                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-8-2005

Furnari v. US Parole Comm
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2109




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                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 04-2109
                                     ____________

                              CHRISTOPHER FURNARI,

                                             Appellant

                                            v.

                             U.S. PAROLE COMMISSION;
                             WARDEN FCI ALLENWOOD
                                    ____________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                                 (D.C. No. 03-cv-02046)
                       District Judge: Honorable Malcolm Muir
                                     ____________

                       Submitted Under Third Circuit LAR 34.1(a)
                                   January 27, 2005

       Before: SCIRICA, Chief Judge, RENDELL and FISHER, Circuit Judges.

                                 (Filed : March 8, 2005)
                                      ____________

                              OPINION OF THE COURT
                                   ____________

FISHER, Circuit Judge.

      Appellant Christopher Furnari (“Furnari”), an inmate at a medium security Federal

Correctional Institution, located in Allenwood, Pennsylvania, appeals from the District
Court’s order denying his petition for a writ of habeas corpus under 28 U.S.C. § 2241.

Furnari was convicted of various offenses relating to his involvement in organized crime,

and received a 100-year sentence, consisting of five consecutive 20-year terms and

several additional concurrent terms. We affirm the District Court’s denial of Furnari’s

habeas petition.

                        I. Standard of Review and Governing Law

         In a federal habeas corpus proceeding, this Court exercises plenary review of the

District Court’s legal conclusions. Wilson v. United States Parole Comm’n, 193 F.3d

195, 197 (3d Cir. 1999). As to this Court’s review of the Parole Commission’s factual

findings, “[t]he inquiry is not whether the [Commission’s decision] is supported by the

preponderance of the evidence, or even by substantial evidence; the inquiry is only

whether there is a rational basis in the record for the [Commission’s] conclusions

embodied in its statement of reasons.” Zannino v. Arnold, 531 F.2d 687, 691 (3d Cir.

1976).

         Pursuant to 18 U.S.C. § 4206(a), if an eligible prisoner has substantially complied

with the rules of the institution or institutions to which he has been confined, and if the

Commission, “upon consideration of the nature and circumstances of the offense and the

history and characteristics of the prisoner,” determines (i) that release would not

depreciate the seriousness of the offense or promote disrespect for the law; and (ii) that

release would not jeopardize the public welfare, subject to other limitations contained in



                                               2
this section, the prisoner shall be released. 18 U.S.C. § 4206(a). The Parole Commission

has adopted guidelines for parole release consideration indicating the customary range of

time to be served before release for various combinations of offense (severity) and

offender (parole prognosis) characteristics. 28 C.F.R. § 20(b). The guidelines contain

instructions for the rating of certain offense behaviors; however, where especially

mitigating or aggravating circumstances exist, a decision or severity rating different from

that listed may be justified. Id. § 20(d).

                                       II. Discussion

       The factual background of this action, which is lengthy and complicated, was

thoroughly discussed by the District Court and is known to the parties. Accordingly, we

will focus in this opinion on the rationale for our decision.

       In its March 10, 2004 order, the District Court denied Furnari’s petition for a writ

of habeas corpus. On appeal, Furnari argues that the Parole Commission’s reliance on

conduct other than the offense of his conviction to set the offense severity level violated

the Parole Commission’s rules and Due Process. Specifically, the conduct relied upon

included Furnari’s alleged involvement in murders and an attempted murder due to his

role as a “consigliere” in a crime family.

       The Parole Commission has broad discretion to review materials helpful in

determining whether to release a prisoner on parole. United States ex rel. Goldberg v.

Warden, Allenwood Fed. Prison Camp, 622 F.2d 60, 63 (3d Cir. 1980); see also Fiumara



                                              3
v. O’Brien, 889 F.2d 254, 257-58 (10th Cir. 1990) (holding Parole Commission did not

abuse discretion where it considered evidence of prisoner’s involvement of four murders

for which he was not convicted and denied parole); Hackett v. United States Parole

Comm’n, 851 F.2d 127, 130-31 (6th Cir. 1987) (holding Parole Commission properly

considered victim impact statement, which alleged prisoner raped victim during abduction

for which he was imprisoned, for purposes of parole decision); Maddox v. United States

Parole Comm’n, 821 F.2d 997, 999-1000 (5th Cir. 1987) (noting Parole Commission’s

broad authority in materials it considers for parole decisions, including dismissed counts

of an indictment, hearsay evidence, and allegations of criminal activity for which prisoner

was not even charged); Melvin v. Petrovsky, 720 F.2d 9, 10 (8th Cir. 1983) (finding

Parole Commission not limited to indictment and conviction in determining severity of

offense and can consider other reliable information, including presentence report).

Indeed, Congress has even authorized the Commission to view presentence reports

“despite the knowledge that ‘[t]here are no formal limitations on their contents and they

may rest on hearsay and contain information bearing no relation whatever to the crime

with which the defendant is charged.’” Id. at 64 (citing Gregg v. United States, 394 U.S.

489, 492 (1969)).

       Because the Parole Commission has broad discretion in the materials it can

consider in making parole decisions, the Commission was within its authority in relying

upon conduct other than the offense of Furnari’s conviction, including his alleged



                                             4
involvement in murders and an attempted murder for which he was neither charged nor

convicted. Moreover, the Commission’s reliance upon this conduct did not violate

Furnari’s right to Due Process. Generally, to satisfy Due Process, parole procedures must

provide an opportunity to be heard and a statement of reasons for the Commission’s

decision. See Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 16

(1979). The Commission’s reliance upon Furnari’s alleged involvement in these other

murders and attempted murder did not implicate either of these rights.

       Furnari additionally challenges the Parole Commission’s factual findings with

respect to his alleged involvement in these other murders. This Court’s review of the

Parole Commission’s findings of fact focuses on whether there is a rational basis in the

record for the Commission’s conclusions embodied in its statement of reasons. Zannino,

531 F.2d at 691. Our review of the record assures us that a rational basis in the record

existed for the Commission’s conclusions.

       For these reasons, we will affirm the District Court’s denial of Furnari’s petition

for a writ of habeas corpus.

________________________




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