                IN THE UNITED STATES COURT OF APPEALS

                        FOR THE FIFTH CIRCUIT

                        _____________________

                             No. 99-60775
                           Summary Calendar
                        _____________________



JUAN ENRIQUE APONTE,


                                                              Petitioner,

                                  versus

UNITED STATES PAROLE COMMISSION,

                                                      Respondent.
_________________________________________________________________

      Appeal from the United States District Court for the
                    Northern District of Texas
                        USDC No. 18USC4106A
_________________________________________________________________
                           June 30, 2000
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     The appellant, Juan Enrique Aponte, seeks review of the United

States Parole Commission’s determination of his release date for

transporting cocaine in Mexico.      Specifically, Aponte argues that

the Parole Commission impermissibly considered his socioeconomic

status in determining his release date.              Consequently, Aponte

asserts,   because   such   a   consideration   is    “forbidden   by   the

sentencing guidelines,” he is entitled to a redetermination of his

release date.   Finding that the Parole Commission did not consider


     *
      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this opinion should not be published and is not precedent except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.
Aponte’s socioeconomic status in determining his release date,

Aponte’s request for a redetermination is denied.

                                      I

      Aponte, an American citizen, was convicted in the First

District Court in San Luis Potosi, San Luis Potosi, Mexico, of

transporting 12 kilograms of cocaine.            He was sentenced to 165

months imprisonment.         Pursuant to a treaty between the United

States and Mexico, Aponte was transferred to the United States to

serve his prison sentence.       Upon arrival in the United States, the

United States Parole Commission was required to determine his

release date.    See 18 U.S.C. § 4106A(b)(1)(A) (West 1999).           After

a   hearing   before   a   Parole   Commission   examiner,    the   examiner

recommended that Aponte be released after serving a prison term of

135   months.1    In   the   examiner’s   written   hearing    summary,   he

enumerated the reasons he believed supported a prison term of 135

months:

      A decision at the top of the applicable guideline range
      is found warranted because you transported 12 kilograms
      of cocaine, an amount at the upper end of the 5-15
      kilogram range in the sentencing guidelines. A penalty
      that proportionally reflects the relative seriousness of
      the offense is therefore in order. Further, you blamed
      this behavior on others, and your overall record

      1
      Specifically, the examiner determined that the base offense
level was 32, see U.S.S.G. § 2D1.1(a)(3) (1999), and that Aponte’s
Criminal History Category was a II based on his two prior
convictions for criminal assault. The examiner also determined that
Aponte was entitled to a two-level reduction for accepting
responsibility for his actions. Thus, the examiner determined the
offense level to be 30, necessitating a sentence between 108 and
135 months.




                                      2
     (including your record of domestic violence and lack of
     a solid wage-earning history) indicates that a more
     lenient penalty would fail to afford adequate deterrence
     to criminal conduct of a similar nature in the future.


     The hearing examiner’s recommendation was first reviewed by

the Parole Commission’s Office of General Counsel.      The legal

office attorney assigned to the case agreed with the examiner,

stating that the relevant factors including Aponte’s evidence of

his willingness to blame others, his history of domestic violence,

and his lack of sufficient wage earning capacity to keep him from

going after “easy money,” necessitated a sentence at the upper end

of the guidelines.2    Second, the examiner’s recommendation was

reviewed by a second hearing examiner.     This examiner likewise

agreed   with   the   recommendation.     Thus,   the   sentencing

recommendation was forwarded to the Parole Commission.     See 28

C.F.R. § 2.68(h)(6) (1999).


    2
     Specifically, in a document entitled “Legal Office Review of
Transfer Treaty Case,” the legal office attorney stated:

     [T]his offender seems to have the background and
     personality type to be almost a more serious risk for
     renewed drug involvement than his Criminal History
     Category would indicate. Relevant factors include, his
     evident willingness to blame others, his history of
     domestic violence, and the lack of sufficient wage
     earning capacity to keep him from again going for easy
     money. (There is only Aponte’s unverified claim to have
     worked ten years in an auto repair garage for minimum
     wage, an obviously marginal job to which he proposes to
     return. This is not a promising outlook.) A departure
     is not warranted, but the risk of an economically
     marginal, aggressively impulsive man going back into the
     drug trade would seem to be relatively high.




                                3
      The Parole Commission, accepting the recommendation of the

examiners, imposed a release date of June 9, 2009.                In support of

this decision, the Commission stated:

      You transported 12 kilograms of cocaine, an amount at the

      upper end of the 5-15 kilogram range in the sentencing

      guidelines.      A penalty that proportionally reflected the

      relative seriousness of the offense is therefore in

      order.    Further, you blamed this behavior on others, and

      your overall record (including you record of domestic

      violence   and     lack   of    a   solid   wage-earning    history)

      indicates that a more lenient penalty would fail to

      afford adequate deterrence to criminal conduct of a

      similar nature in the future.



