UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-60073 Summary Calendar

RAFAEL CONTRERAS,

Petitioner-Appellant,

versus

UNITED STATES PAROLE COMMISSION,

Respondent-Appellee.

Appeal from the Determination of the United States Parole Commission (86644-080) January 5, 2000

Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Petitioner, Rafael Contreras, is a federal prisoner

transferred to the United States under a prisoner exchange treaty1

to serve a Mexican sentence of 11 years, 6 months, imposed for

transporting 112 kilograms of marijuana. The United States Parole

Commission (“the Commission”) determined that the petitioner would

serve 51 months of imprisonment followed by 36 months of

supervised release. Under 18 U.S.C. § 4106A(b)(2), Contreras

appeals the Commission’s determination. We affirm.

Contreras’s main argument is that the Commission denied

him notice of and opportunity to comment on the bases for its

* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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 Treaty on Execution of Penal Sentences, Nov. 25, 1976, U.S.-Mex., 28 U.S.T. 7399, T.I.A.S. No. 8718 [hereinafter “Treaty”]. sentencing guideline determination. The Commission’s regulations

state that, at a special transferee hearing, the Commission must

provide the transferee with notice of the proposed guideline

determinations and an opportunity to comment on them. See

(h)(1)-(4). The hearing examiner then makes a

guideline-based recommendation as to a release date. This

recommendation is reviewed by one or more “executive” hearing

examiners, who are not present at the hearing. See

(h)(6). When two executive examiners concur, they form a

“panel,” which forwards a recommendation to the Commission for a

final decision. See

(h)(6);

.

In Contreras’s case, two executive hearing examiners

decided not to follow the hearing examiner’s recommendation as to

guideline range. Instead, they drew different inferences from the

facts at issue, and they raised Contreras’s guideline range.

Contreras argues that he was entitled to comment on this

recalculation. In particular, he contends that the Commission’s

denial of an opportunity to comment on this recalculation violated

both the Commission’s governing regulations and federal due

process. Because Contreras has challenged the Commission’s

construction of its regulations, we review his claim de novo. See

Hansen v. United States Parole Commission,

(5th

Cir. 1990).

Both of Contreras’s arguments, that the Commission

violated its regulations as well as due process, are without merit.

The record reflects that the Commission fully complied with the

2 requirements of § 2.62, its governing regulation. Petitioner

received notice in his postsentence investigation report2 (“PIR”)

that an acceptance of responsibility adjustment would be at issue

during his transfer hearing. In his written objections to the PIR,

petitioner’s counsel gave notice that a safety valve reduction

should be at issue as well.3 Thus, petitioner had notice that both

an acceptance of responsibility and a safety valve adjustment would

be under consideration at the special transferee hearing.4

Moreover, the record reflects that petitioner had both the

“opportunity to comment upon the guideline estimate contained in

the postsentence investigation report . . . and to present

arguments and information relating to the Commission’s final

guideline determination and decision.”

(h)(4).

Once the hearing examiner submits his recommended

guideline determination to the executive hearing examiners, there

is nothing in the Commission’s regulations that requires the

executive hearing examiners to give a prisoner further opportunity

to make his case. See

. The Commmission may order

a rehearing at its discretion5, but no rehearing is required,

provided that the Commission bases its decision on the same facts

that were at issue during the transferee hearing. See United

States v. Knight,

(5th Cir. 1996) (finding, in the

2 See

(c),“Postsentence report.” 3 See

(d),“Opportunity to object.” 4 See

(e), “Special Transferee Hearing.” 5

(i)(3).

3 context of a sentencing guidelines dispute, that if the defendant

has actual knowledge of the facts on which the district court bases

an enhancement or a denial of a reduction, the district court need

not provide defendant with notice of its grounds for making the

enhancement or reduction). Here, the executive hearing examiners

based their recommendation on the same facts that were at issue

during the transferee hearing. Contreras was aware of these facts

and, indeed, was able to advocate inferences from these facts that

were favorable to his case. The executive hearing examiners did

not dispute these facts but rather drew different inferences from

them, which dictated their different guideline recommendation.

Neither can Contreras argue that he was entitled to make

his case to the executive hearing examiners because he did not

fully press his case during his special transferee hearing.

Contreras was on ample notice that the final guideline

determination rested with the Commission, not with the hearing

examiner, and that the transfer hearing would be his only

opportunity to enter all his possible arguments into the record.

The Commission’s regulations themselves refer to the examiner’s

“recommended” findings of fact,

(h)(6), and to the

Commission’s “final guideline determination and decision.”

(h)(4). Moreover, the hearing examiner, at the close

of the hearing, reminded petitioner that his decision was not

final. Finally, the Fifth Circuit has made it clear that the

transferee hearing need not be conducted by a final decision maker.

See Hansen v. United States Parole Commission,

, 311

4 (5th Cir. 1990)(permitting the special transferee hearing to be

conducted by hearing examiners, with the final release

determination to be made by the Commission.)

On the basis of the preceding review, this Court is

unable to conclude that the Commission violated its regulations in

this action.6 Nor is there any basis for concluding that the

Commission’s regulations violate due process.7 Contreras was

afforded a sufficient opportunity to offer both legal and factual

arguments on the issues relevant to his sentencing. Finally,

because this Court finds that the Commission complied fully with

its regulations, there is no need to consider Contreras’s arguments

for remand.

Accordingly, the decision of the United States Parole

Commission is AFFIRMED.

6 Unable to make an effective argument that the Commission violated

, 2.23, Contreras argues that Federal Rule of Criminal Procedure 32 applies to transfer treaty determinations and that the Commission violated Rule 32's notice and hearing requirements. This argument is quickly disposed of by noting that there is no authority, either in the Commission’s implementing statute, 18 U.S.C. § 4106A, or in its governing regulations, for applying Rule 32 to transfer treaty cases. Contrary to Contreras’s assertion, Roeder v. United States Parole Commission, No. 93-4114, 5th Circuit, Sep. 10, 1993, does not decide the question whether Rule 32 applies to transfer treaty cases. 7 Any suggestion by Contreras that the Commission violated due process by refusing to follow procedures mandated by its internal policy guidelines is adequately countered by James v. United States Parole Commission,

(9th Cir. 1998). There, on facts similar to the instant case, the court held that the Commission’s internal policy manual did not create due process rights in others. James,

.

5