Rаndy T. EDMUNDSON, Appellant, v. C.A. TURNER, Warden, United States Medical Center for Federal Prisoners, Springfield, Missouri; U.S. Parole Commission, Appellees.
No. 91-1280WM
United States Court of Appeals, Eighth Circuit
Jan. 16, 1992
Feb. 20, 1992
954 F.2d 510
Overwhelming authority holds that Caldwell was not given proper warnings. This court settled this issue in 1972. Judge Ross then wrote:
While it is true it is the substance of the warnings, not the form, that is important, Evans v. Swenson, 455 F.2d 291, 293 (8th Cir.1972); Tucker v. United States, 375 F.2d 363, 369 (8th Cir.), cert. denied, 389 U.S. 888, 88 S.Ct. 128, 19 L.Ed.2d 189 (1967), the warnings given must be complete and meaningful to the accused. As stated by the Ninth Circuit, in Smith v. Rhay, 419 F.2d 160, 163 (1969), warnings are inadequate where the accused, although advised he had the right to an attorney, was not advised that “he had the right to the presence of an attorney and that, if he could not afford one, a lawyer could be appointed to represent him prior to any questioning.”
South Dakota v. Long, 465 F.2d 65, 70 (8th Cir.1972).
It is difficult for me to understand how the majority can override, without en banc approval, this clear statement of the law.
I would find as did the experienced magistrate (who held the evidentiary hearing, heard the witnesses and was able to assess the credibility of Caldwell and the officers) that the defendant did not voluntarily, knowingly and intelligently waive his rights to remain silent and to have counsel present before and during the questioning by the police officers.3
I add one other commentary. This case involves the conviction of an eighteen-yeаr-old youth, without any prior criminal experience, who made a serious mistake of judgment. He now faces a ten year prison sentence for his immature judgment. If this sentence is carried out, his life will be ruined. His family is devastated. It is difficult for me to believe Congress by its mandatory minimum penalty condones such punitive sanction to a young lad of eighteen. I wonder if Congress knows the injustice it creates by such laws. A civilized society should protest. The President of the United States should grant clemency. In my twenty-five years as a circuit judge I have never encountered such a miscarriage of justice. This gross injustice further emphasizes why denial of this young man‘s fifth amendment rights should require a reversal of his conviction.
I respectfully dissent.
Earl W. Brown, III, Springfield, Mo. (Jean Paul Braddshaw II, on the brief), for appellees.
Before BEAM, Circuit Judge, HEANEY, Senior Circuit Judge, and LOKEN, Circuit Judge.
LOKEN, Circuit Judge.
Randy T. Edmundson appеals the denial of relief from a decision by the United States Parole Commission that he serve out the seven year sentence he received following his February 1989 conviction on child pornography and weapons charges. Edmundson alleges that the Commission erred in departing from its parole guideline range because this was his second sex crime. The district court1 denied his petition for a writ of habeas corpus. We affirm.
I.
Edmundson is an admitted pedophile. He was convicted in 1982 for molesting several young nieces and served more than two years in state prison. In March 1987, following reports that Edmundson had recently brought “weird” photos involving young girls to a photoprocessing firm, postal authorities sent him an advertisement for “forbidden materials” as part of a broader operation aimed at customers of mail-order child pornography. Edmundson responded, expressing a preference for materials involving pre-teen girls and signing an affidavit that he would not reveal his purchases to any law enforcement agency.
After a one-day bench trial in the Eastern District of Michigan, Edmundson was convicted of knowingly receiving a magazine that visually depicted minors engaging in sexually explicit conduct, in violation of the Child Protection Act of 1984,
After serving seven months of his sentence, Edmundson received an initial parole determination pursuant to the Parole Commission and Reorganizatiоn Act of 1976,
a decision above the guidelines appears warranted because: you are a poorer risk than indicated in your salient factor score in that: this is your second conviction involving a sex crime.
The Commission‘s National Appeals Board affirmed, stating: “The reasons givеn are specific and comply with
Edmundson then filed this petition for habeas corpus, arguing that the Parole Commission had mischaracterized his sentence as one for the sexual exploitation of children; that the Commission violated the “double counting” proscription of Briggs v. U.S. Parole Comm‘n, 736 F.2d 446 (8th Cir.1984), by using his prior conviction to set his salient factor score and to justify the upward departure from its guidelines; and that the Commission violated its own internal rules in determining there was “good cause” for the departure. The district court rejected these arguments, and Edmundson apрeals.
II.
We have limited jurisdiction to review Parole Commission determinations. Congress has expressly declared that the Commission‘s decisions to grant or deny parole are “actions committed to agency discretion for purposes of [the judicial review provisions of the Administrative Procedure Act].”
1. Edmundson is wrong in asserting that the Commission mischaracterized his crime as “sexual exploitation of children.” In their pre-hearing assessment, the parole examiners initially fixed Edmundson‘s offense severity at category five, mistakenly concluding that his crime involved the sexual exploitation of children, as that term is defined for guidelines purposes.
