                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT

                          __________________________

                                 No. 00-60755
                              (Summary Calendar)
                          __________________________



JOHN CLARK WILLIS,
                                                                        Petitioner,

                                      versus


UNITED STATES PAROLE COMMISSION,
                                                                        Respondent.

          ___________________________________________________

                      Appeal from the Determination
                 of the United States Parole Commission
                             (18 USC 4106 A)
          ___________________________________________________
                               June 1, 2001

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:1

      John    Clark     Willis     (“Willis”)       appeals    his     release-date

determination      by    the     United    States     Parole    Commission       (the

“Commission”).          Willis   asserts      several   claims,      including    one

alleging legal error by the Commission in refusing to depart below

his   Guidelines      sentencing     range.         Concluding       that   we   lack



      1
      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this opinion should not be published and is not precedent except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.


                                          1
jurisdiction to review the departure claim, we dismiss Willis’s

appeal of that issue.      Finding no reversible error after reviewing

his remaining claims, we affirm the Commission’s determination.

                                         I.

                          FACTS AND PROCEEDINGS

     Willis was arrested in June 1994 by officers of the Mexican

Federal Judicial Police after heroin was discovered on his person

and in his luggage at the airport in Mexico City.                    According to

Willis, an ex-Marine, his journey to Mexico began in Chicago, where

he provided security for various nightclubs.               Willis was initially

approached at one of the clubs by someone known as “Mr. Colin” who

purported to recruit Willis to work as a bodyguard for musical

groups   in   Thailand.         Willis   accepted    the    offer,    obtained   a

passport, received plane tickets (along with $3000 in cash), and

flew to Thailand.

     When Willis arrived in Thailand, individuals known to him only

as “Michael” and “Tony” met him at the airport and checked him into

a hotel.   Several days later, Michael and Tony arranged for Willis

to fly to Phuket for a “meeting” about the bodyguard assignment.

Shortly after Willis arrived in Phuket, however, all pretense was

dropped and he was told to transport a package to Guatemala or else

“figure out how you’re getting home, if you get home.”                     Willis

suspected that he was being asked to carry drugs, but nevertheless

agreed to do as he was told.

     Willis    was   to   fly    from    Bangkok    to   Guatemala    by   way   of

                                         2
Amsterdam; he was to be paid $500 on arrival in Guatemala and

$10,000 on his return to Bangkok.                The flight from Amsterdam to

Guatemala stopped in Mexico City, where Willis deplaned and his

“nervous” appearance caught the attention of the Mexican police.

When Willis was approached by the police and asked to accompany

them to their office so that his luggage could be searched, Willis

volunteered that he was carrying drugs of an unknown kind that were

hidden in a false compartment in his luggage and in specially made

underpants that he was wearing.              A search of the luggage and

underpants led to the discovery of 6.877 kilograms of heroin.

During   Willis’s     interrogation,       the    Mexican    police    struck   him

several times in the back with the butt of an M-16 rifle.

     Willis     was   arrested   and       charged    with    introduction      and

transportation of heroin into Mexico.                  Although he initially

admitted   his    possession     of    illegal       drugs    to      the   Mexican

authorities, Willis subsequently argued at trial on the advice of

his Mexican counsel that the substance he was carrying was not

heroin and that the Mexican police did not find any illegal

substance in his possession when they searched him at the airport.

The Mexican court credited Willis’s original inculpatory statement,

convicted him of the charge, and sentenced him to ten years’

imprisonment.

     Willis served more than five years of his sentence in a

Mexican prison.       During his incarceration in Mexico, Willis was

subjected to what the Commission itself describes as a “severe

                                       3
abuse situation,” including denial of food and medical treatment,

constant demands by the prison authorities for payment to “protect”

him from threats against his life by other prisoners,2 and an

internationally      reported    28-hour    prison     riot     by   inmates   on

Christmas Eve 1998, during which Willis was held at gunpoint by

inmates attempting to escape from the prison.

     After serving more than one-half of his ten-year sentence in

Mexico,    Willis   was   finally    transferred     to   the    United   States

pursuant to    a    prisoner    transfer    treaty.3      Following    Willis’s

transfer, the Commission concluded, pursuant to 18 U.S.C. § 4106A,

that Willis should serve the full term of his ten-year sentence.

More specifically, the Commission determined that a 121-to-151-

month sentencing range was appropriate, and ordered a release date

after 120 months, to be followed by a 60-month period of supervised

release.     Willis timely appeals the Commission’s release-date

determination.

                                      II.

                                    ANALYSIS

A.   Standard of Review

     We decide an appeal of a release-date determination by the

     2
      Willis’s mother estimates that over the course of her son’s
five-year imprisonment in Mexico, each month she paid $300 to $600
requested by the prison director to “protect” her son’s life, in
addition to paying thousands of dollars in “cell rental” and
“renovation” costs.
     3
      See Treaty on Execution of Penal Sentences, Nov. 25, 1976,
U.S.-Mex., 28 U.S.T. 7399, T.I.A.S. No. 8718.

