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

Petitioner prays that a Writ of Certiorari issue to review

the judgment of the United States Court of Appeals for the

Fifth Circuit entered in the above cause on March 18, 1976,

which became final on March 18, 1976, with no Petition for

Rehearing being filed, nor was an extension of time sought

for filing of a Petition for Rehearing.

CITATION TO OPINION BELOW

The original notice from the Board of Parole denying

parole appears as Appendix “A”; the affirmation of this

decision following the Regional Appeal appears as Appendix

„B“, and the National Appeal Denial and Reasons appears

as Appendix C“ and C1“.

The opinion of the United States District Court for the

Northern District of Texas is not reported in a bound volume

but both the Findings, Conclusions and Recommendation of

the United States Magistrate and the Order adopting same,

“

—

signed by the Honorable William M. Taylor, Jr., United

States District Court Judge, each styled Sidney F. Brown, Jr.,

vs. David C. Lundgren, Warden, Federal Correctional Institu-

tion, Civil Action No, C. A. 3-75-0571, are pended hereto

as Appendix “.

The opinion of the United States Court of Appeals for

the Fifth Circuit, No. 75-3184, delivered March 18, 1976,

is, as yet, not reported in a bound volume but is appended

hereto as Appendix E“.

JURISDICTION

The judgment of the United States Court of Appeals

for the Fifth Circuit was entered on March 18, 1976, No Pe-

tition for Rehearing was filed, nor was a request to extend

time requested and the judgment became final on March 18,

1976.

The jurisdiction of this Court is invoked under 28 U.S.

(412854 (1),

QUESTIONS PRESENTED FOR REVIEW

Question Number One: Did the Ue ved States Court of

Appeals for the Fifth Circuit correctly ermine that the

expectation of parole release while still wm otherwise lawful

custody is not a “grievous loss“ in the Constitutional sense?

By first determining that the denial of parole did not

constitute a “grievous loss”, the Fifth Circuit Court of

Appeals was able to leave unanswered the question presented

of whether the procedures of the Parole Board in the instant

case denied constitutional due process.

3

Question Number Two: Can the United States Board of

Parole, consistent with the Fifth Amendment to the Consti-

tution of the United States, deny parole to an inmate for a

period of months in excess of the outer limit of the range of

months of confinement to be served before parole which

limits are established by the Board of Parole in its Guide-

lines for Decision Making? As the basis for disregarding the

published guidelines, the Board used information which the

District Court Judge considered in setting the period of

confinement at the time of the original sentencing; which

same information was thereafter considered by the Board of

Parole in assigning a salient factor score to the Petitioner

which score is instrumental in determining the range of

months the offender will be required to serve in confine-

ment; the Board then used the same information for a third

time to arbitrarily “jump” the Petitioner into a higher

“offense severity” category with a comensurate longer

period of months to be served before parole, than the of-

fense for which he was actually convicted dictates. '

Question Number Three: Can a federal prisoner seeking

to challenge the decision of the United States Board of

Parole do so by naming the Warden of the institution in

which he is incarcerated as the Respondent in his Petition for

a Writ of Habeas Corpus; or stated otherwise, must a prison-

er, without regard to where he is in custody or who has cus-

1. “Offense behavior and “salient factor score” as used by the Board,

refer to the Board's Guidelines which set forth length of time to be

(Appendix GJ. These two factors applied to the Board's

the offender to serve.

4

tody ot his person, sue the United States Board of Parole to

determine the legality of his continued incarceration as a

result of the denial of parole. This question was not answer-

ed by the Fifth Circuit because the Poard of Parole was not

named a respondent.

Question Number Four: Does the publication by the

United States Board of Parole of its Guidelines for Decision

Making, pursuant to the Administrative Procedure Act,

create a statutory right by an inmate to have the Board com-

ply with the Guidelines and does a subsequent departure by

the Board form its Guidelines make the inmate’s custody

illegal and create the corresponding right to release on

parole?

Question Number Five: If minimal constitutional due

process is due, or if this Court should find that the Board is

bound by the perimeters of its published guidelines, then has

this Petitioner, Sidney F. Brown, Jr., been illegally denied

parole under the facts of this case?

Question Number Six: Finally, did che United States

Court of Appeals for tbe Fifth Circuit erroneously conclude

from the record before it that Petitioner was, at his original

parole hearing, correctly informed of the reasons used by the

Board to increase his offense severity classification, if such

increase is consistent with the law?

CONSTITUTIONAL PROVISIONS, STATUTES AND

REGULATIONS INVOLVED

Constitutional provisions relevant to Question Number

One:

5

The United States Constitution, Sec. 9, Clause 2:

The privilege of the Writ of Habeas Corpus shall

not be suspended unless when in cases of rebellion

or invasion, the public safety may require it.

UNITED STATES CONSTITUTION-FIFTH

AMENDMENT

No person shall. . . be deprived of life, liberty,

or property, without due process of law.

28 U.S.C. ¢ 2241 (C)

The Writ of Habeas Corpus shall not extend to a

prisoner unless -

(1) He is in custody under or by color of the

authority of the United States or is committed for

trial before some court thereof, or

(2) He is in custody for an act done or ommitted

in pursuance of an act of Congress, or an order,

process, judgment or decree of a court or judge

of the United States, or

(3) He is in custody in violation of the consti-

tution or laws or treaties of the United States;. . .

28 U.S. C. 12242:

It [application for a Writ of Habeas Corpus] shall

allege the facts concerning the applicant’s commit-

ment or detention, the name of the person who has

custody over him...”

6

28 U.S. C4 2243:

The writ or order to show cause shall be directed

to the person having custody of the person de-

tained. . .

The person to whom the writ order is directed

shall make a return certifying the true cause of

the detention. -

STATUTES AND REGULATIONS RELEVANT

TO QUESTIONS FOUR AND FIVE:

5 U.S.C.1 701

(A) This chapter [judicial review of agency ac-

tion] applies, according to the provisions thereof,

except to the extent that -

(1) Statutes preclude judicial review; or

2) Agency action is committed to agency

discretion by law.

h) bor the purpose of this chapter-

(1) “Agency” means each authority of

the Government of the United States

whether or not it is within or subject

to review of another agency, but does

not include-

(a) The Congress;

7

(b) The Courts of the United

States;

(c) The governments of the

territories or possessions of

the United States;

(d) The government of the

District of Columbia.

5 U.S.C. 703

The form of proceeding for judicial review [of

agency action] is the special statutory review pro-

ceeding relevant to the subject matter in a court

specified by statute. . . or any applicable form of

legal action, including actions for declaratory judg-

ment or writs of prohibitory or mandatory injunc-

tion or habeas corpus, in a court of competent

jurisdiction. Except to the extent that prior,

adequate and exclusive opportunity for judicial

review is provided by law, agency action is subject

to judicial review in civil or criminal proceedings

for judicial enforcement.

