

                UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT

                                         

No.  96-2358

                    RAFAEL MORENO-MORALES,

                    Petitioner, Appellant,

                              v.

               UNITED STATES PAROLE COMMISSION,

                    Respondent, Appellee.
                                         

                         ERRATA SHEET                                     ERRATA SHEET

          The opinion  of this  court issued  on January  20,
1998, is corrected as follows:

          On the cover page,  the name of the district  court
judge whose  decision we  review is  changed from  "Fusto" to
"Fuste".
[  N  O  T     F  O  R     P  U  B  L  I  C  A  T  I  O  N  ]

                United States Court of Appeals                            United States Court of Appeals
                    For the First Circuit                                For the First Circuit
                                         

No.  96-2358

                    RAFAEL MORENO-MORALES,

                    Petitioner, Appellant,

                              v.

               UNITED STATES PAROLE COMMISSION,

                    Respondent, Appellee.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE DISTRICT OF PUERTO RICO

          [Hon. Jose A. Fuste, U.S. District Judge]                                                              

                                         

                            Before

                    Torruella, Chief Judge,                                                      
                Campbell, Senior Circuit Judge,                                                          
                  and Lynch, Circuit Judge.                                                      

                                         

    Irma R. Valldejuli for appellant.                                  

    Isabel Munoz Acosta,  Assistant U.S. Attorney,  with whom                                   
Guillermo  Gil,  United  States Attorney,  was  on  brief for                          
appellee.

                                         

                       January 20, 1998
                                         

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          Per Curiam.   Rafael  Moreno-Morales  is serving  a                                

thirty year  sentence for convictions of obstructing justice,

giving  false testimony,  suborning  perjury, and  committing

perjury.   After  being denied  parole, he  sought a  writ of

habeas corpus, arguing  that the  Parole Commission  violated

its  own  rules  and  that its  decision  was  arbitrary  and

capricious.  The district court denied relief.  We affirm. 

                              I                                          I

          The  infamous Cerro  Maravilla incident  underlying

the criminal conviction of  Moreno-Morales, a police officer,

has been well described in other opinions.  See, e.g., United                                                                         

States  v. Reveron  Martinez, 836  F.2d 684 (1st  Cir. 1988);                                        

United  States  v.  Moreno-Morales, 815  F.2d  725  (1st Cir.                                              

1987); In re Grand Jury Investigations of the Cerro Maravilla                                                                         

Events, 783 F.2d  20 (1st Cir. 1986).   For present purposes,                  

we sketch the  facts pertinent to the decision  of the Parole

Commission.

          On  July  25,  1978,  members  of  the  "Movimiento

Revolucionario   Armado,"   a  radical   Puerto   Rican  pro-

independence  movement,  attempted  to destroy  a  television

tower at Cerro Maravilla.  The members included Arnaldo Dar o

Rosado, Carlos Soto Arriv , and  a third individual who was a

police informant.   The  Puerto Rico Police  learned of  this

planned  sabotage  through  the informant  and  ambushed  the

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group.    Appellant  Moreno-Morales   was  among  the  police

officers at the scene.  

          After a  shoot-out,  Dar o Rosado  and Soto  Arriv 

surrendered and were  taken into custody.   In custody, while

handcuffed, Dar o Rosado  and Soto Arriv  were  brutalized by

the police.   One police  officer killed Dar o Rosado  with a

shotgun blast to the chest.  A second police officer shot and

wounded Soto Arriv  with  a pistol.  Moreno-Morales took  the

pistol and shot Soto Arriv  again, killing him.

          The police concealed their deeds by rearranging the

scene to  make it seem  the two men  had not been  taken into

custody.  They fabricated a  story that Dar o Rosado and Soto

Arriv  had been killed in a shoot-out while resisting arrest.

Moreno-Morales  and the  other officers  told  this story  to

local district  attorneys investigating the shootings.   When

the  victims' survivors brought a civil rights action against

the  Commonwealth  of  Puerto  Rico  in  federal  court,  the

officers told the same  story in deposition testimony.   They

also  told this story  to a federal  grand jury investigating

the event.  

          In February 1984, after  prolonged investigation, a

federal  grand  jury  returned  indictments  against  Moreno-

Morales  and  he  was convicted  after  trial  of obstructing

justice,  giving  false  testimony,  suborning  perjury,  and

committing perjury.

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          In January  1985, Moreno-Morales was  charged under

Puerto Rico  law with murder  for the deaths of  Dar o Rosado

and Soto  Arriv .   Moreno-Morales was  convicted of  second-

degree murder as to the death of Soto Arriv  and sentenced to

twenty-two  to  thirty  years  in  jail.    That sentence  is

consecutive to his federal sentence.

                              II                                          II

          Moreno-Morales    was    eligible     for    parole

consideration on March 27, 1995.   Under 18 U.S.C.   4208(a),

an initial parole  hearing is to be held,  when feasible, not

later than thirty days prior  to the parole eligibility date.

