                                               NOT PRECEDENTIAL


        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT
                  _____________

                      No. 16-2645
                     _____________

               NATHANIEL COLEMAN,
                              Appellant

                            v.

     UNITED STATES PAROLE COMMISSION,
ATTORNEY GENERAL UNITED STATES OF AMERICA,
            WARDEN FORT DIX FCI
     _____________________________________

  On Appeal from the United States District Court for the
                   District of New Jersey
           (District Court No.: 1-15-cv-03586)
       District Judge: Honorable Robert B. Kugler
      _____________________________________


      Submitted under Third Circuit L.A.R. 34.1(a)
                 on February 9, 2018


Before: CHAGARES, SCIRICA, and RENDELL, Circuit Judges


            (Opinion Filed: March 13, 2018)
                                       O P I N I O N*



RENDELL, Circuit Judge:

       After Nathaniel Coleman had served thirty years of a life sentence, the Parole

Commission denied him parole because it concluded that there was a reasonable

probability he would commit future crimes if released. The Commission based its

conclusion on Coleman’s violent criminal history and his failure to acknowledge the

wrongfulness of his criminal actions. Coleman filed a habeas corpus petition in the

District of New Jersey. The District Court upheld the Commission’s decision and

dismissed the petition. Coleman appealed.

       We will affirm the District Court’s order. A court must uphold a Commission’s

decision to deny parole to a prisoner unless it lacks a rational basis in the record. Furnari

v. Warden, Allenwood FCI, 218 F.3d 250, 254 (3d Cir. 2000). Under the Parole Act,

parole must be denied when there is a reasonable probability that a prisoner would

commit additional crimes if released. 18 U.S.C. § 4206(d). Several factors, including

Coleman’s disciplinary record, his age, and his poor health, reduced the likelihood that he

would commit additional crimes if released. However, given Coleman’s criminal history,

plus his inability or unwillingness to acknowledge the wrongfulness of his actions, we




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

                                              2
cannot say that the Commission’s decision lacked a rational basis. We therefore affirm

the order of the District Court.

                                        I. Background

       Coleman was sentenced to life in prison in August 1987. Coleman’s sentence is

subject to the Parole Commission and Reorganization Act (“Parole Act”), Pub. L. No. 94-

244 § 2, 90 Stat. 219 (1976) (formerly codified as 18 U.S.C. §§ 4201-18).1 Under the

Parole Act, a prisoner serving a life sentence is entitled to parole after he has served thirty

years of his sentence, unless the Parole Commission “determines [1] he has seriously or

frequently violated institution rules and regulations or [2] that there is a reasonable

probability that he will commit any Federal, State, or local crime.” 18 U.S.C. § 4206(d)

(emphasis added).

       Coleman received a mandatory thirty-year parole hearing in 2015. Pursuant to 28

C.F.R. § 2.23(a), a panel of three hearing examiners conducted the hearing. Two of the

three examiners concluded that there was a reasonable probability Coleman would

commit additional crimes if released and therefore recommended the Commission deny

parole. 2 A written report accompanied the examiners’ recommendation and noted that

Coleman’s “age, health issues, and his spotless disciplinary record all serve to diminish

his risk.” (A102). Nonetheless, the examiners found that there was a reasonable


1
  The Parole Act was repealed effective November 1, 1987, but it “remains in effect for
individuals who committed an offense before that date.” Mitchell v. U.S. Parole Comm’n,
538 F.3d 948, 950 n.2 (8th Cir. 2008).
2
  Under 28 C.F.R. §§ 2.13, 2.23-2.24, at least two of the three examiners must concur on
a recommendation, which is then submitted to the Commission.

                                              3
probability Coleman would commit additional crimes if released, given his criminal

history and his unwillingness to recognize the wrongfulness of his criminal acts.

       The Commission accepted the examiners’ recommendation and denied parole. The

Commission’s Notice of Action explained the decision:

              The Commission finds there is a reasonable probability that
              you will commit a new Federal, State, or local crime based on
              your criminal history that began in 1958 at age 17, after you
              were placed on probation in connection with the shooting
              death of another individual, and includes a prior conviction in
              1978 for Aggravated Assault. The current offense involves
              the killing of a government witness for which you continue to
              deny responsibility. In addition, at your hearing, you admitted
              that you were previously a loan shark and pimp, but stated
              that you were only helping the community. The Commission
              finds that your violent criminal history and your
              unwillingness to recognize the wrongfulness of your criminal
              acts makes you a continued risk to commit additional crimes.
(A104).

       Coleman filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241

in the District Court for the District of New Jersey. He argued that the Parole

Commission had violated his due process rights by arbitrarily denying him parole. In

response, the government argued that the Commission’s decision to deny parole should

be upheld on the merits.3 The District Court upheld the Commission’s decision because it

was based on a conclusion that Coleman was reasonably likely to commit future crimes,

and that conclusion was supported by the “petitioner’s criminal history and his failure to



3
 The Government also argued that Coleman’s petition should be dismissed for failure to
exhaust his administrative remedies. The District Court did not address the exhaustion
argument. Because we will uphold the Commission’s decision on the merits, we also
decline to address the exhaustion argument.
                                             4
take responsibility for his crimes.” Coleman v. U.S. Parole Comm’n, Civ. No. 15-3586,

2016 WL 1337258, at *4 (D.N.J. Apr. 5, 2016). This timely appeal followed.

                                        II. Analysis4

       “[T]he Parole Commission enjoys a great deal of deference as to decisions

regarding whether to grant parole to a particular individual[.]”Wilson v. U. S. Parole

Comm’n, 193 F.3d 195, 199 (3d Cir. 1999). Out inquiry is limited to “whether there is a

rational basis in the record for the [Commission’s] conclusions[.]” Furnari, 218 F.3d at

254 (quoting Zannino v. Arnold, 531 F.2d 687, 691 (3d Cir. 1976)). Given Coleman’s

criminal history and his inability or unwillingness to acknowledge the wrongfulness of

his actions, the Commission had a rational basis to conclude that there was a reasonable

probability Coleman would commit additional crimes if released.