      Aponte filed a timely notice of appeal of this sentence

determination with our court.

                                          II

      Aponte is before our court today seeking a redetermination of

his   release    date.      He       argues    that   he   is   entitled   to   a

redetermination of his sentence because the Parole Commission

“illegally” considered his socioeconomic status in determining his

release date.      See 28 U.S.C. § 994(d) (West 1999)(stating that

“[t]he Commission shall assure that the guidelines and policy

statements are entirely neutral as to . . . socioeconomic status of

offenders”); see also U.S.S.G. § 5H1.10 (1999)(stating the same);




                                          4
United States v. Burch, 873 F.2d 765, 768-69 (5th Cir. 1989).

Specifically, Aponte argues he is “being punished more severely

because   of   his   socioeconomic   status.”   In   support   of   this

contention, Aponte points to various written comments made by

members of the Parole Commission who reviewed his case regarding

his past employment history and his future wage-earning capacity.

     After reviewing the statements relied on by Aponte in support

of his claim, we hold that the Parole Commission did not consider

Aponte’s socioeconomic status in determining his release date.3       As

noted by Aponte in his reply brief, “a defendant’s employment

history may be an appropriate consideration in determining his

     3
      As noted by the D.C. Circuit in United States v. Lopez, 938
F.2d 1293 (D.C. Cir. 1991), “socioeconomic” status refers to “an
individual’s status in society as determined by objective criteria
such as education, income, and employment; it does not refer to the
particulars of an individual life.” Id. at 1297 (emphasis added).
The Lopez court went on to state: “[W]hether one is worse off or
better off, privileged or underprivileged, rich or poor, should not
be relevant in determining one’s sentence.”        Id.   (citations
omitted).
     In the case at bar, the Parole Commission did not sentence
Aponte to a longer prison term based on an objective set of
criteria used to determine his standing (class) in society.
Rather,    the   Commission    considered    Aponte’s    particular
characteristics--including his employment history--in crafting a
sentence that would deter him from returning to a life of crime.
Compare United States v. Stout, 32 F.3d 901, 903 (5th Cir.
1994)(stating that it was improper for the sentencing court to
consider the defendant’s affluent lifestyle and his 20 years of
service as a judge in determining his sentence), with United States
v. Tsosie, 14 F.3d 1438, 1441-42 (10th Cir. 1994)(stating that
defendant “employment history” and history of providing “economic
support [for] his family” were relevant factors supporting the
sentencing court’s downward departure based on its belief that the
defendant’s actions were “aberrational”); United States v.
Jagmohan, 909 F.2d 61, 65 (2d Cir. 1990)(stating the defendant’s
“employment record” supported a downward departure).




                                     5
sentence within the guideline range.”               See 18 U.S.C. § 3661 (West

1999)(stating the general proposition that “[n]o limitation shall

be placed on the information concerning the background, character,

and conduct of a person convicted of an offense which a court of

the United States may receive and consider for the purpose of

imposing an appropriate sentence”);               U.S.S.G. § 1B1.4 (1999).          In

the    case    at   bar,    the   Commission,     in    an   attempt   to   craft    a

punishment to deter Aponte from committing future criminal acts,

considered numerous relevant factors--including his job skills and

his potential to gain future employment.

       In addition to Aponte’s employment history, the Commission

considered      the     amount    of    cocaine    he    was    transporting,     his

unwillingness to accept responsibility for his actions, and his

overall       record,      including    his    convictions      for    assault,     in

determining his sentence.              All of these factors were relevant to

the Commission’s attempt to formulate a punishment to deter Aponte

from committing a similar crime following his release.                   See United

States v. James, 46 F.3d 407, 407 (5th Cir. 1995)(citing 18 U.S.C.

§ 3553(a) (West 1999))(stating that in determining a sentence, the

court shall consider: “the nature and circumstances of the offense

and the history and characteristics of the defendant; the need for

punishment,             deterrence ,           public          protection         and

rehabilitation . . . “)(emphasis added);                 United States v. Lara-

Vilasquez, 919 F.2d 946, 956 (5th Cir. 1990)(quoting U.S.S.G.

§     1B1.4     (1999))(stating         that    “the     Sentencing      Guidelines




                                           6
specifically states that in determining the sentence to impose

within the Guideline range, ‘the court may consider, without

limitation, any information concerning the background, character

and conduct of the defendant, unless otherwise prohibited by

law’”).   Consequently, the Commission did not err in considering

Aponte’s employment history and earning capacity in determining his

release date.

                               III

     Aponte’s request for a redetermination of his release date is



                                                      D E N I E D.




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