STATEMENT OF THE CASE

Petitioner, Sidney F. Brown, Jr., who is confined in the

Federal Correctional Institute at Seagoville, Texas, on May

12, 1975, filed a petition in the United States District Court

for the Northern District of Texas for a Writ of Habeas

Corpus pursuant to 28 U.S.C. 1 2241 (c). Petitioner is con-

fined as a result of his conviction in the United States Dis-

trict Court for the Western District of Louisiana under a

two count indictment alleging in each count the unlawful

distribution of D, 1-Amphetemine on August 2 and August 6,

1973. Petitioner plead guilty to the charge on May 4, 1973,

and was sentenced as an adult offender to five years confine-

ment. No appeal was taken. This Petition for Writ of Habeas

Corpus is based upon the fact that Petitioner’s liberty is un-

lawfully restrained because he has been illegally denied, by

the United States Board of Parole, the opportunity to be

paroled within the time period for parole established by the

Board of Parole ‘or all other persons who are confined for

similar offenses and with behavioral characteristics similar

to his own.

EXHAUSTION OF ADMINISTRATIVE REMEDIES

Petitioner was originally considered for parole in Febru-

ary, 1975, after having been confined in the Federal System

since July 6, 1973. On February 14, 1975, he was notified

by the United States Board of Parole that parole had been

denied and he was required “to continue for institutional

review hearing in October, 1976.” As provided by Board

rules, a Regional Appeal of the Board decision was institu-

ted, which appeal was denied on February 21, 1975 (See

Appendix B). Thereafter, a National Appeal of the affirma-

tion to the National Appeal Board in Washington was institu-

ted. The National Appellate Board affirmed the previous

decision (See Appendix C). This Petition for Writ of Habeas

Corpus followed.

BASIS FOR THE PAROLE BOARD'S DENIAL OF

PAROLE

In the instant case, the Board ultimately gave four rea-

sons for denying parole to Petitioner as follows:

9

REASONS: (1) our offense behavior has been

rated as very high severity. You have a salient

factor score of 7. ou have been in custody a

total of 19 months. (2) Guidelines established

by the Board for adult cases which consider the

above factors indicate a range of 36-45 months

to be served before release for cases with good

institution program performance and adjustment.

After careful consideration of all relevant fac-

tors and information presented, it is found that

a decision outside the Guidelines at this considera-

tion does not appear warranted. (3) The offense

behavior consisted of multiple separate offenses.

(4) Prior record shows history of assaultive or

violent conduct is present demonstrating a poten-

tial for assaultive behavior

Reasons number (1) and (2) above as stated by the Board

for parole denial are erroneous in that while the Board has

rated the offense behavior as “very high severity”, such

classification is patently incorrect. The proper offense

severity for the offense for which this Appellant was convic-

ted, i. e., the distribution of D, 1-Amphetamine, should be

“high” for the sale of soft drugs ($500-$5,000), with a

time to be served of from 20 to 26 months (Appendix F).

Sidney Brown has been confined since July, 1973.

The Court will note (Appendix A) that the original

reasons given by the Board of Parole for denial of parole

offered no explanation of the classification but simply rated

the offense as “very high severity and that with a salient

factor score of 7, the time indicated to serve was 36 to 45

months, an apparently superficial justification for the exten-

ded set off.

10

Thereafter, the National Appellate Board gave additional

reasons for denying parole, these being that (3) the offense

behavior consisted of multiple separate offenses and (4)

prior record shows a history of assaultive type conduct.

The denial of due process argument focuses, first on the

fact that Item A in the Salient Factor Score which lowers the

score for prior convictions has already taken into account

this single ten year old charge; second, Petitioners score has

been lowered in Item B for his prior incarcerations, Finally,

the Board has established got one specified number of

months for release within its Guidelines but rather within

each category, there is a range of months which leaves the

Board wide discretion even when acting within the scope of

its Guidelines, Petitioner acknowledges that factors (3) and

(4) as enumerated by the Board in its reasons for denying

parole merit consideration by the Board in establishing the

exact time period for Petitioner to serve in confinement,

but states that these factors must be considered within the

proper 20 to 26 months category, Such factors might very

well establish release at a time later than the minimum of 20

months but not beyond the 26 months maximum established

by the Guidelines, Petitioner suggests that factors (3) and (4)

are of not such significance as to merit the due process denial

inherent in the complete and arbitrary reclassification of

Sidney into a category inappropriate under the Guidelines.

Not only is this Petitioner required to suffer the “grie-

vous loss” of completing his sentence inside an institution's

walls-a loss suffered in common by all who are denied parole-

but in the instant case, denial of parole led to terminat n of

Sidney Brown's weekend furlough status (which had been in

effect for six months) and even though Sidney had been ap-

proved for outside study release (attendance at a local coil-

11

ege) by institution officials, he has been unable to participate

in this program because of the extended set-off for parole.

When Sidney Brown's offense severity is properly cate-

gorized, he would have to have a total score on the Salient

Factor Consideration (Appendix G) of from 0-3, instead of

his actual total of 7, to warrant a set-off of from 32-38

months. There is no 45 month salient factor score possible

in the appiopriate category of “high”. The Board has written

off the page to reach the 45 month set-off.

Finally, the Board's arbitrary action in “continuing for

review hearing until October”, 1976, has, in effect, denied

serious parole consideration altogether and required that

confinement continue to expiration, Not only has Sidney

Brows been receiving the statutory 8 days per month “good

time“ but because of his excellent disciplinary and work

record, he has, since January, 1974, been receiving an addi-

tional 3 days per month credit for meritorious good time;

This 3 days per month credit has been increased to 5 days

per month as of January 1,1975, which additional merito-

ious good time credit places Sidney Brown's mandatory te-

lease date in the month of October, 1976—the same month

that he will be reconsidered for parole, Thus, by this set-off,

the Board has in effect determined that it would never give

serious consideration to Petitioner's parole application.

AMPLIFIED REASONS FOR GRANTING WRIT OF

CERTIORARI

The following cogent reasons exist for granting this

Application for Writ of Certiorari:

2. 18 U.S.C.§4161.

3. 18 U.S.C. $4162.

12

1. The finding of the Fifth Circuit Court of Ap-

peals that denial of parole is not a “grievous loss”

in the Constitutional sense is squarely and diamet-

rically opposed to the recent findings of the Court

of Appeals for the District of Columbia that denial

of parole is a “grievous loss” in the Constitutional

sense, Childs vs. United States Board of Parole,

(1974) 511 F.2d 1270, Not only are the two cir-

cuit courts’ conclusions in this question wholly

inconsistent, but it can be reasonably anticipated

that the several other circuit courts of appeals will

be called upon to resolve this same question pre-

sented in the context of the recently published

Guidelines for Parole Decision Making, by prison-

ers who believe themselves to have been aggrieved

by parole board decisions made outside the pub-

lished Guidelines.