The Parole Commission  delayed the hearing beyond  the thirty

days until  it obtained  additional information.   By  letter

dated March  8, 1995, the  Parole Commission asked  the Chief

Probation  Officer for  the District  of Puerto  Rico  for an

explanation  of  Moreno-Morales's  involvement in  the  Cerro

Maravilla killings.  The letter explained that the Commission

needed "further information  . . . to conduct  the hearing in

conformity  with  the  Commission procedures."      The Chief

Probation Officer  referred the  matter to  attorneys at  the

Criminal Section  of the Civil Rights Division  of the United

States Department of Justice.   On June 30, 1995, an attorney

from  the Justice  Department  wrote a  letter to  the Parole

Commission explaining Moreno-Morales's role  in the killings.

Moreno-Morales was not copied on the letter.

                             -4-                                          4

          The  Parole  Commission  scheduled Moreno-Morales's

hearing for July 20,  1995.  On July 17, 1995, the Commission

sent a copy of the Justice Department letter to the Bureau of

Prisons with instructions  to disclose the letter  to Moreno-

Morales  but not to furnish a copy of  it to him.  The Bureau

of Prisons did this on July 18, 1995.  

          On July 20, the hearing occurred before one hearing

examiner, as  permitted by  Commission regulations.   See  28                                                                     

C.F.R.   2.13(a).   At the  hearing, Moreno-Morales  admitted

shooting Soto Arriv , saying he did so when he "lost control"

after Soto  Arriv  shot at  him.  Moreno-Morales  also argued

that some witnesses had been  paid by the government to alter

their testimony.  The hearing examiner instructed that a copy

of  the Justice  Department  letter  should  be  provided  to

Moreno-Morales.

          On August 9, 1995, the Commission issued its Notice

of Action denying parole.  The Notice stated:

          Your offense behavior has been rated as a
          Category   Eight   severity   because  it
          involved  murder.   Your  salient  factor
          score (SFS-81) is  10.  You have  been in
          federal confinement  as a result  of your
          behavior  for  a  total  of  124  months.
          Guidelines established by  the Commission
          indicate  a range  of  100+ months  to be
          served before release for cases with good
          institutional   adjustment   and  program
          achievement.     After   review  of   all
          relevant    factors    and    information
          presented a decision more  than 48 months
          above  the  minimum   guidelines  appears
          warranted because  your offense  behavior
          involved   the   following    aggravating

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          factors:   An unarmed person  detained by
          police  and   handcuffed  was   shot  and
          killed.

Although the Notice was issued  on August 9, 1995, the Bureau

of Prisons did not deliver the Notice to Moreno-Morales until

December 8, 1995.  

          On December 15,  1995, Moreno-Morales appealed  the

decision  to the  National Appeals  Board,  arguing that  the

Commission  did not follow correct procedures in deciding his

case   and  that  the  Commission  should  have  granted  him

leniency.  On March 13,  1996, the Board affirmed the hearing

examiner's  decision.   The  Board rejected  Moreno-Morales's

arguments:

          You were  not prejudiced by the fact that
          your initial hearing was held four months
          after  your  completion of  your  minimum
          term.       The   Commission's    current
          regulations   state   that   "an  initial
          hearing shall  be conducted  by a  single
          hearing  examiner  unless   the  Regional
          Commissioner orders  that the  hearing be
          conducted by  a panel of  two examiners."
          28  C.F.R.    2.13(A).   Therefore, there
          was  no error in  the fact that  only one
          examiner  conducted your  hearing.   Your
          notice  of action was issued on August 9,
          1995, within 21 days after  your July 20,
          1995 hearing, as  required by regulation.
          The  fact that the  Bureau of Prisons may
          not have immediately delivered the NOA to
          you is not the fault of the Commission.

The Board  also  rejected  Moreno-Morales's  claim  that  the

Commission  did not  disclose the  Justice  Department letter

prior to  the hearing by pointing  out that, in fact,  he had

been shown  the letter.  Finally, the  Board rejected Moreno-

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Morales's claim  that he  should have  been granted  leniency

because a co-defendant had been  granted leniency.  The Board

stated there  were  significant mitigating  factors  in  that

case,  and leniency  granted  in one  case  does not  require

leniency in another.

          On  May  16,  1996, Moreno-Morales  filed  a habeas

corpus petition, again arguing that the Parole Commission had

acted  capriciously and  that  it had  failed  to follow  its

internal regulations.  The district court denied the petition

without a hearing.  Moreno-Morales appeals.

                             III                                         III

          While  there is  some debate  among  the courts  of

appeal as  to the scope  and standard of review  of different

types of  Parole Commission decisions,1 for  present purposes

we will  assume this decision  is reviewable and test  it for

whether  it  is  irrational, arbitrary  or  capricious.   The

decision is plainly none of these things.

