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Brown v. U.S. Parole Commission

United States District Court, D. South Carolina, Greenville Division

October 3, 2018

Lawrence Brown, Petitioner,
v.
U.S. Parole Commission and Bryan Antonelli, Respondents.

          REPORT OF MAGISTRATE JUDGE

          Kevin F. McDonald, United States Magistrate Judge

         This matter is before the court on the respondents' motion for summary judgment (doc. 8). The petitioner, a federal prisoner proceeding pro se, seeks habeas corpus relief pursuant to Title 28, United States Code, Section 2241. Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(c) (D.S.C.), this magistrate judge is authorized to review post-trial petitions for relief and submit findings and recommendations to the district court.

         The respondents filed their motion for summary judgment on May 31, 2018 (doc. 8). On June 1, 2018, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the petitioner was advised of the motion to dismiss and summary judgment procedures and the possible consequences if he failed to adequately respond to the motion (doc. 9). The petitioner requested and received an extension of time through August 1, 2018, in which to file his response (docs. 13, 15). When the petitioner did not timely file his response, the undersigned issued an order on August 2, 2018, giving him through August 22, 2018, to respond and advising him that if he failed to respond the action would be subject to dismissal for failure to prosecute (doc. 17). On August 2, 2018, the Clerk of Court received and filed the petitioner's response in opposition to the motion for summary judgment (doc. 19). On August 13, 2018, the petitioner filed another response in opposition to the motion for summary judgment (doc. 20).

         BACKGROUND

         The petitioner is an inmate currently incarcerated in the Federal Medical Center in Butner, North Carolina (doc. 16). At the time of the filing of his petition, he was incarcerated in the Federal Correctional Institution (“FCI”) Williamsburg in Salters, South Carolina (doc. 1 at 1).[1]

         On August 18, 1987, the United States District Court for the Middle District of North Carolina sentenced the petitioner to a total of 30 years imprisonment for several bank robberies (doc. 8-1 at 5-8; doc. 8-2). Between April 23 and June 15, 1987, the petitioner had robbed four banks near Greensboro, North Carolina using a toy pistol for a total of $43, 832.25 (doc. 8-3).

         On February 11, 1988, the petitioner pled guilty and was sentenced by the State of North Carolina to a ten year term of imprisonment for several common law robberies “to run at the expiration of Federal Sentences now serving” (doc. 8-4).[2]

         On June 16, 1997, the petitioner was released on parole with 7, 305 days remaining on his sentence (doc. 8-5 at 1).

         On July 27, 2000, the United States Probation Office in the Middle District of North Carolina notified the United States Parole Commission (“Commission”) that the petitioner had been arrested by the Federal Bureau of Investigation (“FBI”) on May 24, 2000, and charged with robbing 11 banks between March 2, 1999, and May 24, 2000 (doc. 8-6). The petitioner was indicted on all of the charges in the United States District Court for the Middle District of North Carolina (id.). He pled guilty to all counts, and on December 5, 2000, was sentenced to 235 months imprisonment to be followed by a five year term of supervised release (doc. 8-7).

         On July 23, 2001, the Commission issued a warrant charging a law violation for bank robbery, 11 counts, based on the new charges (doc. 8-8). The warrant was lodged as a detainer on September 12, 2001 (doc. 8-1 at 5). On June 27, 2014, the Commission ordered that the detainer stand (doc. 8-9).

         On June 14, 2017, the petitioner completed his term of imprisonment on the 2000 bank robbery charges and was released to the custody of the Commission's violator warrant/detainer (doc. 8-1 at 4-5).

         On August 16, 2017, a Hearing Examiner found probable cause for the bank robbery charges based on the conviction and prepared a prehearing assessment for the petitioner (doc. 8-10). On September 20, 2017, a Hearing Examiner conducted an institutional revocation hearing (doc. 8-11). The petitioner admitted to the charged violations and said that he committed the robberies because he could not get a job. He said that he used the proceeds from the robberies to start small businesses, including a car wash, flea market, and car lot. The petitioner said that he had taught other inmates, but he had not completed any victim impact programming. He also had not committed any infractions during his 17 years in custody. The Hearing Examiner also considered documents submitted by the petitioner's attorney, including a letter of support, medical records, and an inmate transcript (id. at 1-2). The Hearing Examiner made findings on the 11 robberies charged as law violations and determined the sentencing guideline range to be 78-110 months, based on a category seven offense severity rating and a salient factor score of five (id. at 2). She noted that the petitioner had been in custody for 208 months, which would be credited toward his guidelines, and recommended that the Commission continue his sentence to a presumptive parole on May 23, 2016, after service of 216 months to allow for release planning[3] (id. at 2-3).

         The Executive Reviewer disagreed with the Hearing Examiner's recommended presumptive parole date and recommended a presumptive reparole date of May 23, 2025, after service of 300 months (id. at 3). The Commission agreed with the Executive Reviewer, and on October 10, 2017, issued a notice of action containing an order to revoke parole, forfeit the petitioner's time spent on parole, and to continue to a presumptive parole on May 23, 2025, with special drug aftercare and GPS monitoring as conditions of supervision (doc. 8-12). The Commission included in the notice of action a lengthy recitation of the reasons for the departure (id. at 2). The Commission found the petitioner to be a more serious risk than indicated by the guidelines because of his “history of committing violent robberies and lack of programming to reduce the risk that this will re-occur” (id.). The Commission pointed out that the petitioner was on parole for four bank robberies he committed in 1987 and then, less than six months later, he committed another 11 robberies. The Commission noted also that during his 17 years in prison, he completed only four hours of educational programming and had not completed a victim impact program. The Commission concluded, “In sum, the Commission finds that your history of committing similar violent crimes and lack of programming to address the cause of your underlying behavior demonstrates that you are a high risk to re-offend in a similar manner if released in the near future” (id.).

         The petitioner filed an administrative appeal of the decision to the Commission's National Appeals Board on December 8, 2017 (doc. 8-13). He challenged the upward departure from the guideline range as excessive and unjustified because of the time he had already served in prison, his programming and employment in the institution, and his time spent mentoring younger inmates. The petitioner claimed that the Commission lacked good cause for the decision above the guidelines because it had “double counted” his prior convictions and violation conduct to determine his guideline range and as grounds for a departure. The petitioner also noted that he would be 53 years old upon release and that he has diabetes, high blood pressure, and had recently had surgery for a torn tendon (id. at 5-10).

         On February 15, 2018, the National Appeals Board affirmed the Commission's decision. The Board found the Commission had good cause for the departure, because only six months after the petitioner's release on parole for four bank robberies, he committed 11 new bank robberies. The Board also noted that the meetings and discussions the petitioner led and participated in during the 17 years that he was serving on the new federal sentence did not appear to be a sufficient substitute for the formal programs coordinated by the Bureau of Prisons. The Board also found the petitioner's double counting claim had no merit because the salient factor score does not account for the number or the nature of the offenses he committed, “which instilled fear in [his] victims and which continues to have a lingering effect on their lives.” The Board found that the Commission provided clear ...


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