2. Secondly, the issues presented in the instant

case provide the vehicle through which the recip-

rocal question left unanswered in Morrissey v.

Brewer, 1972, 408 U.S. 484, 1. e., does constitu-

tional due process apply in the federal system to

the consideration of parole and, if so, what mini-

mal process is due, may be answered.

13

continue incarcetation beyond the period contem-

plated by the Board’s own Guidelines?

3. The Court can resolve the procedural question

which was neither raised nor briefed by either

party before the United States Court of Appeals

for the Fifth Circuit but which issue was decided

by the Court in its opinion of whether, first,

habeas corpus as permitted by the United States

Constitution, Acts of Congress and the Adminis-

trative Procedure Act, is the appropriate vehicle to

test the legality of continued incraceration based

upon decisions by the United States Board of

Parole and, secondly, whether naming the warden

of the institution in which the Petitioner is incar-

cerated, as apparently was intended by Congress

in 28 U.S.C, 1 2242, supra, is adequate notice to

the government to resolve the legality of the re-

straint; or must the United States Board of Parole

be made a party to the suit by Petitioner; or if the

Board is a necessary party, should the United

States Board of Parole be impleaded by the warden

as suggested in 28 U.S.C, 1 2243, supra, or should

some other party, e. g., the Department of Justice

or Attorney General be petitioned?

While Morrissey v. Brewer, supra, supports Petitioner's

position that the action of the parole board can be ques-

tioned by naming only the warden as respondent, the ques-

tion was apparently not specifically decided in that decision.

In another context, this Court has previously

declared that imposition of a more severe sentence

after retrial “must be based upon objective infor-

mation concerning identifiable conduct on the part

of the defendant occurring after the time of the

original sentencing proceeding.’’ North Carolina

v. Pearce (1969) 395 U.S. 711 at 726, Should not

a similar rationale apply for the parole board to

Respectfully submitted,

DONALD R. SCOGGINS

1015 Elm Street, Suite 2000

Dallas, Texas 75202

Attorney for Petitioner

Appendix A

Perote Form Me

(Rev, June 1974)

UNITE STATES DEPARTMENT OF JURE *- Cc

United States Board of Parole V D

14 Washington, D.C, 20537 ie -

788 1 4 13/5

CERTIFICATE OF SERVICE

Notice of Action Warden's Oftwe

1, Donald R. Scoggins, Attorney for Petitioner, certify we ee

that copies of the foregoing Petition for Writ of Certiorari Name _ Sidney Franklin Brown, Jr.

were served upon William ©, Wuster, Assistant United States

Attorney, by depositing same in the United States Mail, first | — — ' —

class postage prepaid and addressed to William O. Wuster, in the case of the above-named, the Board has carefully examined all the information at its

Assistant United States Attorney, 310 United States Court- — — the following action with regard to parole, parole status, or mandatory release

was ordered:

house, 10th & Lamar Streets, Fort Worth, Texas, 76102;

and that service was made in the same manner upon the

Solicitor General, Department of Justice, Washington, D.C., Continue for Institutional Review Hearing October, 1976.

20530, both done on this 2ist day of April, 1976.

Conditions or remarks:

DONALD R, SCOGGINS

1015 Elm Street, Suite 2000 Reasons for denial, continuance or revocation: (Use separate sheet if necessary)

Dallas, Texas 75202 Your offense behavior has been rated as very high severity. You

214 742-1694 have a salient factor score of seven. You have been in custody

Attorney for Petitioner a total of 19 months.

Guidelines established by the Board for Adult cases which

consider the above factors indicate a range of 36 to 45 months

to be served before release for cases with good institutional

program performance and adjustment, After careful consideration

of all relevant factors and information presented, it is found

that a decision outside the guidelines at this consideration

does not appear warranted,

rocedure: You have a right to appeal a decision as shown below. Forms for that

— may be obtained from your caseworker, and must be filed with the Chief, Classi.

fication and Parole, (or his equivalent) within thirty days of the date this Notice was sent.

A. Decision of a Hearing Examiner Panel. Appeal may be made to the Regional Director.

B. Decision of the National Appellate Board referred to it for reconsideration, Appeal

may be made to the Regional Director.

C. Decision of the Regional Director. Appeal may be made to the National Appellate Board.

O. Decision of Regional Directors in cases where they assumed original jurisdiction

Appeal may be made to the National Appellate Board.

February 13, 1975 8

(Date Notice 2580 plo Central

sla

National Appellate Board

(Docket Clerk) (Check)

- Appendix B

Parole Form 4.20

(Mev Owe 1073)

UNITED STATES DEPARTMENTQ USTICE

United States Board of Parole

Washington, D.C. 20537

Notice of Action on Appeal

Neme Sidney F. Brown

Register Number_20984-149 _ inssitusion__Seagoville

REGION APPEAL; The appeal by the above-named has been carefully examined by the Regional Dvrec-

tor(s) and t

owing was ordered:

Affirmation of the previous decision.

Reversal or modification of the previous decision, as follows:

— An institutional hearing during the month of

A regional appellate hearing before the Regional Director,

You have @ right to appeal this order to the National Appellate Board. Forms for that purpose may be

obtained from your caseworker, and must be filed with the Chief, Classification and Parole (or his equivalent),

within 30 days of the date shown below.

NATIONAL APPEAL: The appeal by the above-named has been carefully examined by the National Appel.

Tate Board and the following was ordered:

Affirmation of the previous decision „

Reversal or modification of the previous decision as follows:

An institutional hearing during the month of

A rehearing at the regional appellate level.

A hearing before the entire Board (applicable only in cases where the Regional Directors assumed

original jurisdiction).

All decisions by the National Appellate Board on appeals are final.

Sr 4.2" or a = =. ˙ =~

— 2-21-13

Oste Notice sent)

me ee ee

(Regqon specify)

PJP

Joo Clerk)

—— National Appellate Board _

Appendix C

Parote Form 29

(Rev Dec 1973)

' UNITED STATES DEPARTMENT O Stick .

United States Board of Parole

Washington. D.C. 20537 _

Notice of Action on Appeal

— Sidney F. Brown, Jr.

Register Number _2°984=-149 „non Seagov111

REGIONAL APPEAL: The appeal by the above-named has been carefully examined by the Regional Direc

tor(s) and the following was ordered:

Affirmation of the previous decision.

Reversal or modification of the previous decision, as follows: 22—

= _

Ari. 1259 9

Warrtes ¢ rng a

feu * and 13° ü

6 22

An institutional hearing during the month of

A regional appellate hearing before the Regional Director.

You have a right to appeal this order to the National Appellate Board. Forms for that purpose may be

obtained from your caseworker, and must be filed with the Chief, Classification and Parole (or his equivalent!

within 30 days of the date shown below.

