On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civil Nos. 84-0823 and 84-0840)
Before: WEIS and SLOVITER, Circuit Judges, and ZIEGLER, District Judge.*fn*
This is an appeal by a federal prisoner from an order of the district court denying his motion to require the United States Parole Commission to release his from federal custody.
Appellant Roy Harris was convicted on August 2, 1981 of conspiracy to distribute heroin in violation of 21 U.S.C. § 846, possession with intent to distribute heroin in violation of 21 U.S.C. § 841(a)(1), and conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act by aiding and abetting the investment of heroin proceeds into a commercial real estate venture in violation of 18 U.S.C. § 1962(d). Harris was sentenced to 12 years imprisonment and 10 years special parole to be served thereafter.
On June 11, 1984, Harris was provided an Initial Parole Hearing by a Hearing Examiner panel which recommended that Harris be "continued to expiration". The Regional Commissioner agreed, and stated that Harris would have to serve "a range of 100 months" before release. This recommendation was ultimately affirmed by the National Appeals Board.
Shortly after the Initial Parole Hearing, Harris sought writs of habeas corpus and mandamus, arguing that the Parole Commission should have applied the Parole Commission guidelines in existence at the time the defendant committed the crimes rather than those in existence at the time of the parole hearing. The district court, relying on the holding in United States ex rel. Forman v. McCall, No. 81-0553 (Sept. 14, 1984), that the Parole Commission guideline were laws for purposes of ex post facto analysis, directed the Parole Commission to provide Harris with a new hearing and to apply the guidelines that existed at the time of the offense.
Harris was provided a new Initial Parole Hearing on February 13, 1985, in which the Hearing Examiner panel applied the guidelines existing at the time of the offense. The panel recommended service of 66 months before parole. The Regional Commissioner disagreed, believing that Harris should be continued to expiration of his term. Finally, the National Commissioners voted to release Harris after 76 months of service.*fn1
Harris then filed a motion with the district court to direct the Parole Commission to comply with the court's earlier order. Harris argued that the Commission had incorrectly applied the guidelines by the use of "double counting" or employing the same criteria twice. The district court, however, upheld the Parole Commission's decision, and Harris now appeals from the district court's order.*fn2
Following the new parole hearing ordered by the district court, Harris was assigned a Greatest I severity because his offense behavior "involved a managerial role in a conspiracy to possess with intent to distribute more than 50 grams of pure heroin." App. at 10A. His salient factor or offender characteristic score was 10. The guidelines indicated a range of 40 to 52 months to be served before release for offenders with these characteristics and with good institutional adjustment, which Harris also possessed. The final administrative decision was to retain him in custody for 76 months because his offense "was of unusual magnitude in that it involved more than six times the amount of pure heroin required to establish a Greatest One severity rating." App. at 10A.
Harris recognizes that the guidelines expressly permit taking an offender outside the range indicated. Under the regulation applicable at the time of the offense was committed, the guidelines
indicate the customary range of time to be served before release for various combinations of offense (severity) and offender (parole prognosis) characteristics. . . [However] where the circumstances warrant, ...