Appeal from an order of the United States District Court for the District of Connecticut, Eginton, J., denying appellant's petition for a writ of habeas corpus on the ground that the United States Parole Commission acted reasonably in classifying appellant for parole. We hold that the Parole Commission acted unreasonably because it failed to classify appellant's offense within the categories set forth in the Commission's guidelines, 28 C.F.R. § 2.20 (1982), and because it was not reasonable for the Commission to equate the offense of selling substances for diluting heroin with "property offenses."
Meskill, Kearse and Cardamone, Circuit Judges.
Appellant Hyman Lieberman appeals from a judgment of the United States District Court for the District of Connecticut, Eginton, J., denying his petition for a writ of habeas corpus. Lieberman attacks the United States Parole Commission's classification of him for parole. We hold that the Commission abused its discretion and reverse and remand for further proceedings.
Lieberman was indicted with several co-defendants for participating in a major heroin distribution operation in which he supplied large quantities of mannite and quinine, uncontrolled substances used to dilute heroin. See United States v. Perry, 643 F.2d 38 (2d Cir.), cert. denied, 454 U.S. 835, 102 S. Ct. 138, 70 L. Ed. 2d 115 (1981). Lieberman pled guilty to one count of conspiracy to distribute heroin in violation of 21 U.S.C. § 846 (1976) and was sentenced to an eight year term of imprisonment with a twelve year special parole term to follow. He began serving his sentence on November 13, 1979.
An offender who may be eligible for parole is entitled to a parole determination hearing by a panel of examiners of the United States Parole Commission. 18 U.S.C. § 4208 (1982). In making eligibility determinations, the Commission examines the offense behavior of the offender using the Guidelines for Decision-Making (Guidelines), which set presumptive release dates based on the offense committed and the offender's risk of parole violation. 28 C.F.R. § 2.20 (1982). The Guidelines in effect when the Commission made its decision divided offenses into seven categories: Low, Low Moderate, Moderate, High, Very High, Greatest I and Greatest II. The Very High category included opiate offenses of possession with intent to distribute or the sale of five grams or more of pure heroin, or the equivalent. Greatest I included "property offenses," such as theft and forgery of over $500,000.*fn1 It also included possession with intent to distribute or the sale of between 50 and 1,000 grams of pure heroin, or the equivalent, and a managerial or proprietary interest in the heroin venture. Greatest II included a managerial or proprietary interest in heroin sales of over 1,000 grams.
At Lieberman's first hearing, the panel of examiners concluded that Lieberman had a proprietary interest in a multi-million dollar drug conspiracy.*fn2 The Guidelines state that a proprietary interest in such a major drug sale is to be classified Greatest II. Lieberman exhausted his administrative remedies and then petitioned the district court for a writ of habeas corpus, claiming that his offense should not have been classified Greatest II because he had no proprietary interest in the sale of heroin. The Commission reopened his case and decided that Lieberman did not have a proprietary interest in the sale of heroin. The Commission asked the court to dismiss the habeas petition without prejudice to allow reconsideration of Lieberman's parole classification. On October 6, 1982 the district court granted the request and dismissed the petition without prejudice.
In its October 5, 1982 reconsideration the Commission said that Lieberman "personally profitted [sic] . . . from [his] involvement in the instant conspiracy to distribute heroin, involving multi-millions [sic] of dollars worth of illegal heroin." App. at 10. It rated his offense Greatest I, the second most severe category, because it considered the offense "at least as serious as those property crimes listed as greatest I severity by the [Commission]." It also ruled that a decision outside of the Guidelines was not warranted. Lieberman's high "salient factor score,"*fn3 an indicator of the likelihood that he would abide by parole conditions, made him presumptively eligible for parole after serving 52 to 64 months of his sentence.
After exhausting his administrative remedies, Lieberman again petitioned the court for a writ of habeas corpus, claiming that the Commission acted unreasonably in defining his offense as a property offense rather than as an opiate offense. The most severe Guidelines rating for opiate offenses in which there is no managerial or proprietary interest is Very High. This rating would have resulted in a presumptive sentence range of 36 to 48 months instead of 52 to 64 months for a Greatest I property offense. The district court denied the habeas petition on June 27, 1983.
The standard of review in a Parole Commission Guidelines case is limited to a determination of whether the Commission abused its discretion. We will defer to the Commission's interpretation of its regulations unless the interpretation is unreasonable and will not reverse a Commission decision that has a rational basis. Bialkin v. Baer, 719 F.2d 590 (2d Cir. 1983). Under 18 U.S.C. § 4206(c) (1982), the Commission may not go outside of its own Guidelines unless there is good cause for doing so which it states with particularity. See also 28 C.F.R. § 2.20(c) (1982). In the present case the Commission found that "a decision outside the guidelines at this consideration is not found warranted." App. at 10.
The Commission did not classify Lieberman's exact offense. Instead, it determined that his offense was "at least as serious as" certain property crimes. The Commission apparently intended to follow the provision of the Guidelines which stated:
If an offense behavior is not listed above, the proper category may be obtained by comparing the severity of the offense behavior with those of similar offense behaviors listed.
28 C.F.R. § 2.20, General Note B (1982).
Lieberman's offense behavior was conspiracy to distribute heroin. The Guidelines state that "conspiracy shall be rated . . . according to the underlying offense behavior if such behavior was consummated." Id., Other Offenses, § 1. The underlying offense behavior was the sale of heroin, an opiate offense listed in the Guidelines. It was conceded that Lieberman did not have a managerial or proprietary interest in the heroin venture, and selling heroin without a proprietary interest cannot be classified as Greatest I or Greatest II. Because there is no upper limit to the amount of heroin needed for a Very High offense, Lieberman's offense should have been placed in that category rather than in Greatest I. See Allen v. Hadden, 536 F. Supp. 586, 598 (D. Colo. 1982) (where possession of over 2,000 pounds of marijuana ...