NATIONAL APPEAL: The appeal by the above-named has been carefully examimed the N 1 Anpei

late Board and the following was ordered by ational Anpe

“a

—AXX_ Affirmation of the previous decision Reasons amended--see attached sheet.

Reversal or modification of the Prev οο⏑f sion as follows:

An institutional hearing during the month of _

A rehearing at the regional appellate eve

A hearing before the entire Board (applicable only Y cases

where the Regional Directors assumed

Original jurisdiction)

All decisions by the National Appellate Board on appeals are final.

— . ̃ ̃—ůt!— — ———

Art 1 9, 1978

1 Oate Notice sent) .

(Reqan specify)

NFB

—— — ester Gna National Appellate Board XXX

(Checki

18

APPENDIX C-1

Re: Sidney F. Brown, Jr. )

Reg. No. 20984-149 April 9, 1975

REASONS: (1) Your offense behavior has been rated as

very high severity. You have a salient factor

score of 7. You have been in custody a total of 19 months.

(2) Guidelines established by the Board for adult cases

which consider the above factors indicate a range of 36-45

months to be served before release for cases with insti-

tutional program performance and adjustment. After careful

consideration of 2 — factors and information present -

ed, it is found that a decision outside the guidelines at this

consideration does not appear warranted. (3) The offense

behavior consisted of multiple separate offenses. (4) Prior

record shows history of assaultive or violent conduct is pre-

sent demonstrating a potential for assaultive behavior.

RECEIVED

April 11, 1975

Warden’s Office

Federal Correctional Institution

Seagoville, Texas

19

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

FILED: July 25, 1975

SIDNEY F. BROWN, JR.

VS. CIVIL ACTION NO. CA-3-75-0571-C

DAVID C. LUNDGREN, WARDEN,

FEDERAL CORRECTIONAL INSTITUTION

FINDINGS, CONCLUSIONS AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE

Pursuant to the provisions of 28 U.S.C. 636(b), and an

Order of the Court in implementation thereof, the subject

cause has previously been referred to the United States

Magistrate. The findings, conclusions and recommendation

of ba Magistrate, as evidenced by his signature thereto, are

as follows:

FINDINGS AND CONCLUSIONS:

Sidney F. Brown, Jr.. hereinafter called applicant, is pre-

sently in custody of the Attorney General of the United

States and confined in the ville Correctional Institution

in this district. He contends that the Board of Parole failed

to follow its published guidelines in considering his applica-

tion for parole. Applicant is held pursuant to a judgment of

conviction and sentence imposed against him in the United

States District Court for the Western District of Louisiana

following his plea of guilty to a two count indictment charg-

ing him with distribution of Amphetamine Sulfate, a Sched.

ule II non-narcotic controlled substance. He advances the

following grounds for relief:

1. H. argues that the Board improperly classified his

offense behavior as very high severity.” He argues that

amphetamines are not “hard drugs” which would place the

offense characteristics into the “very high” category, but

20

rather are soft drugs which would fit the offense into the

“high” offense characteristics. In reply, respondent concedes

that under the examples of offense behaviors listed in Section

2.20, 28 C. F. R., applicant’s offense would fall in the high“

category. He argues, however, that it is the policy of the

Board to consider the full context in which the offense was

committed in making the proper category determination and

that Section 2.20(d), 28 C.F.R., authorizes and justifies the

Board’s decision to classify the offense behavior in appli-

cant’s case as “very high.” The answer reflects that the

classification was predicated on factors other than the

of drug involved. The precise reasons assigned by the Board

in determining the offense behavior were that the offense

behavior consisted of multiple separate offenses and that

applicant had a prior record of assaultive or violent conduct.

His salient factor score was fixed at 7, a determination which

applicant does not challenge. Under the Board’s guidelines,

the average time before release on parole under its —

tion in applicant's case is 3645 months. Section 2.20, 28

C. F. R.

2. Applicant contends that the Board’s action has, in

effect, denied him serious parole consideration altogether.

believe the records reſlect that the Board's action in this

case cannot be determined to be arbitrary or capricious. |

believe the record further reflects that whatever may be the

wisdom of the Board’s decision, the published guidelines

were followed by the Board in arriving at its decision. It is

well settled that eligibility for parole is within the wide

latitude of discretion vested in the Board of Parole. Thomp-

kins v. U. S. Board of Parole, 427 F.2d 222; Sexton v. Wise,

494 F.2d 1176 (5th Cir., May 30, 1974).

RECOMMENDATION:

For the reasons stated hereinabove, I recommend that all

relief sought by applicant be denied.

(Signature Illegibile)

UNITED STATES MAGISTRATE

21

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

FILED:

Jul 25, 1975

Joseph McElroy, Jr., Clerk

By Deputy

SIDNEY F. BROWN, JR.

VS. CIVIL ACTION NO. CA-3- 75-0571 C

DAVID C. LUNDGREN, WARDEN,

FEDERAL CORRECTIONAL INSTITUTION

ORDER

After making an independent review of the pleadings,

files and records in this case, and the findings conclusions

and recommendation of the United States Magistrate, I am of

the opinion that the findings and conclusions of the Magis-

trate are correct and they are adopted as the findings and

conclusions of the Court. The findings and recommenda-

tion of the Magistrate shall be filed herein as a part of the

record in this case.

IT IS, THEREFORE, ORDERED that all relief sought by

applicant is denied.

IT IS FURTHER ORDERED that the Clerk shall transmit

a true copy of this order, together with a true copy of the

Findings, Conclusions and Recommendation of the United

States Magistrate, to applicant and his attorney of record,

and to the United States Attorney, Northern District of

Texas.

SIGNED AND ENTERED this 25th day of July, 1975.

s/ Wm. Taylor, Jr.

UNITED STATES DISTRICT JUDGE

Appendix E

22

BROWN v. LUNDGREN 2342

Sidney F. BROWN, Jr.

Petitioner-Appellant,

V.

David C. LUNDGREN, Warden,

Federal Correctional Institution.

Respondent- Appellee.

No. 75-3184.

United States Court of Appeals,

Fifth Circuit.

March 18, 1976.

An inmate of a federal prison filed a

petition for a writ of habeas corpus,

challenging a decision of the United

States Board of Parole which effectively

denied him eligibility for parole until his

mandatory release date. The United

States District Court for the Northern

District of Texas, at Dallas, William M.

Taylor, Jr., Chief Judge, dismissed the

petition, and the prisoner appealed. The

Court of Appeals, Bell, Circuit Judge,

held, inter alia, that the mere expecta-

tion of parole release while still in other-

wise lawful custody is not so vested as to

result in a “grievous loss” if denied by

the Parole Board, and that the Court

would therefore not consider whether

the procedures of the Parole Board de-

nied constitutional due process.