                                       4
Commission as though the determination had been a sentence imposed

by a United States district court.4               Accordingly, we have no

jurisdiction to review a refusal to depart below the Guidelines’

sentencing range unless the Commission based its decision not to

depart on an erroneous belief that it lacked the authority to do

so.5

B.     Refusal to Depart for Severe Abuse or Torture

       Willis contends that the Commission erroneously believed that

it lacked the authority to depart downward from the Guidelines on

the basis of the “severe abuse” that the Commission itself found

that he suffered while incarcerated in Mexico.6 More specifically,

Willis argues that the Commission denied his request for a downward

departure    under     the    mistaken   belief   that   only   a   finding   of

“torture” or its equivalent would permit departure.                    We must

disagree.

       The Sentencing Guidelines permit departure if mitigating or

aggravating circumstances have not been adequately taken into

consideration     by    the    Guidelines    themselves.7       Congress      has

explicitly identified the “harsh treatment” meted out in foreign


       4
        18 U.S.C. § 4106A(b)(2)(B).
       5
      United States v. Valencia-Gonzales, 172 F.3d 344, 346 (5th
Cir. 1999).
       6
      Although Willis raises several issues on appeal, we are
convinced after a thorough review of the law and the record that
only this one has enough merit to warrant discussion.
       7
        18 U.S.C. § 3553(b).

                                         5
prisons as one such circumstance:

              Because the conditions in foreign prisons and the
              treatment of persons arrested by foreign authorities may
              vary considerably from the conditions in federal prisons
              and the treatment of persons arrested in this country, it
              can be expected that the Parole Commission will have to
              decide what impact harsh treatment in another country
              should have upon the Parole Commission's determinations
              on imprisonment and supervised release. If, for example,
              the Parole Commission finds that the prisoner was abused
              when interrogated, the Parole Commission could use that
              fact to justify a period of imprisonment at the bottom of
              the [G]uideline range. If the Parole Commission finds
              that a prisoner who transfers to the United States had
              been tortured in the sentencing country, from which the
              prisoner transfers, then that finding could be a basis
              for the Parole Commission to depart below the applicable
              [G]uideline range.8

The Commission’s own Rules and Procedures Manual elaborates that

“[a] downward departure may be warranted in the case of torture .

. . or other severe abuse (including inhumane prison conditions[,]”

and   explains     that   “cases   of   severe    abuse   (especially   where

permanent      physical   or   psychological     injury   is   inflicted)   may

warrant a decision below the [G]uidelines just as in the case of

torture.”9      The Rules and Procedures Manual distinguish “torture”

and “severe abuse” on the basis of whether the infliction is

“officially instigated,” and not on the basis of the magnitude or

incidence of the pain and suffering.10

      In the instant case, the Commission considered a downward

      8
       See 134 Cong. Rec. 33,302 (Oct. 21, 1988).
      9
      U.S. Parole Commission, Rules and Procedures Manual, Appendix
9, chapter 5, part k, at 340-41 (1996) (emphasis added).
      10
           Id. at 340.

                                        6
departure, but declined to grant one.                  The transcript of the

colloquy between counsel for Willis and the hearing examiner

produces   substantial     ambiguity       on   the    question   and    is    thus

insufficient to answer definitively whether the examiner understood

that he could depart from the Guidelines on the basis of “severe

abuse” as well as torture.11       Any misunderstanding on the part of

the examiner, however, is irrelevant because in reviewing the

examiner’s determination, the Commission’s Legal Office expressly

noted that “cases of ‘severe abuse’ may warrant a decision below

the [G]uidelines, as in the case of torture.”

      It is thus apparent to us that the Commission believed ——

correctly —— that both “torture” and “severe abuse” permit, but do

not require, a departure from the Guidelines.                  Accordingly, the

Commission’s discretionary decision to decline Willis’s request for

a   downward   departure   is    unreviewable.          When    the   Commission

understands    that   it   has   the       authority    to   depart     from    the

Guidelines, but determines that the case at hand does not warrant

departure, we may not “second guess” or otherwise question the

Commission’s decision, even if we might have chosen differently had

the initial decision been ours to make.

                                    III


      11
      For example, the examiner’s statement that Willis’s
“conditions during the course of his confinement . . . meet the
level of severe abuse rather than torture” may be read to suggest
that a finding of “severe abuse” is insufficient to justify a
downward departure.

                                       7
                           CONCLUSION

     For the reasons explained above, Willis’s appeal of the

Commission’s refusal to grant his request for a downward departure

from the Guidelines is DISMISSED for lack of jurisdiction and the

Commission’s determination is AFFIRMED in all other respects.




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