          Under  the Parole  Commission's guidelines,  parole

determinations  are based upon two factors:  offense category

                                                    

1.  For  cases holding decisions of the Parole Commission are
not reviewable for abuse of  discretion, see, e.g., Jones  v.                                                                     
United  States Bureau  of Prisons, 903  F.2d 1178,  1183 (8th                                             
Cir. 1990);  Wallace v. Christensen, 802 F.2d 1539, 1553 (9th                                               
Cir. 1986) (en  banc); Farkas v. United States,  744 F.2d 37,                                                          
38-39 (6th Cir. 1984);  Garafola v. Wilkinson, 721  F.2d 420,                                                         
423-24 (3d Cir. 1983); Garcia v. Neagle, 660 F.2d 983, 988-89                                                   
(4th Cir.  1981).   For  cases  holding decisions  of  Parole
Commission  are  subject  to deferential  review,  see, e.g.,                                                                        
Hanahan v. Luther, 693 F.2d 629, 632 (7th Cir. 1982); Simpson                                                                         
v. Ortiz, 995 F.2d 606, 608 (5th Cir. 1993).                    

                             -7-                                          7

and salient factor score.  See 28 C.F.R.   2.20.  The offense                                          

category rates  the severity  of the  inmate's offense.   The

salient factor  score  rates the  inmate's  parole  prognosis

based on  such factors as criminal record and  age.  See id.                                                                         

As to  the second prong,  the Commission assigned  to Moreno-

Morales a  salient factor  score of  ten, the most  favorable

rating.   

          There are eight offense  categories, and the parole

guidelines  provide  upper and  lower confinement  limits for

categories one through  seven, from which the  Commission may

depart for good cause.  See 18 U.S.C.   4206(c).  There is no                                       

upper  limit for  category  eight  offenses  because  of  the

"extreme variability of the cases  within this category."  28

C.F.R.   2.20 n.1.   If the Commission decides to exceed  the

lower limit of category eight parole eligibility by more than

forty-eight  months,  it  must  "specify the  pertinent  case

factors upon which it relied  in reaching its decision."  Id.                                                                         

          The base  offense category  for  perjury is  three,

except when the perjury concerns a criminal offense, in which

case  the  offense  category  is  two  categories  below  the

underlying offense.  Because Moreno-Morales committed perjury

while attempting  to conceal  a murder,  an offense  category

eight  crime, his offense  category would ordinarily  be six.

See 28 C.F.R.    2.20 ch.6.  The  Parole Commission, however,               

                             -8-                                          8

elevated Moreno-Morales's  offense category to  eight because

of the fact  he had committed murder.   The Parole Commission

may  take into account  any substantial information available

to it  when assessing the  offense category, see 28  C.F.R.                                                              

2.19(c), and this decision was entirely rational in  light of

the conviction,  the Justice  Department letter, and  Moreno-

Morales's own admissions.  

          Under the guidelines, the Commission was  obligated

to state the reasons for its decision to deny parole.  See 28                                                                      

C.F.R.    2.20  n.1.   The Commission  did this,  stating the

decision  was premised upon  the aggravating factor  that "an

unarmed person detained by police and handcuffed was shot and

killed."  That is enough.

                              IV                                          IV

          Moreno-Morales's  arguments  that   the  Commission

failed  to  follow  its  own rules  are  also  without merit.

Moreno-Morales  argues that the  Parole Commission denied him

"reasonable  access" to the  Justice Department letter  and a

meaningful  opportunity to respond to it.  Moreno-Morales saw

the  letter two  days before  his  hearing, a  fact which  he

admits,  and  he  declined the  hearing  examiner's  offer to

continue  the hearing  until a  later date  -- an  offer made

specifically  to  give  Moreno-Morales  the  opportunity   to

consider his response.  Moreno-Morales complains he could not

fully  explain his version  of events because  his translator

                             -9-                                          9

was not fluent in  Spanish, but does  not explain how he  was

prejudiced on this  account.  See Sacasas v.  Rison, 755 F.2d                                                               

1533, 1535 (11th  Cir. 1985) (petitioner must  demonstrate he

was prejudiced by Parole Commission's  acts to be entitled to

habeas  relief).  In any event,  the hearing examiner plainly

understood at  least the gist of Moreno-Morales's assertions,

as he refers to them in his Initial Hearing Summary.  

          Moreno-Morales   also   argues  that   the   Parole

Commission failed to  state the reasons  for its denial  with

particularity as  required by 18  U.S.C.   4206(b).   This is

plainly  incorrect,  as  the  Notice  of  Action specifically

explained that  parole was  denied because  "an armed  person

detained by police and handcuffed was shot and killed."

        We affirm the decision of the district court.2

                                                    

2.  At oral  argument, the  government informed  us that  the
Parole Commission conducted another hearing regarding Moreno-
Morales in October  1997 and has yet to  render its decision.
Nothing  in this decision should  be construed to prevent the
Parole  Commission from  reaching its  own  decision in  that
matter.

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