Affirmed.

Godbold, Circuit Judge, concurred

specially and filed opinion.

1. Constitutional Law = 272

Habeas Corpus @ 113(12)

While parole revocation and prison

discipline are clearly within ambit of due

process clause of Fifth and Fourteenth

Amendments, mere expectation of parole

release while still in otherwise lawful

custody is not so vested as to result in

“grievous loss” if denied by Parole

Board; Court of Appeals, in habeas cor-

pus action instituted by federal prisoner,

therefore would not consider whether

procedures of United States Board of

Parole which effectively denied prisoner

eligibility for parole until his mandatory

release date denied him constitutional.

due process. 28 U.S. C. A. § 2241(c),

(cX3); U.S.C.A.Const. Amends. 5, 14.

2. Habeas Corpus 225.200

In case of prisoner in federal custo-

dy, absolute constitutional claim does not

necessarily vitiate right of prisoner to

review by habeas corpus of denial of his

parole by United States Board of Parole

if such denial causes his custody to be in

violation of statutory “laws of the Unit-

ed States,” as where Board, being sub-

ject to Administrative Procedures Act,

fails to act in accordance with require-

ments of that Act or with its own estab-

lished guidelines. 5 U.S.C.A. §§ 554,

555(e), 701(a), 703; 28 U.S.C.A. § 2241(c).

3. Pardon and Parole 2 7

Merits of decision whether to allow

parole to prisoner is subject to review by

federal court only where decision is al-

leged to be so arbitrary and capricious as

to be beyond discretion of United States

Board of Parole. 5 U.S.C.A. § 701(a).

4. Habeas Corpus = 25.204)

Federal prisoner challenging decision

of United States Board of Parole or

process by which that decision was

reached must show tat action of Board

was so unlawful as to make his custody

in violation of laws of United States;

there must be sufficient nexus between

alleged illegal action and legality of his

custody for habeas corpus to lie. 28 U.S.

C. A. § 224l(c).

5. Pardon and Parole 1

Federal prisoner has no right to re-

lease on parole; he has only statutory

Synopses, Syllabi and Key Number Classification

COPYRIGHT € 1976, by WEST PUBLISHING CO

The Synopses, Syllabi and Key Number Classifi-

cation constitute no part of the opinion of the court.

INDEXED

23

2343 BROWN v. LUNDGREN

right to have Parole Board comply with

Administrative Procedure Act and its

own rules and guidelines; departure by

Board from such standards does not nec-

essarily make prisoner's custody illegal.

5 U.S. C. A. § 708.

6. Pardon and Parole 5

United States Board of Parole did

not abuse its discretion, when adjusting

degree of offense severity for purposes

of determining eligibility for parole, in

giving “very high” offense severity rat-

ing where prisoner's offense did not fall

within example given for that category

or in using same factors to establish sali-

ent factor score and to raise offense’s

severity.

7. Pardon and Parole #7

Where federal prisoner was in-

formed of reasons for higher offense

severity classification and was allowed to

contest such reasons at initial parole

hearing, and where context of prisoner's

federal arrest and information in presen-

tenc. report was considered at same

hearing and were also subject to chal-

lenges by prisoner, later use of such rea-

sons by national board to affirm denial

of parole by local board did not consti-

tute post hoc determination which pris-

oner was never allowed to contest.

Appea! from the United States District

Court for the Northern District of Texas.

Before BELL, GODBOLD and RO-

NEY, Circuit Judges.

BELL, Circuit Judge:

This case involves the extent to which

a federal court may judicially review the

parole release process of the United

States Board of Parole, on the basis of a

petition for writ of habeas corpus

against the warden who has custody of

the prisoner seeking such relief. Appel-

lant Sidney F. Brown, Jr., challenges a

decision of the Parole Board that ef:

tively denies him eligibility for parole

until his mandatory release date. The

Parole Board was not named as a re-

spondent. We find only a narrow juris-

dictional base for such a petition, and

affirm the order of the district court de-

nying relief because Brown has not al-

leged facts that place him on that base.

Appellant Brown was first considered

for parole in February, 1975, after being

confined in the federal system since July

6, 1973. The local parole board denied

him parole on the basis of its guidelines

for the release of adult offenders set

forth at 28 C.F.R. § 2.20 (1975). These

guidelines establish ranges of confine-

ment within which the board will con-

sider an offender as eligible for parole.

The particular range is determined by a

combination of two factors—{1) offense

characteristics: severity of offense be-

havior, and (2) offender characteristics:

parole prognosis (salient factor score).

The salient factor score is mechanical-

ly determined on the basis of nine fac-

tors, such as prior convictions and incar-

cerations, prior drug involvement, family

situation, job expectations and the like.

Brown was given a salient factor s ore

of seyen, which he does not challenge.

The degree of offense severity ranges

from “low” to “greatest” in seven steps.

The guidelines give a number of exam-

ples of offenses that fall within each de-

gree. Brown challenges the determina-

tion of the parole board that his degree

of offense severity was “very high,” as

opposed to “high,” in that he was only

convicted of selling amphetamines, or

* This opinion was concurred in by Judge Bell prior to his resignation from the Court on March

1. 1976.

24

BROWN v. LUNDGREN 2344

“soft” drugs, an offense listed within the

“high” category. The parole board re-

sponds that the guidelines give the board

discretion to place an offender in a sev-

erity degree one step lower or higher

than the degree his offense is listed

within, on the basis of mitigating or ag-

gravating circumstances, which it asserts

are present here. Brown argues that

this was arbitrary and capricious, in that

the factors relied on as aggravating cir-

cumstances have already been considered

in setting the salient factor score, and

were implicitly considered by the district

court in setting sentence.

Before considering the merits of

Brown's contentions, we must first as-

certain upon what jurisdictional base we

sland in looking at his claim. Brown

petitioned the district court for a writ of

habeas corpus on the basis of 28 U.S.C.A.

§ 224l(c), and argues before this court

that the decision of the parole board is

reviewable under the provisions of the

Administrative Procedure Act as well.

In order for the writ of habeas corpus to

extend to a federal prisoner, that prison-

er must be in custody in violation of the

Constitution or laws of the United

States. 28 U.S. C. A. § Dales) Be-

cause Brown has sued only the warden

and not the board, or first task must be

to determine whether Brown has alleged

either a federal constitutional or federal

statutory wrong by the parole board suf-

ficient to make his custody by the ward-

en unlawful under the terms of the ha-

beas corpus statute.

{1} At the constitutional level, there

is a clear distinction between the loss of

a statutory privilege once obtained and

the denial of that same privilege, never

1. In a different context, the Fourth Circuit has

reached a different conclusion. In Bradford v.