       Coleman argues that the Commission should not have considered his criminal

history, which included crimes committed over fifty years ago. However, the

Commission was free to rely on Coleman’s criminal records. In fact, the Parole Act

instructs the Commission to do so. See 18 U.S.C. § 4207 (“In making a [parole]

determination . . . the Commission shall consider . . . official reports of the prisoner’s

prior criminal record, including a report or record of earlier probation or parole

experiences[.]”). Coleman’s criminal record was long in violent. It began in 1958, when

he was placed on probation for his role in the shooting death of a young man. It also

included a July 1968 arrest for blackmail, assault and battery, pointing a deadly weapon,


4
  The District Court had jurisdiction under 28 U.S.C. § 2241. This Court has jurisdiction
to review the District Court’s final judgment under 28 U.S.C. § 1291.
                                              5
carrying a deadly weapon, obscene literature, and robbery; a 1978 arrest for attempted

murder and aggravated assault; and a 1979 heroin distribution charge. Coleman had also

admitted to loan-sharking and pimping. The fact that some of these crimes occurred

several decades ago does not render them irrelevant for purposes of a parole

determination. Coleman received a mandatory parole hearing under the Parole Act

because he had served thirty years of his life sentence. Thus, his criminal history

necessarily included crimes committed several decades earlier. Given Coleman’s violent

criminal history, the Commission had a rational basis to conclude that there was a

reasonable probability Coleman would commit more crimes if released.

       Nor was the Commission prohibited from considering Coleman’s failure to accept

responsibility or acknowledge the wrongfulness of his criminal activities. The

Commission may consider a number of factors when making a parole decision. U.S. ex

rel. Goldberg v. Warden Allenwood Fed. Prison Camp, 622 F.2d 60, 63 (3d Cir. 1980)

(“[T]he Commission is granted wide discretion to review material that would be helpful

in its determination whether to release a prisoner on parole.”). See also 18 U.S.C. § 4207

(instructing the Commission to consider “such additional relevant information concerning

the prisoner . . . as may be reasonably available”). Given his inability or unwillingness to

accept the wrongfulness of his previous conduct and his criminal history, the

Commission had a rational basis to conclude that there was a reasonable probability

Coleman would commit additional crimes if released.

       Coleman also argues that, since a district court considered his criminal history

when he was sentenced, using that same criminal history to also deny him parole would

                                             6
constitute “double counting.” The Third Circuit has indeed prohibited double counting.

See Harris v. Martin, 792 F.2d 52, 55 (3d Cir. 1986). However, using an individual’s

criminal history for both sentencing and parole decisions is not the kind of “double

counting” prohibited by the Third Circuit and other courts. “Double counting” occurs

when the Commission uses the same factor to both (1) determine a prisoner’s severity

level, which is then used to identify a suggested term of imprisonment under the Parole

Commission guidelines, and (2) decide whether to deviate from the suggested term of

imprisonment. See Romano v. Baer, 805 F.2d 268, 271 (7th Cir. 1986) (“The Parole

Commission[] . . . cannot use aggravating factors to continue a prisoner beyond the

guidelines when such factors were used initially to place the prisoner in a particular

severity category. Such a practice is known as ‘double-counting’ and constitutes an abuse

of discretion.”) (citing Harris, 792 F.2d 52; Torres-Macias v. U. S. Parole Comm'n, 730

F.2d 1214, 1218 (9th Cir. 1984) (describing the “general proposition against double

counting” as “the [C]ommission cannot use information to determine offense severity or

salient factor score, and then use the same information as a justification for going beyond

the guidelines”).5



5
  Moreover, even if the Commission, when deciding whether to grant a prisoner parole,
were prohibited from considering factors used to determine a prisoner’s severity level,
the Commission did not do so. The factors the Commission used to determine Coleman’s
severity level were different from those used to determine that he should not be granted
parole. According to the Commission, “[Coleman’s] offense behavior [was] rated as
Category Eight severity because [he] conspired to violate the civil rights of a government
witness with death resulting.” (A37). It never mentioned his criminal history or his failure
to accept responsibility or recognize the wrongfulness of his conduct—the factors upon
which the Commission’s parole decision was based.

                                             7
       Finally, Coleman argues that the Commission erred because the Notice of Action

explaining its decision did not mention various “mitigating factors” or provide its

reasoning for the decision. See 18 U.S.C. § 4206(b) (requiring the Commission to provide

a “written notice” of its determination that “state[s] with particularity” its reasons for

denying parole). Coleman identifies three mitigating factors, none of which are explicitly

mentioned in the Notice of Action: Coleman’s disciplinary record, a letter of

recommendation from a prison official, and Coleman’s health problems. The

Commission presumably considered these mitigating factors, since they were highlighted

in the report that accompanied the hearing examiners’ recommendation. And although the

Commission did not explicitly refer to these factors in its Notice of Action, it was not

required to do so under the statute or accompanying regulations. The Commission also

provided a “formal statement of reasons” for its decision that “reveal[ed] reasoning, and

[did] not simply present conclusions[.]” Marshall v. Lansing, 839 F.2d 933, 942-43 (3d

Cir. 1988). The Notice of Action made it clear that the Commission’s decision to deny

Coleman parole was based on Coleman’s violent criminal history and failure to

acknowledge the wrongfulness of his actions, which created a reasonable probability he

would commit additional crimes if released.

                                       III. Conclusion

       Accordingly, we will affirm the Order of the District Court.




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