Warden John Hadden and the United States Parole Commission appeal from the district court’s order remanding to the Commission its parole decision regarding John Brett Allen.
Allen v. Hadden,
I.
Pursuant to 18 U.S.C. §§ 4201 et seq. (1982), the Parole Commission has adopted a regulation that provides guidelines for determining when parole normally should be granted. See 28 C.F.R. § 2.20 (1983). The regulation establishes a grid. One coordinate of the grid contains a “salient factor score” which attempts to evaluate a prisoner’s potential risk of violating parole. 1 The other coordinate contains a severity rating which reflects the severity of the prisoner’s underlying offense. 2 Once the Parole Commission has determined the score and rating for a prisoner, the grid provides a suggested range of time that the prisoner should serve before being released on parole.
The time ranges given are not mandatory; they are merely guidelines. “Where the circumstances warrant,” the Commission may choose a presumptive parole date outside the guidelines, either above or below the suggested time range. Id. § 2.20(c). Similarly, while the regulation provides instructions for rating certain offense behaviors, “especially mitigating or aggravating circumstances in a particular case may justify a decision or a severity rating different from that listed.” Id. § 2.20(d). Thus, the regulation attempts to “promote a more consistent exercise of discretion, and enable fairer and more equitable decision-making without removing individual case consideration.” Id. § 2.20(a)
On April 3,1981, the regional parole commissioner reviewing Allen’s case assigned him a presumptive parole date of 78 months based on a severity rating of Greatest II and a salient factor score of 10. The guidelines then in effect suggested a presumptive parole date of 52 months or more under such circumstances. See 28 C.F.R. § 2.20 (1980). Since Allen had served about 22 months by the date of the decision, the order prohibited Allen’s release any time earlier than November 6, 1985.
Allen took an administrative appeal, as a result of which the National Appeals Board *1104 downgraded his severity rating from Greatest II to Greatest I. With the downgraded severity rating and his salient factor score of 10, the guidelines indicated a presumptive parole date between 40 and 52 months. Nevertheless, the Board affirmed the presumptive parole date of 78 months originally issued by the regional commissioner. The Board set forth a number of aggravating factors which it felt justified going above the guidelines.
Allen then brought this habeas corpus petition in federal district court under 28 U.S.C. § 2241 (1982), alleging inter alia that in going above the guidelines, the Parole Commission had used as aggravating factors the same facts that it had used to determine his offense severity rating and his salient factor score.
See Allen v. Hadden,
“[n]one of the factors used to determine offense severity or petitioner’s salient factor score shall also be used as justification for making a parole determination outside of the guidelines____ [T]he respondents shall make a determination of petitioner’s parole status ... within sixty (60) days of the date of this order. If such a determination is not made within this time, the petitioner may petition this court for further appropriate relief. This court will therefore retain jurisdiction to issue any orders that shall be necessary in the future.”
Id. at 600.
Respondents initially appealed the order, but they dismissed the appeal when the Parole Commission issued a new Notice of Action on June 4, 1982, which established a presumptive parole date of 60 months. Allen’s salient factor score remained 10, but his severity rating was further downgraded from Greatest I to Very High for his underlying offense. Additionally, the Commission factored in Allen’s escape and absence from a federal prison for more than seven days. Although the combined guideline range for such date was 32 to 48 months, the Commission chose to go above the guidelines. Allen returned to the district court, which ruled that the Commission had failed to follow the court’s earlier order by again using the same factors both to determine Allen’s severity rating and to go above the guidelines.
See Allen II,
II.
This case is controlled by our recent decision in
Sotelo v. Hadden,
We held in Sotelo that the facts relied on for each determination were not the same. Obviously, some relationship exists be *1105 tween Sotelo’s involvement in the distribution of more than fifty grams of pure heroin and the magnitude of the operation. Similarly, Sotelo’s managerial interest and leadership role in the heroin distribution are related factors. That these factors are related, however, does not mean they are the same.
“[TJhere is a great difference between distributing only 50 grams of heroin and distributing 100 pounds of heroin a month, the magnitude of the latter obviously being much greater than that of the former____ Also, a ‘leadership role’ in the distribution scheme is not necessarily identical to the finding that Sotelo also had a ‘managerial’ or ‘proprietary’ interest in the distribution. In short, the reasons given by the Board for going above the guidelines are not the same as the factors relied on by the Board in rating Sotelo’s offense severity.”
Id.
In the present case, the Parole Commission’s June 4, 1982 Notice of Action reads as follows:
“Your offense behavior has been rated as very high severity insofar as it involved importation and possession with intent to distribute quantities of marijuana totaling 3300 pounds. You have a salient factor score of 10. You have been in custody a total of 37 months. Guidelines established by the Commission for adult cases indicate a range of 26 to 36 months imprisonment for cases with good institutional program performance and adjustment.
“You escaped from a federal prison camp and remained absent more than seven days. Guidelines established by the Commission indicate an additional range of 6 to 12 months imprisonment for that conduct.
“After review of all relevant factors and information presented, a decision above the combined guideline range (32 to 48 months) is found to be warranted because you are a poorer parole risk than indicated by your salient factor score. This conclusion is based on (1) your series of three major marijuana offenses over five years, which is indicative of a commitment to a criminal career, and (2) the fact that two of those three offenses were committed while you were on appeal bond from the first conviction.”