Weinstein, 4 Cir, 1975, 519 F.2d 728, cert.

granted, 421 U.S. 998, 95 S.Ct. 2304, 44

given. While the threatened loss of a

privilege may be “grievous” and there-

fore require some degree of procedural

due process protection, see, e. g., Morris-

sey v. Brewer, 1972, 408 U.S. 471, 482, 92

S.Ct. 2593, 38 L. Ed. 2d 484, the denial of

that privilege may only be subject to the

procedural demands of the particular en-

abling statute. Thus, while parole revo-

cation and prison discipline are clearly

within the ambit of the Due Process

Clause of the Fifth and Fourteenth

Amendments, the mere expectation of

parole release while still in otherwise

lawful custody is not so vested as to

result in a “grievous loss” if denied by

the parole board. We thus disagree with

the characterization by the Court of Ap-

peals for the District of Columbia of the

denial of parole as a deprivation of “the

valuable features of conditional liberty”

equivalent to the loss involved in parole

revocation that mandates due process

protection. Childs v. United States

Board of Parole, 1974, 167 U.S.App.D.C.

268, 511 F.2d 1270, 1278.

In any context where it is asserted

that constitutional due process is re-

quired, the basic, threshold question is

whether there is a “grievous loss” of ei-

ther a liberty or property interest. If

there is no such loas, taen the second

question of whether the particular chal-

lenged procedure comports with funda-

mental fairness is never reached. In

short, we find that the denial of parole

as distinguished from the revocation of

parole as in Morrissey, supra, is not a

“grievous loas”, and we therefore do not

consider whether the procedures of the

parole board deny constitutional due

process.'

L.Ed.2d 664, 43 U.S.L.W. 3636 (1975), the

court declined to follow the reasoning ex-

pressed by this court in the en banc decision

in Scarpa v. United States Board of Parole, 5

25

2345 BROWN v. LUNDGREN

[2] In a federal custody situation,

however, the absence of a constitutional

claim does not necessarily vitiate the

right of the prisoner to review by habeas

corpus of the denial of his parole by the

Board, if such denial causes his custody

to be in violation of the statutory “laws

of the United States.” In particular, if

the parole board is subject to the re-

quirements of the Administrative Proce-

dure Act, then its procedures must com-

port with those required by the Act. A

number of other circuits have found that

the parole board is in fact subject to the

Administrative Procedure Act, insofar as

the board is required to give reasons to

the prisoner for the denial of his parole.

See King v. United States, 7 Cir., 1974,

492 F.2d 1887; Mower v. Britton, 10 Cir.,

1974, 504 F.2d 396. But see Childs v.

United States Board of Parole, supra at

1281-85 (finds statement of reasons con-

stitutionally required). And, to the ex-

tent that the parole board establishes

guidelines or procedures under the APA,

the Board is as controlled by those rules

and procedures as any statutory law.

See United States v. Joseph G. Moretti,

Cir 1973, 477 d 278, vacated for considera-

tion of mootness, 1973, 414 U.S. 809, 94 S.Ct.

79, 38 L.Ed.2d 44, dismissed as moot, 5 Ci,

1973, 501 F.2d 992.

2. 5 U.S.CA. § 703 provides, in pertinent part:

The form of proceeding for judicial review is

the special statutory review proceeding rele-

vant to the subject matter in a court specified

by statute or, in the absence or inadequacy

thereof, any applicable form of legal action,

including actions for declaratory judgments or

writs of prohibitory or mandatory injunction

or habeas corpus, in a court of competent jur-

isdiction.

3. A number of decisions of this court have

reviewed the merits of district court decisions

that have entertained petitions for habeas cor-

pus by prisoners denied parole by the board or

aggrieved by other parole board decisions.

Calabro v. United States Board of Parole, 5

Cir, 1975, 52. F.2d 660, Sexton v. Wise, 5

Inc, 5 Cir., 1978, 478 F.2d 418, 425. Pa-

cific Molasses Co. v. FTC, 5 Cir., 1966,

356 F.2d 386, 389-90.

Where a prisoner asserts the failure of

the board to comply with the APA or its

own guidelines or rules as a basis for a

writ of habeas corpus, his petition be-

comes difficult to distinguish from a sim-

ple direct review of the board's decision

under the terms of the APA itself. The

APA itself expressly authorizes the re-

view of agency action by any applicable

form of legal action (absent a special

statutory method of review) including a

writ of habeas corpus“ The pre-APA

law of this circuit, however, is that habe-

as corpus, because of the discretion vest-

ed in the Board of Parole, is not an

available remedy for a prisoner seeking

to challenge a denial of parole by the

board“ See Goldsmith v. Aderholt, 5

Cir., 1980, 44 F.2d 166. Because Gold-

smith was decided prior to the enactment

of the APA, we deem it necessary to

consider whether that decision has been

modified in any way by the act of Con-

‘

gress.

Cir., 1974, 404 F.2d 1176; Gorham v. Richard.

son, 5 Cir, 1973, 483 F.2d 71; Buchanan v.

Clark, 5 Cir., 1971, 446 F.2d 1379. In each

a

:

2

Z

:

kal

i

:

83 «&

APA. See, Pickus v. United States Board of

Parole, 1974, 165 U.S.App.D.C. 284, 507 F.2d

1107; Mower v. Britton, 10 Cir., supra; King

v. United States, 7 Cir, supra. The Board is

an “agency” within the meaning of the APA,

26

BROWN v. LUNDGREN 2¹6

{3} The primary limitation on judicial

review under the APA is contained in 5

U.S.C.A. § 701(a).§ In particular, that

clause limits the applicability of the

APA to the extent that “agency action is

committed to agency discretion by law.”

The federal courts have always con-

sidered the parole board to be vested

with broad discretion in deciding wheth-

er to grant a parole. See Calabro v.

United States Board of Parole, 5 Cir.,

1975, 525 F.2d 660, 661; Tarlton v. Clark,

5 Cir., 1971, 441 F.2d 384, 385. Thus, the

merits of the decision whether to allow

parole to a prisoner is subject to review

by a federal court only where the deci-

sion is alleged to be so arbitrary and

capricious as to be beyond that discre-

tion. This is not inconsistent with Gold-

smith, which assumed arbitrary action ar-

guendo.

On the other hand, the process by

which the board reaches that decision is

more readily subject to judicial review,

where the board does not comply either

with the APA or with its own rules.

Such review in no way considers the

merits of the Board's decision and is lim-

ited to a consideration of those parts of

the APA held to be applicable to the

Board. For example, in King v. United

States, 7 Cir., supra, the requirement

that written reasons be given for a deni-

al of parole was based on 5 U.S. C. A.