Edmundson also complains because the Commission justified its guidelines departure by characterizing his crime as а “second sex crime,” when it should have recognized that the later offense of being a pornography customer was less serious than his earlier sexual assaults. That issue is clearly beyond our jurisdiction, but we note that the Commission‘s characterization was accurate, whereas Edmundson‘s underlying assertion—that the pornography customer is not engaged in a sex crime—is contrary to congressional intent as well as common sense.
2. The statute provides that the Parole Commission may depart from the guideline range “if it determines there is good cause for so doing,” and if the prisoner is furnished written notice containing a statement of reasons for the decision.
It is clear that the Commission did not engage in the double counting condemned in Briggs. While the fact of Edmundson‘s prior conviction was used in calculating his salient factor score, it was the nature of that conviction—his first sex crime—that was used to justify a departure from the guidelines. This is not double counting under the guidelines. See Walker v. United States, 816 F.2d 1313, 1316 (9th Cir.1987); Castaldo v. U.S. Parole Comm‘n, 725 F.2d 94, 96 (10th Cir.1984); Stroud v. U.S. Parole Comm‘n, 668 F.2d 843, 847 (5th Cir.1982).
3. Edmundson‘s other arguments are clearly without merit. First, he argues that the district court failed to review de novo the magistrate judge‘s report. The district court expressly stated that it made a full review of the files and records in determining that the magistrate judgе‘s findings, conclusions and recommendations were correct. We presume that the review was properly done. Edmundson relies sole
Second, Edmundson claims that the Commission violated its Rules and Procedures Manual in making its decision to depart from the guidelines. However, we have no jurisdiction to review the Commission‘s compliance with its own internal rules. See Caporale, 940 F.2d at 306.
For the foregoing reasons, the decision of the district court is affirmed.
HEANEY, Senior Circuit Judge, dissenting.
I respectfully dissent from that portion of the majority‘s opinion which states that we lack jurisdiction to review the substantive decisions of the Parole Commission. The majority cites Jones v. United States Bureau of Prisons, 903 F.2d 1178 (8th Cir.1990), in support of this statement. Jones is at odds, however, with prior decisions of this court holding that we review Parole Commission decisions for arbitrariness, capriciousness, or abuse of discretion. See Blue v. Lacy, 857 F.2d 479, 480-81 (8th Cir.1988) (per curiam); White v. United States Parole Comm‘n, 856 F.2d 59, 60 (8th Cir.1988) (per curiam); Montgomery v. United States Parole Comm‘n, 838 F.2d 299, 301 (8th Cir.1988) (per curiam); Perry v. United States Parole Comm‘n, 831 F.2d 811, 812 (8th Cir.1987), cert. denied, 485 U.S. 963, 108 S.Ct. 1230, 99 L.Ed.2d 429 (1988). We are bound by these decisions until the court en banc holds otherwise, and Jones, a decision of a panel of this court, cannot overrule them. See Wright v. United States Parole Comm‘n, 948 F.2d 433 (8th Cir.1991) (Heaney, J., dissenting).
Contrary to the assertion of the Jones panel, 903 F.2d at 1182, the question of the existence of our jurisdiction to review Parole Commission decisions did not remain open at the time Jones was decided, but had been implicitly decided each time this court reviewed a Parole Commission decision for abuse of discretion. Accordingly, only the court en banc can determine, contrary to our prior cases, that we lack jurisdiction to review the Parole Commission‘s substantive decisions. See Brown v. First Nat‘l Bank in Lenox, 844 F.2d 580, 582 (8th Cir.) (“[O]ne panel of this Court is not at liberty to overrule an opinion filed by another panel. Only the Court en banc may take suсh a step.“), cert. dismissed, 487 U.S. 1260, 109 S.Ct. 20, 101 L.Ed.2d 971 (1988). Moreover, where two panel opinions conflict, a subsequent panel must follow the earlier precedent. See, e.g., Johnson v. Moral, 843 F.2d 846, 847 (5th Cir.1988).
As the majority concedes, however, we have jurisdiction to review Edmundson‘s claim of double counting regardless of whether Jones’ holding binds this panel. In Caporale v. Gasele, 940 F.2d 305 (8th Cir.1991), the court cited Jones for the proposition that a “federal court is without jurisdiction to review the substantive decisions of the Parole Commission except when the Commission‘s actions violate statutory, regulatory, or constitutional provisions.” Id. at 306 (citing Jones, 903 F.2d at 1183-85). The Caporale court also recognized that double cоunting violates the Parole Act, making such claims reviewable even after Jones. Id. at 307 (citing Briggs v. United States Parole Comm‘n, 736 F.2d 446, 450 (8th Cir.1984)).
I agree that the parole guidelines consider only the fact, and not the nature of, a prior conviction in computing the salient factor score. The similarity of a prior conviction tо the one for which a prisoner is currently incarcerated therefore may constitute good cause for concluding that he is a particularly poor parole risk. See, e.g., Brach v. Nelson, 472 F.Supp. 569, 574 (D.Conn.1979). Consideration of the nature of a prior conviction to justify departing from the parole guidelines thus does not constitute double counting.
Although I believe the tangential similarity of Edmundson‘s sexual molestation conviction to his purchase of child pornography is, at best, marginally adequate to justify the magnitude of the departure in this case, the Commission‘s deсision is not arbi