Rec., vol. I, at 153-54.
The factors used to determine Allen’s salient factor score are not at issue on appeal. Rather, Allen raises basically the same argument as Sotelo. He contends that the Parole Commission double-counted his three marijuana convictions by using them to arrive at his Very High severity rating and also to justify going above the guidelines. The Parole Commission cumulated his three marijuana convictions in order to reach the total poundage of marijuana used to assign him a Very High offense severity rating. It then used the fact that he had been involved in three separate offenses as one of the aggravating factors justifying going above the guidelines. In our view, this use of the three convictions does not amount to double-counting. On the contrary, an even greater disparity exists between the factors used in this case than we found to exist between the factors used in Sotelo.
The total poundage of marijuana involved in the deals with which Allen was associated provides a measure of the severity of his offenses. However, that this poundage was amassed in three separate transactions is an additional factor which was not directly calculated into Allen’s offense severity determination. A single drug transaction, even involving a substantial quantity, is quite different from continual flouting of the drug laws. The difference is especially apparent in the present case where Allen’s second and third drug offenses occurred after an initial conviction for a serious drug infraction and during the period that Allen was released on an appeal bond. The Commission thus believes that the pattern and timing of the marijuana transactions indicate that Allen is a poorer than usual parole risk.
“Judicial review of Parole Board decisions is narrow. The standard of review of
*1106
action by the Parole Commission is whether the decision is arbitrary and capricious or is an abuse of discretion.”
Dye v. United States Parole Commission,
III.
Allen argues that even if we find
Sotelo
determinative of this case, the Commission is barred from raising the issue by its failure properly to prosecute an appeal from the first ruling of the District Court in
Allen I.
Reply Brief of Petitioner-Appellee at 15. We disagree, because the district court’s first decision was not a final order. A district court’s duty in entertaining an application for a writ of habeas corpus is to “summarily hear and determine the facts, and dispose of the matter as law and justice require.” 28 U.S.C. § 2243 (1982);
see Browder v. Director, Department of Corrections,
The district court’s order in
Allen I
did not state that it would grant Allen’s petition. Rather, it ordered the Parole Commission to redetermine Allen’s parole status without double-counting, and said that if the commission failed to comply, Allen could “petition this court for further appropriate relief. This court will therefore retain jurisdiction to issue any orders that shall be necessary in the future.”
Allen I,
Because the district court’s first order was merely collateral, respondents could not have appealed it under 28 U.S.C. § 1291. Nor would it matter that respondents might have been able to take an interlocutory appeal from this first order under 28 U.S.C. § 1292.
3
The right to take an authorized interlocutory appeal is permissive, not mandatory. If no interlocutory appeal is taken, the order remains subject to revision by the trial court, and on appeal from the final judgment the appellate court can determine all matters appropriately raised without regard to the interlocutory decree below.
See Yamamoto v. Omiya,
IV.
Allen also argues that this appeal was mooted by the Parole Commission’s compliance with the district court’s February 1983 decision.
4
This claim is without
*1107
merit. In
Eagles v. United States,
“Our rules recognize the beneficient function of the writ ... by providing that a prisoner to whom the writ has been granted may, pending appeal, be enlarged on a recognizance____ The fact that he has been so enlarged does not render the appeal of the custodian moot. In such a case the release is obtained through the assertion of judicial power. It is the propriety of the exercise of that power which is in issue in the appellate court, whether the prisoner is discharged or remanded to custody. Though the writ has been granted and the prisoner released, the appellate court by what it does is not rendering an opinion and issuing an order which cannot affect the litigants in the case before it____ Affirmance makes the prisoner’s release final and unconditional. Reversal undoes what the habeas corpus court did and makes lawful a resumption of the custody.”
Id.
at 307-08,
Reversed and remanded with directions to dismiss the petition.
Notes
. The salient factor score is derived from an evaluation sheet which considers inter alia the prisoner’s prior convictions and commitments, age, recent commitment-free period, and drug dependence. From this information, the prisoner can score from one to ten. At the time of Allen’s evaluation, a prisoner could score from one to eleven. See 28 C.F.R. § 2.20 (1980). The higher the score, the better are the prospects that the prisoner will not violate his parole.
. The regulation now contains eight categories in the severity rating, numbered one through eight. The more severe the offense committed, the higher the category number. At the time of Allen’s evaluation, however, the severity rating contained only seven categories, classified in order of ascending severity as follows: Low, Low Moderate, Moderate, High, Very High, Greatest I, Greatest II. See 28 C.F.R. § 2.20 (1980).
. We need not decide whether respondents in fact could have pursued an interlocutory appeal from the first order.
. Subsequent to this appeal, the Parole Commission issued a new Notice of Action determining a presumptive parole date of 48 months and stating:
"No departure from the guidelines is found to be warranted within the constraints of the District Court’s order.
*1107 "This decision is made solely to comply with the above order of the United States District Court for the District of Colorado [Allen v. Hadden. No. 81-K-1863 (February 15, 1983) ]. The Commission reserves the right to void this decision if the above court order is reversed.”
Rec., vol. I, at 165-66.