§ 555(e) only. The court in King did not

hold that all provisions of the APA ap-

plied to the Board and was therefore

consistent with Hyser v. Reed, 1968, 115

U.S. App. D.C. 254, 318 F.2d 225, 236-37,

in which Chief Justice (then Judge)

and the prisoner is sufficiently “aggrieved” to

give him standing to seek review of the

Board's decision, even though he is not ag

grieved" in any constitutional sense. Because

the Board of Parole was not a respondent in

this case, we do not reach this question

Burger held that the parole release devi-

sion was not an “adjudication” subject to

the procedural requirements of 5 U.S.

C. A. § 554, thereby not requiring a for-

mal hearing by the board.

(4,5) In either case, a prisoner chal-

lenging the decision of the board or the

process by which that decision was

reached must show that the action of the

board was so unlawful as to make his

custody in violation of the laws of the

United States. There must be a suffi-

cient nexus between the allegedly illegal

action and the legality of his custody for

habeas corpus to lie. A prisoner has no

right to release on parole; he has only a

statutory right to have the board comply

with the APA and its own rules and

guidelines. A departure by the board

does not necessarily make his custody il-

legal. )

In this case, Brown asserts several

grounds in support of his contention that

he is illegally being denied parole. He

argues that his being given a “very

high” offense severity was arbitrary and

capricious in that his offense did not fall

within the examples given for that cate-

gory. He further suggests that, even if

the parole board may in some cases

depart from those examples, the use of

the same factors to establish a salient

factor score and to raise the offense sev-

erity is also arbitrary and capricious.

Finally, he argues that the reasons ulti-

mately given by the national board to

affirm the denial of parole by the local

board were post hoc determinations that

he was never allowed to contest.

5. 5 U.S.C.A. § 701(a) provides:

(a) This chapter applies, according to the pro-

visions thereof, except to the extent that

(1) statutes preclude judicial review; or

(2) agency action is committed to agen-

cy discretion by law.

27

2347 BROWN v. LUNDGREN

{6} Given the broad range of discre-

tion vested in the parole board, Brown's

first two contentions are without merit.

The board's own guidelines allow it to

take into consideration aggravating cir-

cumstances in setting the degree of of-

fense severity. Such an adjustment

based on the individual circumstances of

his case clearly falls within the board's

discretion. This is equally true of the

use of those factors for more than one

purpose. We hold that the parole board

may, within its discretion, consider such

matters in adjusting the degree of of-

fense severity in particular cases. See

also Lupo v. Norton, D.Conn., 1974, 371

F.Supp. 156.

71 There would be some merit in

Brown's third contention had he never

been given an opportunity to contest the

factors asserted by the parole board to

justify the “very high” classification.

See Grattan v. Sigler, 9 Cir., 1975, 525

F.2d 329, 381. The record shows, how-

ever, that Brown was in fact informed

of the reasons subsequently used for the

higher classification at the initial parole

hearing and was allowed to contest them

at that time. The context of his federal

arrest and the information in the presen-

tence report were considered at the same

hearing and were also subject to chal-

lenges by him.

In sum, Brown has alleged nothing

that would make his custody by the

warden in violation of the Constitution

or laws of the United States. The order

of the district court denying relief is

Affirmed.

GODBOLD, Circuit Judge (specially

concurring).

If I were free to do so I would follow

Childs v. United States Board of Parole,

167 U.S. App. D.C. 268, 511 F.2d 1270,

1278 (1974), and Bradford v. Weinstein,

519 F.2d 728 (CA4), cert. granted, 421

U.S. 998, 96 S.Ct. 2304, 44 L.Ed.2d 664,

48 U.S.L.W. 3636 (June 2, 1974), which

hold that procedures of the parole board

relating to consideration of a prisoner

for parole are subject to the demands of

due process just as procedures relating

to parole revocation. This is the position

which I took as one of the dissenters in

Scarpa v. United States Board of Parole,

477 F.2d 278 (CAS), vacated for consider-

ation of mootness, 414 U.S. 809, 94 S.Ct.

79, 38 L.Ed.2d 44 (1973), dismissed as

moot, 501 F.2d 992 (CA5, 1978). As

Judge Winter pointed out, writing for

the Fourth Circuit in Bradford, the

right-privilege distinction, which is cen-

tral to Judge Bell's conclusion on this

matter, has now been eradicated.’

I feel, however, that I am bound, al-

beit tenuously, by the cryptic decision in

Sexton v. Wise, 494 F.2d 1176 (CAS,

1974), which, in a single sentence and

without discussion or citation of authori-

ty, appears to hold that due process pro-

tections do not apply until after parole

has been granted.

Without reservation I agree with the

majority with respect to the availability

of review by habeas where a prisoner is

held “in custody in violation of the Con-

stitution or laws of the United States”,

and with the holding on the merits of

such review in this instance directed to

the statutory “laws of the United

States”.

Adm. Office. U.S Courts— West Publishing Comnanv Saint Paul. Minn

F

Appendix Appendix G

20 RULES AND REGULATIONS

RULES AND REGULATIONS 45227

Dur Facros Bocas The Regional Director and each Na-

2 r Nectster “oe tional Director shall have one vote and

( tor decttenmaking, everage town! time sarved hetere rehease (inehiding jail lime )| N ——— oO — 1 de based upon the con-

Oftendes herestertation jarvis (rogmaste — — sewn) at pee Aan et — n currence of two votes.

. covets of eft tehavter Pan 45 A — — 50 2.23 Appeal of hearing panel decision,

en eee ewe wo 1 . . & (a) A prisoner may file with the re-

— No prior incarcerations (adult or juveniie) — 9 sponsible Regional Director a written ap-

| — — by ne er a 9 — III !

„ — 222 Three or more prior incarcerat = panel or a ision under 1 gran

— nbn ‘weeny le Pomme | 6 6 10 me...c. 8t0 Imo... Wte Ime... Ite ime t — — — — . deny parole or to revoke man-

Waltewsy WN — Age at Gret commitment (adult or juvenile) 18 yeare of older = 1 y+ ay — This “anneal must be

ae — LN ARE 2 filed on 0 form provided for that purpese

— — taveive auto theft ei within thirty days from the date of entry

min ˙· Q ⁰ð——2 Q considered by the Regional Director who

“Ve te 19 mace, nen en to a ee Never had parole revoked or been committed for new offense while on — — n

1 appellate hearing, reverse the decision,

c //

No bistory of herotn, cocaine, or barbiturate dependence = t date of parole. Reversal of a decision or

Otherwise = 0 the modification of such a decision by

| eee — — IZ — © more man one hundred eighty days,

Mas completed 12th grade or received OED | | whether based upon the record or follow-

Otherwus o ing a regional appellate hearing, shall re-

% ²˙ — —— 3 quire the concurrence of two out of three

Verified employment (or full-time school attendance) for s total of a' least Regional Directors. Appellate decisions

