                                                                                 United States Court of Appeals
                                                                                          Fifth Circuit
                                                                                        F I L E D
                      IN THE UNITED STATES COURT OF APPEALS
                                                                                          April 10, 2007
                               FOR THE FIFTH CIRCUIT
                                                                                    Charles R. Fulbruge III
                                 __________________________                                 Clerk
                                        No. 06-60010
                                 __________________________


WILLIAM JOSEPH CALABRIA,
                                                                                           Petitioner,

versus

UNITED STATES PAROLE COMMISSION,
                                                                                         Respondent.

                  ___________________________________________________

                            Petition for Review of an Order of the
                              United States Parole Commission
                                   Register No. 58861-180
                  ___________________________________________________


Before JONES, Chief Judge, HIGGINBOTHAM, and CLEMENT, Circuit Judges.

PER CURIAM:*

         William Joseph Calabria, a United States citizen convicted in a Mexican court of attempted

murder and transferred to the United States to serve his sentence, petitions for review of his release

date set by the United States Parole Commission (“Parole Commission”). Calabria argues that the

Parole Commission’s release date determination was unreasonable in light of the 18 U.S.C. § 3553(a)

sentencing factors. We disagree and affirm.

                                I. FACTS AND PROCEEDINGS


         *
        Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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       Calabria was sentenced to 85 months of imprisonment by a Mexican court following a

conviction for attempted murder. Pursuant to a prisoner transfer treaty between the United States and

Mexico, he was transferred to a United States prison at which time the Parole Commission was

required to determine a release date and period of supervised release. See 18 U.S.C. §

4106A(b)(1)(A). A Parole Commission examiner conducted a hearing and recommended that

Calabria be released after the expiration of his 85 month sentence imposed in Mexico. A panel of the

Parole Commission agreed and set Calabria’s release date accordingly. The panel also concluded that,

if the Bureau of Prisons releases Calabria early based upon earned good-time credits, Calabria would

be subject to a period of supervised release for the remainder of the 85 months, one condition of

which is Calabria’s participation in a substance abuse treatment program.

                                         II. DISCUSSION

       The Parole Commission must determine the release date for a foreign-sentenced prisoner who

has been transferred to the United States pursuant to a prisoner transfer treaty. Id. In determining a

release date, the Parole Commission does not re-sentence the transferred prisoner; instead, it converts

the foreign sentence into a determination of a release date and a period of supervised release as

though the prisoner had been convicted in a United States district court of a similar offense. See

Navarrete v. U.S. Parole Comm’n, 34 F.3d 316, 319 (5th Cir. 1994). “The combined periods of

imprisonment and supervised release that result from [the Parole Commission’s] determination shall

not exceed the term of imprisonment imposed by the foreign court on that offender.” 18 U.S.C. §

4106A(b)(1)(C); see also Hansen v. U.S. Parole Comm'n, 904 F.2d 306, 310–11 (5th Cir. 1990).

       This court reviews a release date determination made by the Parole Commission as though

it “had been a sentence imposed by the United States district court.” Molano-Garza v. U.S. Parole


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Comm’n, 965 F.2d 20, 23 (5th Cir. 1992) (internal quotation omitted). After Booker, as before, the

application of the sentencing guidelines is reviewed de novo and factual findings are reviewed for

clear error. See United States v. Smith, 440 F.3d 704, 706 (5th Cir. 2006). This court reviews the

ultimate sentencing determination for reasonableness. United States v. Caldwell, 448 F.3d 287, 290

(5th Cir. 2006).

       Calabria maintains that his release date determination was ultimately unreasonable because

the Parole Commission examiner did not properly consider the § 3553(a) factors. In particular,

Calabria asserts that the examiner gave the guidelines range calculation determinative weight and did

not give enough weight to the alleged physical and mental abuse suffered by Calabria while he was

incarcerated in Mexico.

       We disagree. Before recommending a release date that was exactly the length of the sentence

imposed in Mexico, the Parole Commission examiner had properly calculated the guidelines range

to be 120 to 150 months using the most similar U.S. Code offense. A review of the record reveals

that the Parole Commission examiner thought that a downward departure for the abuse Calabria

endured was perhaps warranted. It rejected such a departure, however, not because the guidelines

range was determinative, but because the foreign sentence itself was more than a sufficient departure

from the guidelines range calculation to take the abuse into account. The examiner’s statements at

the hearing reveal that she exercised her discretion under the advisory guidelines in recommending

Calabria’s release date.

       The examiner’s statements and recommendation to the Parole Commission also exhibit her

consideration of the § 3553(a) sentencing factors, including the serious nature of Calabria’s attempted

murder offense, Calabria’s treatment while incarcerated in Mexico, Calabria’s history of substance


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abuse, and Calabria’s need for substance abuse treatment upon release. The examiner properly

calculated the guidelines range, considered the guidelines advisory, and adequately considered the

relevant § 3553(a) factors when formulating her recommendation. Considering the full record, the

determination of Calabria’s release date was reasonable. See Thorpe v. U.S. Parole Comm’n, 902

F.2d 291, 292 (5th Cir. 1990) (per curiam) (rejecting the petitioner’s argument for a downward

departure based upon his health and abuse suffered when the Parole Commission considered the §

3553(a) factors); see also Odili v. U.S. Parole Comm’n, 474 F.3d 1255, 1264–65 (11th Cir. 2007)

(rejecting, post-Booker, a reasonableness challenge to a release date determination where the record

revealed that the hearing examiner considered the § 3553(a) factors, albeit not by name).

       For the foregoing reasons, the Parole Commission’s determination is AFFIRMED.




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