                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                 October 13, 2004

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 03-60634
                          Summary Calendar



LAZARO FARAGA

                      Plaintiff - Appellant

     v.

DANNY Q JACKSON, Chairman of Mississippi Parole Board,
LYDIA CHASSANIOL, WALLEY R NAYLOR, MONEY POWELL, JR,
ARTHUR LEE NORED, PETE POPE

                      Defendants - Appellees

                       --------------------
          Appeal from the United States District Court
            for the Southern District of Mississippi
                      USDC No. 3:00-CV-80BN
                       --------------------

Before KING, Chief Judge, and DENNIS and PICKERING, Circuit
Judges.

PER CURIAM:*

     Lazaro Faraga, Mississippi prisoner # 41313, appeals the

summary judgment granted in favor of the defendants, dismissing

his 42 U.S.C. § 1983 complaint.    Faraga argues that the

Mississippi Parole Board violated his rights under the Ex Post

Facto Clause by denying him annual parole reconsideration

hearings, which he was entitled to under the law in effect at the

time he committed the offense.    He further asserts that he was

     *
       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this opinion should not be published and is not precedent except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.
                              No. 03-60634
                                   -2-

denied equal protection on the basis of his Cuban nationality by

the Parole Board in that similarly situated white and black

prisoners were granted parole, while he was denied parole.

     Under the principles set forth in Garner v. Jones, 529 U.S.

244, 251-57 (2000), and California Dept. of Corr. v. Morales, 514

U.S. 499, 509-14 (1995), Faraga was required to show that the

Board’s amended rules permitting the Board to give set-offs of

from one to seven years created a significant risk of prolonging

his incarceration.   Our de novo review of the record reveals that

the magistrate judge properly concluded that there was no genuine

issue of material fact as to whether application of the amendment

created the prohibited effect.     See FED. R. CIV. P. 56(c)

     Given the nature of Faraga’s crime and the other reasons

listed by the Board for denying him parole, it is difficult to

see how the Board increased the risk of his serving a longer

sentence when it decided to set Faraga’s next parole hearing five

years later, rather than annually.     See Garner, 529 U.S. at 255.

Furthermore, the record indicates that the amendment allows the

Board to set reconsideration dates between one and seven years.

Thus, like the amendment in Garner, the amendment here vests the

Board with discretion as to how often an inmate may be

reconsidered.   Id. at 254.    The Board consequently may set

reconsideration dates according to an inmate’s likelihood of

release on parole.   Id.   Furthermore, there is no evidence in the

record indicating that Faraga would be precluded from seeking an
                             No. 03-60634
                                  -3-

expedited hearing from the Board if he experienced a change in

circumstances.     See Morales, 514 U.S. at 512.   Accordingly, the

magistrate judge did not err in granting summary judgment in

favor of the defendants as to Faraga’s claim under the Ex Post

Facto Clause.

     Although Faraga sufficiently stated an equal protection

claim based on his Cuban nationality, see Thompson v. Patteson,

985 F.2d 202, 207 (5th Cir. 1993), the evidence he presented in

support of his claim was insufficient to create a genuine issue

of material fact regarding the Board’s alleged discrimination.

Specifically, the evidence Faraga produced concerned white and

black prisoners who had been reviewed for and granted parole in

1996 or earlier.    Faraga’s evidence was not relevant as to

whether he was denied parole in 1999 and/or 2001 based on an

improper motive.

     The district court’s judgment is AFFIRMED.
