                     UNITED STATES COURT OF APPEALS
                          FOR THE FIFTH CIRCUIT

                         _____________________

                              No. 95-10354
                            Summary Calendar
                         _____________________

                                 Joseph Money,

                                                   Petitioner/ Appellant,

                                    VERSUS

                    United States Parole Commission,

                                                    Respondent/ Appellee.

         ____________________________________________________

           Appeal from the United States District Court
                for the Northern District of Texas
                          (4:94-CV-377-Y)
      _____________________________________________________

                            September 26, 1995

Before DAVIS, BARKSDALE and DeMOSS, Circuit Judges.

PER CURIAM:1

     Joseph Money appeals the denial of habeas relief.          We AFFIRM.

                                      I.

     Money, incarcerated at the Federal Medical Center at Fort

Worth,     Texas,   filed    a     habeas    petition,   challenging   the

determination of his presumptive parole date.            He contended that

the Parole Commission's determination, establishing a presumptive

parole date which exceeded his guideline range of 40-52 months,


1
     Local Rule 47.5.1 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that rule, the court has determined
that this opinion should not be published.
should be overturned because he is an exemplary inmate with the

highest possible salient factor score and because his similarly

situated codefendant was given a presumptive parole date within his

guideline range. Money claimed that the Parole Commission violated

its rules and abused its discretion by establishing disparate

presumptive parole dates for Money and his codefendant.

      The Parole Commission's decision to exceed the guideline range

was based upon an aggravating factor -- the amount of drugs

involved exceeded by 22 times the amount of drugs at the lower

threshold     of   the   offense   severity      category.       On    Money's

administrative appeal, the National Appeals Board of the Parole

Commission ordered that Money's presumptive parole date be set at

72   months.2      Although   partial   relief   was   granted    because   of

codefendant     disparity,    further   relief   was   deemed    unwarranted.

According to the Appeals Board, the codefendant's equal culpability

and similar criminal history compelled the conclusion that the

decision in the codefendant's case, which established a presumptive

parole date within the guideline range, was not appropriate.3

      The magistrate judge found that there was evidence in the

record   which      supported    the    Parole    Commission's        decision.

2
     Money was originally sentenced to 12 years (144 months)
imprisonment. The hearing panel recommended that the presumptive
parole date be set at 72 months. The regional commissioner
overruled the panel, recommending that the incarceration continue
to expiration (occurring after 96 months). The National Appeals
Board ruled that the presumptive parole date should be set at 72
months.
3
     Unlike Money, the codefendant had a prior criminal history
which the Commission's analyst characterized as involving arrests
which were "ancient and not of a serious nature."

                                   - 2 -
Therefore, the magistrate judge concluded that Money had failed to

demonstrate that the Parole Commission's decision was unwarranted.

The district court conducted a de novo review and, over Money's

objection, adopted the findings and conclusions of the magistrate

judge and entered judgment denying habeas relief.

                                      II.

     Money contends that the Parole Commission failed to follow its

own rules in setting his presumptive parole date at 72 months, when

his equally culpable codefendant received a presumptive parole date

of 48 months.

     The Parole Commission has "absolute discretion concerning

matters     of   parole",    and    "may    use   all   relevant,     available

information in making parole determinations".                  Maddox v. U.S.

Parole Comm'n, 821 F.2d 997, 999 (5th Cir. 1987).              "The Commission

may take into account any substantial information available to it

in establishing the prisoner's offense severity rating, salient

factor score, and any aggravating or mitigating circumstances,

provided the prisoner is apprised of the information and afforded

an opportunity to respond."         Id. (internal quotations omitted).

     [T]his Court cannot disturb a decision by the Commission
     setting the time for parole release absent a showing that
     the action is flagrant, unwarranted, or unauthorized. So
     long as due process requirements are observed and the
     Commission has acted within its statutory authority, we
     will not usurp the Commission's position as established
     in the statutory scheme enacted by Congress.

Maddox,   821    F.2d   at   1000   (internal     quotations    and   citations

omitted).




                                     - 3 -
     "The Parole Commission guidelines provide instructions for

rating   the   severity   of    various      `offense   behaviors.'        Where

circumstances warrant, a decision outside the guidelines may be

appropriate." Sheary v. U.S. Parole Comm'n, 822 F.2d 556, 558 (5th

Cir. 1987) (citing 28 C.F.R. § 2.20(d)).

     The Parole Commission for "good cause" may go outside its
     guidelines, provided that the prisoner is furnished
     written notice stating with particularity the reasons for
     its determination, including a summary of the information
     relied upon. "[G]ood cause" means substantial reason and
     includes only those grounds put forward by the Commission
     in good faith and which are not arbitrary, irrational,
     unreasonable, irrelevant or capricious. It includes such
     factors as whether . . . the prisoner was involved in an
     offense with an unusual degree of sophistication or
     planning, or has a lengthy prior record, or was part of
     a large scale conspiracy or continuing criminal
     enterprise.

Maddox, 821 F.2d at 1000-01 (footnotes and internal quotations

omitted). "Although the Commission's decisions must have a factual

basis, judicial    review      is   limited   to   whether   there    is   `some

evidence' in the record to support the Commission's decision."

Maddox 821 F.2d at 1000 (footnote and citation omitted).

     Under § 2.20-09, of the U.S. Parole Commission Rules and

Procedures Manual (1995), the term "`[u]nwarranted codefendant

disparity' refers to different parole decisions for similarly

situated offenders where no legitimate reasons for the difference

in decisions exists.        It is to be remembered that different

decisions for codefendants are not necessarily inappropriate."

Example 7, illustrating the application of this section, provides:

     Three codefendants appear equally culpable, have similar
     salient factor scores, have identical sentences, and
     appear   to   have  no   other   relevant   differences.
     Significantly different decisions by the Commission in

                                     - 4 -
      such cases constitute unwarranted disparity and are to be
      avoided. Note: if it appears that the Commission has
      erroneously   granted   unwarranted   leniency   to   one
      codefendant, it is not appropriate to compound such error
      by providing unwarranted leniency to other codefendant
      cases.

Id. (Example 7) (emphasis added); see Sheary, 822 F.2d at 559

(noting Example 7 in case involving disparate sentences); see also

Coleman v. Perrill, 845 F.2d 876, 879 (9th Cir. 1988) (Commission

was   not   bound       by     its   own    regulations     concerning      codefendant

disparity because regulations were merely precatory and, therefore,

failure to follow regulations was not reviewable by court of

appeals).

      In    the    instant         case,    evidence   in    the    record        tends   to

demonstrate        that      the     leniency    accorded    the        codefendant       was

unwarranted. Because Money's offense behavior involved at least 22

times the amount of drugs at the lower threshold of the offense

severity category, the National Appeals Board determined that a

decision above the guidelines was warranted.                    The lower threshold

of offense severity category six was met in offenses involving

200,000 doses of amphetamine.                Money's offense involved 4,536,000

dosage units, and he reaped approximately $750,000 in profits from

the criminal enterprise between 1984 and 1988.                      The Commission's

analyst found that Money and the codefendant were "almost equally

culpable,"        had     identical        guideline   ranges      of     40-52    months,

identical salient factor scores, and similar criminal histories.

Because the codefendant was equally culpable, the Commission's

determination           that       the   codefendant's      parole        decision        was

excessively lenient was not unwarranted; and, accordingly, the

                                             - 5 -
disparate   decision   in   Money's     case   was   not   inappropriate.

Therefore, the district court properly denied habeas relief.

                                 III.

     For the foregoing reasons, the judgment is

                              AFFIRMED.




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