                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-29-2002

Bushman v. Mendez
Precedential or Non-Precedential:

Docket 1-1488




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Recommended Citation
"Bushman v. Mendez" (2002). 2002 Decisions. Paper 50.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/50


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                             UNREPORTED- NOT PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT

                           NO. 01-1488
                         ________________

                      MICHAEL J. BUSHMAN,

                                     Appellant

                               v.

                     JAKE MENDEZ, Warden
              ____________________________________

         On Appeal From the United States District Court
             For the Middle District of Pennsylvania
                   (D.C. Civ. No. 00-CV-01230)
              District Judge: Honorable Yvette Kane
             _______________________________________


            Submitted Under Third Circuit LAR 34.1(a)
                         November 7, 2001

         Before: ALITO, ROTH AND FUENTES, CIRCUIT JUDGES

                    (Filed: January 29, 2002)



                     _______________________

                             OPINION
                     _______________________

PER CURIAM
     Michael J. Bushman appeals from the District Court order denying his
petition for
a writ of habeas corpus. Bushman's petition challenged the decision of
the United States
Parole Commission, paroling him effective July 8, 2000 from a twenty-five
year sentence
to a non-parolable ten year sentence.
     Bushman argues on appeal that the District Court erred in essentially
four ways:
(1) in finding that an interim parole hearing was not mandated before the
setting of an
effective parole date; (2) in upholding the Commission's finding of an
offense severity
rating of Eight based on alleged distribution of 18.75 kilograms or more
of cocaine; (3) in
finding that the Commission had a rational basis for justifying its
decision more than 48
months above the lower limits of Category Eight guidelines; and (4) in
finding no
unwarranted co-defendant disparity. As Bushman focuses primarily on the
second and
fourth issues, we shall do so as well.
     Bushman also argues that the District Court used the wrong standard
of review.
The District Court correctly stated the standard of review: 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). The
Commission may
not base its decision on inaccurate facts, but it may rely on a variety of
sources for its
facts, including presentence reports, dismissed counts of indictments, and
information in
a separate, dismissed indictment. Campbell v. United States Parole
Commission, 704
F.2d 106, 109-10 (3d Cir. 1983). Bushman argued in his petition that the
Commission's
decision was based on inaccurate facts. The Commission found an offense
severity level
of Eight based on "underlying behavior includ[ing] the distribution of
more than 18.75
kilograms of cocaine." Bushman argues that because the indictment
established only that
he was responsible for 38.5 ounces of cocaine, the Commission had no basis
for its
finding. Bushman argued that the highest amount on which the Commission
should have
based its finding is 14 pounds, or 6363 grams, based on his admission in
the presentence
investigation report (PSI) that he had sold roughly 14 pounds of cocaine.
Bushman
argued that even using the 14 pound figure, the Commission should have
found an
offense severity level of Seven. Bushman argued that the Commission
should have
issued a retroactive parole date based on level Seven, so that the time
served beyond that
lower range could be applied to his non-parolable ten-year sentence.
     In fact, the Commission did have a basis for its finding that Bushman
was
responsible for more than 18.75 kilograms of cocaine. The PSI states in
part that
Bushman distributed "approximately twenty-four pounds of cocaine . . .
between 1983
and 1984 and approximately twenty-four kilograms of cocaine . . . between
1985 and
1987." As Bushman apparently did not challenge these findings before
sentencing, the
Commission was entitled to assume that the facts stated in the PSI were
accurate. United
States ex rel Goldberg v. Warden, 622 F.2d 60, 66 (3d Cir.), cert. denied,
449 U.S. 871
(1980). Our Court has stated:
          In the parole context, Congress has authorized the Commission to
view
     presentence reports, 18 U.S.C.   4207(3) despite the knowledge that
there
     are no formal limitations on their contents, and they may rest on
hearsay
     and contain information bearing no relation whatsoever to the crime
with
     which the defendant is charged.

Goldberg, 622 F.2d at 64. Thus, the District Court properly found that
the Commission
had a rational basis for its offense severity rating.
     As to the codefendant disparity argument, Bushman argues that one of
his
codefendants, who had a criminal history, is already on parole, while he
is still
incarcerated. As we stated in United States ex rel Farese v. Luther, 953
F.2d 49, 54 (3d
Cir. 1992), "While the Commission must obtain and consider the parole
status of
co-defendants, United States Parole Rules and Procedures Manual   3.12-07
(1989), it is
not required to give co-defendants the same offense severity rating. Id.
2.20-09." The
current Manual states, "Unwarranted codefendant disparity" refers to
different parole
decisions for similarly situated offenders where no legitimate reason for
the difference in
decisions exists. It is to be remembered that different decisions for
codefendants are not
necessarily inappropriate."
http://www.usdoj.gov/uspc/ProcedureManual/part1.htm. The
provision then goes on to give various cases in which disparity might be
warranted.
While Bushman is correct in noting that the Commission must follow its own
regulations,
see, e.g., Wilson v. United States Parole Commission, 193 F.3d 195, 200
(3d Cir. 1999),
this is a regulation which gives the Commission a great deal of
discretion. The District
Court did not err in upholding the Commission's decision in this regard.
     As to Bushman's allegations regarding the lack of an interim parole
hearing and
the Commission's inadequate basis for its decision 48 months above the
lower limits of
Category Eight guidelines, we will affirm for the reasons stated in the
Report and
Recommendation and adopted by the District Court.
                     UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT

                               NO. 01-1488
                             ________________

                        MICHAEL J. BUSHMAN,

                                         Appellant

                                   v.

                       JAKE MENDEZ, Warden
                ____________________________________

         On Appeal From the United States District Court
             For the Middle District of Pennsylvania
                   (D.C. Civ. No. 00-CV-01230)
              District Judge: Honorable Yvette Kane
             _______________________________________

              Submitted Under Third Circuit LAR 34.1(a)
                           November 7, 2001

         Before: ALITO, ROTH AND FUENTES, CIRCUIT JUDGES


                                JUDGMENT
                        _______________________


     This cause came on to be heard on the record from the United States
District Court
for the Middle District of Pennsylvania and was submitted pursuant to
Third Circuit LAR
34.1(a). On consideration whereof, it is now here
     ORDERED AND ADJUDGED by this court that the judgment of the District
Court entered February 1, 2001 be and the same is hereby affirmed. All of
the above in


No. 01-1488
Page 2


accordance with the opinion of this Court.

                                   ATTEST:

                                    Clerk

DATED: January 29,    2002
