                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-24-2007

Gomez v. US Parole Comm
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4581




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"Gomez v. US Parole Comm" (2007). 2007 Decisions. Paper 543.
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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               ________________

                                     No. 06-4581
                                  ________________

                                  CARLOS GOMEZ,

                                                Appellant

                                           v.

                          U.S. PAROLE COMMISSION;
                    JOHN NASH, WARDEN F.C.I. FORT DIX NJ
                                ________________

                    On Appeal From the United States District Court
                             For the District of New Jersey
                              (D.C. Civ. No. 05-cv-03829)
                      District Judge: Honorable Robert B. Kugler
                                  ________________

                      Submitted Under Third Circuit LAR 34.1(a)
                                  August 14, 2007

             BEFORE: SLOVITER, McKEE and AMBRO, Circuit Judges

                                (Filed: August 24, 2007)

                                  ________________

                                      OPINION
                                  ________________

PER CURIAM

      Carlos Gomez appeals from the District Court’s order denying his petition for a

writ of habeas corpus under 28 U.S.C. § 2241. For the reasons that follow, we will
affirm.

          Gomez is a federal prisoner currently serving multiple sentences at F.C.I. Fort Dix.

 In January 1987, he was sentenced by the United States District Court for the Eastern

District of New York to a 15-year term of imprisonment for a conviction on charges of

conspiracy and possession with intent to distribute more than 1 kilogram of cocaine in

violation of 21 U.S.C. § 846.

          In 1988, Gomez was sentenced to a consecutive 16-year term of imprisonment by

the District Court for the Middle District of North Carolina for his conviction on charges

of conspiring to unlawfully manufacture, and possess with intent to distribute,

approximately 204 kilograms of cocaine, and the unlawful manufacture of more than 200

kilograms of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846. The date for the

commission of these crimes was given in the indictment as June 27, 1984.

          In 1989, Gomez was sentenced in the Northern District of New York for crimes he

had committed in 1984 and 1985. He received a 10-year consecutive non-paroleable

sentence for his conviction on charges of engaging in a continuing criminal enterprise in

violation of 21 U.S.C. § 848, a 10-year consecutive sentence for possession with intent to

manufacture one kilogram of cocaine, aiding and abetting, and possession with intent to

distribute one kilogram of cocaine, in violation of 21 U.S.C. § 841(a)(1), 18 U.S.C. § 2,

and a 10-year concurrent sentence for abandonment of hazardous waste in violation of 42

U.S.C. § 6928(d)(2).

          The Bureau of Prisons (“BOP”) aggregated Gomez’s paroleable sentences to a 41-

                                                2
year sentence pursuant to 18 U.S.C. § 4161. The BOP’s sentence computation indicated

that Gomez was eligible for parole on May 31, 2002.1

       Notwithstanding the BOP’s sentence calculation, Gomez became eligible for

parole in 1996. See 18 U.S.C. § 4205(a)(repealed). The Commission held Gomez’s

initial parole hearing in April 1996, and rated the severity of Gomez’s offense as

Category Eight, which yielded a guideline range of 100+ months of incarceration. See

28 C.F.R. § 2.20. The Commission denied parole and, pursuant to 28 C.F.R. § 2.12(b),

ordered that Gomez serve 15 years before a reconsideration hearing in 2011. Gomez did

not administratively appeal the Commission’s decision. In the interim, the BOP has

recalculated his sentence and his mandatory release date under 18 U.S.C. § 4164 is now

computed to be July 8, 2010, before his presumptive parole date.

       After his most recent statutory interim parole hearing, where the Commission

ordered no change in his status, Gomez filed this habeas corpus petition in the United

States District Court for the District of New Jersey. In the petition, he claimed that the

Commission had violated the Ex Post Facto Clause by denying him parole until after the

May 2002 date indicated on his initial sentence computation. The District Court denied

the petition and Gomez appealed.

       We have jurisdiction pursuant to 28 U.S.C. § 1291. Our review of a District


   1
    Gomez appears confused as to the significance of this computation. Despite being
labeled “Parole Eligibility Date,” he refers to it repeatedly as a “firm parole date,”(see e.g.
Mem. in Support of Hab. Pet. at 5), which it is not. The calculation also included a
remark that “PAR[OLE] ELIG[IBILITY] . . . SUBJECT TO CHANGE.” (Id. Ex.A.)

                                              3
Court's decision to dismiss a § 2241 petition is plenary. See Cradle v. U.S. ex rel. Miner,

290 F.3d 536, 538 (3d Cir. 2002).

       The Ex Post Facto Clause prohibits laws that “retroactively alter the definition of

crimes or increase the punishment for criminal acts.” California Dep’t. of Corrections v.

Morales, 514 U.S. 499, 504 (1995). Gomez, relying on Lyons v. Mendez, 303 F.3d 285

(3d Cir. 2002), argues that the Commission violated the Ex Post Facto Clause by

retroactively applying 18 U.S.C. § 4206(c) to deny him release on parole.

       In 1987, the current version § 4206(c) repealed § 235(b)(3) of the Sentencing

Reform Act of 1984, which mandated that the Commission set a parole date within a

prisoner’s guideline range. Id. at 288. Section 4206(c) gives the Commission the ability

to extend a prisoner’s incarceration beyond his guideline range for good cause. Gomez

argues that, because he committed his offenses after the effective date of § 235(b)(3), but

before its replacement in 1987 with § 4206(c), the Commission’s extension of his

incarceration beyond his guideline range was an impermissible retroactive application of

the law.

       However, Gomez is mistaken: the Commission did not extend his incarceration

beyond his guideline range. The severity of Gomez’s offense led him to be classified as a

Category Eight offender, yielding a guideline range of 100+ months of incarceration. His

guideline range, therefore, has no upper bound. As a matter of logic the Commission did

not extend that range, and, thus, did not rely on § 4206(c) to postpone his parole date.

See Madonna v. United States Parole Commission, 900 F.2d 24, 26 (3d Cir. 1990).

                                             4
Because there was no retroactive application of the law, there was no Ex Post Facto

violation. See id. Accordingly, we will affirm the District Court.




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