Petitioners Michael Tramel and James Caudill appeal sentencing determinations issued by the United States Parole Commission pursuant to hearings held at the Metropolitan Correctional Centеr in Miami, Florida, where the petitioners are held.
Petitioners are citizens of the United States. Following their arrest near Cat Cay, Bimini, on a boat carrying bales of marijuana, they were convicted in the Commonwealth of the Bahamas of possession of a dangerous drug with intent to supply. Each was sentenced to four years imprisonment. Pursuant to the Convention on the Transfer of Sentenced Persons, Council of Europe, they subsequently were transferred to the United States to serve their foreign sentences. Under 18 U.S.C. § 4106A(b)(l)(A), the United States Parole Commission (“Commission”) had jurisdiction to determine a release date and a period of supervised release for each prisoner. Specifically, the Commission, as required under subsection (b)(1)(A), considered each prisoner as though he was “convicted in a United States district court of *131 a similar offense.” 18 U.S.C. § 4106A(b)(l)(A). In July 1995, the Commission determined that each petitioner should serve the full term of his 48-month foreign sentence and a six-month term of supervised rеlease.
The Commission examiner found that Tra-méis base offense level was 30. The examiner entered a two-level increase under U.S.S.G. § 2Dl.l(b)(l) because Traméis offense involved a firearm, and a three-level decrease under U.S.S.G. § 3El.l(b) because he accepted responsibility. This placed Tra-méis total offense level at 29. Because Tra-mel had a Criminal History Category of I, his sentencing guidеline range was 87-108 months.
The examiner also found that Caudill’s base offense level was 30. The examiner entered a three-level decrease under U.S.S.G. § 3El.l(b) for acceptance of responsibility, placing Caudill’s total offense level at 27. With a Criminal History Category of II, Caudill’s sentencing guideline range was 78-97 months.
The examiner determined that both petitioners had endured extremely harsh prison conditions in the Bahamas, and beatings by guards that amounted to tortee. Consequently, the examiner concluded that a downward departure from the applicable guideline range was apprоpriate. But the examiner rejected petitioners’ arguments that, in. each case, the foreign sentence of 48 months should be considered the guideline sentence from which the downward deрarture was to be calculated. Concluding that the foreign sentences themselves were more than sufficient departure for the torture claims, the examiner declined to fix release dаtes prior to expiration of the full terms of those sentences.
Contentions of the Parties
Petitioners argue that the hearing examiner and the Commission erred in using the “preliminary” guideline sentence as the baseline from which a downward departure was to be calculated. Because 48 months was the maximum sentence authorized by statute, petitioners argue, 48 months became the guideline sentence under § 5Gl.l(a). In аddition, petitioners contend that the hearing examiner and the Commission should not have relied upon parole guidelines or “policies” to determine the application of a deрarture.
The Commission responds by arguing that it committed no error in using the applicable sentencing guideline range as the basis for determining whether petitioners’ Bahamian prison experiencе warranted a downward departure great enough to justify a release date earlier than 48 months. The Commission also contends that the record in the case does not support petitiоners’ assertion that the hearing examiner resorted to parole or other impermissible agency guidelines in arriving at his recommended decisions.
Discussion
The question of whether the Parole Commission сommitted an error of law by using the applicable sentencing guideline range as the baseline for a downward departure is a question of law to be reviewed
de novo. Molano-Garza v. United States Parole Commission,
When the applicable sеntencing guideline range exceeds the full term of the sentence imposed by a foreign court, a transfer treaty prisoner’s foreign sentence should be treated by the Parole Commission as analogous to a § 5Gl.l(a) “guideline sentence.”
1
See Thorpe v. United States Parole Commission,
When the Commission makes transfer treaty decisions, it is required by § 4106A(b)(l)(B)(I) to considеr any recommendation of the U.S. Probation Office, including any recommendation about the applicable guideline range. The Commission must also consider, pursuant to U.S.S.G. § 5K2.0 and 18 U.S.C. § 3553(b), whether a ground exists for a downward departure “outside the range established by the applicable guideline.” 2 A commonly asserted ground for departure in the case of transfer treaty prisoners is that the prisonеr suffered physical abuse and/or torture while incarcerated in a foreign prison. The Commission agrees that such abuse or torture can be an appropriate basis for a downward departure.
In eases where the foreign sentence is below the applicable guideline range, the Commission has ordered a downward departure substantial enough to justify a release dаte prior to expiration of the full term of the foreign sentence.
See Trevino-Casares v. U.S. Parole Commission,
The record plainly indicates that the hearing exáminer understood'his authority to depart downward from the full term of petitioners’ foreign sentences, but decided against such a departure after giving due regard to the aрplicable guideline range as the measure of the seriousness of petitioners’ crimes. A decision not to depart downward is not reviewable on appeal. 18 U.S.C. § 3742(a).
Finally, we reject petitioners’ contention that the examiner improperly relied on parole guidelines. The records in petitioners’ cases show that the examiner received guidance from the Commission as to the appropriate base point from which to subtract any downward departure the examiner found warranted. This guidance had been given to the examiner prior to the hearings, and included an unpublished decision of the Fifth Circuit Court of Appeals,
Roeder v. U.S. Parole Commission,
*133 Nothing in the record indicates that the examiner considered other guidelines to determine the appropriate depаrture. The examiner explained that his finding was based upon “many of our other awards that [we] have been giving over the years.” (Tramel, R.l-K at 68-69.) The examiner cannot be faulted for being aware of thе Commission’s past practice in similar transfer treaty eases, and for considering that practice as unwritten guidance in his effort to achieve an equitable result. There is no reference in the record to the use or role of any “parole guidelines.”
AFFIRMED.
Notes
. Section 5G1.1(a) states: “Where the statutorily authorized maximum sentence is less than the minimum of the applicable guideline range, the statutorily authorized maximum sentence shall be the guideline sentence.” The commentary to § 5Gl.l(a) clarifies this statement: "For example, if the applicable guideline range is 51-63 months and the maximum sеntence authorized by statute for the offense of conviction is 48 months, the sentence required by the guidelines under subsection (a) is 48 months; a sentence of less than 48 months would be a guideline departure.”
. Section 5K2.0, "Grоunds for Departure (Policy Statement),” states, in part: "Under 18 U.S.C. § 3553(b) the sentencing court may impose a sentence outside the range established by the applicable guideline, if the court finds 'that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.’ ”