6 months during the last 2 years ip the community = 1 requiring a second or additional vote

tem 1 — 9 mall be referred to other Regional Di-

ter Peer TT TTT TTT TTTTITTTTTTTTTTT „„

ö Releure plan to live with spouse and or children 1 | as establishert

— Otherwise». 0 (b> onal appellate hearings shall

: Bee 4 oe... BO Bee... Be me... Men me 5 vous ‘Sieestncetenenncconsscessosnmanenaeees — tt sco teenporn 2) be held at the — office — =

x sidered. cisions relative to the granting or denial Regional Director. Attorneys, relatives

62.2) Reports cow — e le and revocation or and other interested parties who wish to

— Decisions as to whether @ parole shall roetnstatewent of parcie or mandatory appear must submit a written request to

on the basis application, if any, ( Hearing shall function lationship to the prisoner and the gen-

Tat ery “(ei hb to tie aaa submitted by the prisoner, together with , two-man panels and the concurrence erel nature of the information they wish

Dll. | the classification study and all reporte of eh "examiners shall be required for to present. The Regional Director shall

n assembled by all the services which shall their Gecision. In the event of a split determine if the requested appearances

2 S decision by the panel, the will be permitted. The prisoner shall not

larcen beaslement regiona) Administrative Hearing - appear

Tettemuin = | renorts by the prosecution oMcers, Te iner shall cast the deciding vote ten If no appeal ts filed within thirty

Counterfeit rurreney e $20,000 or ports by or for the sentencing court. (% when a hearing examiner panel days of entry of the original decision,

Couniterteting (manuteetaring) ......... — ——— eier proposes to makes decision which falle this decision shall stand as tne final

71 — with tntent to de outside of explicit guidelines parole ision Board.

D Shall have been confined, all records of decision-making 4 1 (d) Appeals under this section may be

Au-. daun eee e dd e ee ee ee social agency contacts, and all corre- —- Lak 4 Foret oe dine based only upon the following grounds

— (8,000 oF more ee spondence and such other records as are ata EK - When an Admins. ( The reasons given for 8 denial or

sion tre”, fe (aw Woo — I rr continuance do not support the decision;

Mann Act (no foree— commercial purposes) be ted denied in particular on 0 pee oe eo 2) There was significant

Orwanived vehicle then eee * AA will any all @ ance the Board’s guidelines be in existence but not known at the time

pre Soe TCL nae — consider an. nay with the concurrence of the Ne- of the hearing.

Mitorgery rend ( to „j. . . able relevant and pertinent information Director modify the date to the

very mos concerning the case. The Board encour- — tn ef ee tain 08.08 Aggest te Natlonal Appellate

aces the submission of such information

hery (weapon or (hreat)..... * interested ( In the event the Administrative

Briss by interested persons. Hearing Examiner is serving as d mem- (a) A prisoner may file 6 written ap-

Waionithas) ie nroht Ine prier conviction $2.22 Communication with the Beard. ber of © hearing esaminer panel off peal of the Regional Director's decision

_ fog oie ot “hart Aruae’ 20 0 90 n Oto mo... to me Attorneys, relatives, or interested par- otherwise cases reqmring his under § 2.26 to the National Appellate

pee ere ties „ personal interview to dis- wetten under paragraphs (b) and (e) Of Board on u form provided for that pur-

| lt fy aa ——————.—:᷑ cue A 8 case with a representative ‘his section will be referred to another pose within thirty days after the entry

* 5 of the Board of Parole must submit a hearing examiner. of the Regional Director's written dect-

2 written request to the appropriate re- § 2.24 Review of panel ten by the sion. The National Appellate Board may,

Aggravotet bieny (og. solbery, corual ext. apere gional office setting forth the nature of Regional Director and the National the concurrence of two members,

— H the information to be discussed. Buch Directors. alarm, modify, or reverse the decision, or

“Hard drugs” (possesion with intent to personal interview may be conducted by A Regional Director may review the order a rehearing at the institutional or

cee had anes. een AP }( Greater than chove-_hewever, cpediiie ranees are net given Gus staff personnel in the regional offices. decision of any examiner panel and refer regional level. *

one ———b.ͤ eee posible within the category.) Personal interviews, however, shall not this decision, prior to written notification (b) The bases for such appeal shall

— „ — 20000. . be held by an examiner or member of to the prisoner, with his recommendation the same as for « regional appeal as set

fe frurnieie errr the Board, except under the Board's and vote to the National Directors for forth in § 2.25(d). However, any matter

NOTES @ppeals procedures. reconsideration and any action deemed not on a regional level appeal may

Written notice of this re- not be raised om appeal to the National

rg rt. wywe quud lustitutions anders and preva fertermanre. on 62.23 Delegation to hearing examiners. action shall be mailed or Appellate Board.

eee. ing examiners the authority to make de- working days of the date of the hearing. Board shall be final.

oN en oer behaving Inenived r 1 offenses, Ube severity level may be increased.

Mant Sgr b c amps woot Laneou a ond epee pte eet

* 5 _ FEOGRAL REGISTER, VOL. 99, NO. 252—TUESDAY, DECEMBER 31, 1974

FEDERAL REGISTER, VOL. 39, NO, 252-—TUBSDAY, DECEMBER 31, 1974

rrr 2aA fi

Form Rea

(Rev. 10/73)

Quideline Evaluation Worksheet

Case Name Sidney Franklin Brown fegister wumber 20984-149

Salient Factors:

Item a0 ee

No prior convictions (adult or juvenile) © 2

One or two prior convictions « 1

Three or more prior convictions « 0

-] bl

Item Be = © «© © kl

*

—

No prior incarcerations (adult or quventle)

One or two prior incarcerations « 1

Three or more prior incarcerations * 0

2

Iten e+ eee ee we mee “eee ee ee eee

Age at first commitment (adult or juvenile) 16 years or

older = 1 ;

Otherwise © 0 (a) 5

U. =) =

* — — 2 2

Item d — — [ͤ (ʃ((G T > > SES

— - »

Commitment offense did not involve auto theft = 1 — ＋ 2 *

Otherwise © 0 tid — 23883

>> 2

Item Eeen eee ee we — m — 2 —— © Y D 8 =

ly YY §25

Never had parole revoked or been committed for a new 1 — 3 3

offense while on parole 1 4 E

*

Otherwise * 0

Iten see @ @ —ꝓ— ——p +h *e—hUchOrhUhrHhUm*

No history of heroin, cocaine, or barbituate dependence = 1

Otherwise * 0

tens UU J’

Has completed i2th grade or received 401

Otherwise * 0

AAA 8 8

Item H# «© © KKK kkñlkk’σl ! ᷑Kkc’—n : 222

Verifies employment (or füllt ide school attendance) for a

total of at least 6 months during last 2 years in the

community © 4

Otherwise * C

Item ij © © © © © #© ck eee = Oe re we ee eee

Release plar to live with spouse and/or children © 1

Ctherwise * 9

Tote) Sceeeeererrk „„ „„ „„ 7