Davis v. Saad

Filing 29

ORDER ADOPTING REPORT AND RECOMMENDATION. Signed by Chief Judge Gina M. Groh on 11/07/2018. Copy mailed to pro se petitioner by CMRR. (cwm) (Additional attachment(s) added on 11/7/2018: # 1 Certified Mail Return Receipt) (tlg).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MARTINSBURG

RICARDO ANTHONY DAVIS,
Petitioner,

v.

CIVIL ACTION NO.: 3:18-CV-76
(GROH)

JENNIFER SAAD, Warden,
Respondent.

ORDER ADOPTING REPORT AND RECOMMENDATION
Pending before the Court is the Report and Recommendation (AR&R@) of United
States Magistrate Judge Robert W. Trumble. Pursuant to this Court’s Local Rules, this
action was referred to Magistrate Judge Trumble for submission of a proposed R&R.
Magistrate Judge Trumble issued his R&R [ECF No. 26] on October 17, 2018. Therein,
Magistrate Judge Trumble recommends that the Respondent’s Motion to Dismiss, or in
the alternative, Motion for Summary Judgment [ECF No. 21] be granted and that the
Petitioner=s § 2241 petition [ECF No. 12] be dismissed with prejudice.
I. Standard of Review
Pursuant to 28 U.S.C. ' 636(b)(1)(C), this Court is required to make a de novo
review of those portions of the magistrate judge=s findings to which objection is made.
However, the Court is not required to review, under a de novo or any other standard, the
factual or legal conclusions of the magistrate judge as to those portions of the findings or
recommendation to which no objections are addressed. Thomas v. Arn, 474 U.S. 140,

150 (1985). Failure to file timely objections constitutes a waiver of de novo review and of
a Petitioner’s right to appeal this Court’s Order.

28.U.S.C..'.636(b)(1); Snyder v.

Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989); United States v. Schronce, 727 F.2d 91,
94 (4th Cir. 1984).
Objections to Magistrate Judge Trumble=s R&R were due within fourteen plus
three days of the Petitioner being served with a copy of the same. 28 U.S.C. ' 636(b)(1);
Fed. R. Civ. P. 72(b). The R&R was mailed to the Petitioner by certified mail on October
17, 2018. ECF No. 26. The Petitioner accepted service on October 23, 2018. ECF
No. 27.

The Petitioner filed objections on November 2, 2018.

ECF No. 28.

Accordingly, this Court will review the portions of the R&R to which the Petitioner objects
de novo.
II. Background
In the instant proceeding, the Petitioner alleges that the United States Parole
Commission (“the Commission”) abused its discretionary power when the Commission
sentenced him to 144 months, exceeding the guideline range of 64 – 92 months by 52
months. ECF No. 12. In his objections, the Petitioner argues that the Commission did
not consider the mitigating factors in his case when sentencing him to an above-guideline
sentence. ECF No. 28 at 3. Further, the Petitioner argues that the Commission cited to
unfair and impermissible reasons for departing from the guidelines. ECF No. 28 at 4.
III. Applicable Law
Under the Parole Act, substantive parole determinations are committed “to the
absolute discretion of the Commission.” Garcia v. Neagle, 660 F.2d 983, 988 (4th Cir.
1981).

However, the Court may review the Commission’s decision when “the

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Commission acted completely outside the scope of the discretion given it by Congress.”
Id. at 989.
The Commission’s authority to act is codified in 18 U.S.C. § 4201 et. seq.
Pursuant to 18 U.S.C. § 4206(c), the Commission has the authority to grant or deny
release on parole “notwithstanding the guidelines . . . if it determines there is good cause
for so doing: Provided, That the prisoner is furnished written notice stating with
particularity the reasons for its determination, including a summary of the information
relied upon.”
Furthermore, the guidelines for D.C. Code offenders, codified at 28 C.F.R. § 2.80
provides, in part, that:
(b) Guidelines. In determining whether an eligible prisoner should
be paroled, the Commission shall apply the guidelines set forth in this
section. The guidelines assign numerical values to pre- and
post-incarceration factors. Decisions outside the guidelines may be made,
where warranted, pursuant to paragraph (n) of this section.
(c) Salient factor score and criminal record. The prisoner's Salient Factor
Score shall be determined by reference to the Salient Factor Scoring
Manual in § 2.20. The Salient Factor Score is used to assist
the Commission in assessing the probability that an offender will live and
remain at liberty without violating the law. The prisoner's record of criminal
conduct (including the nature and circumstances of the current offense)
shall be used to assist the Commission in determining the probable
seriousness of the recidivism that is predicted by the Salient Factor Score.
Pursuant to subsection (n) of 28 C.F.R. § 2.80, decisions outside the guidelines
are permissible:
(1) The Commission may, in unusual circumstances, grant or deny parole to
a prisoner notwithstanding the guidelines. Unusual circumstances are
case-specific factors that are not fully taken into account in the guidelines,
and that are relevant to the grant or denial of parole. In such cases, the
Commission shall specify in the notice of action the specific factors that it
relied on in departing from the applicable guideline or guideline range. If the

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prisoner is deemed to be a poorer or more serious risk than the guidelines
indicate, the Commission shall determine what Base Point Score would
more appropriately fit the prisoner's case, and shall render its initial and
rehearing decisions as if the prisoner had that higher Base Point Score. It is
to be noted that, in some cases, an extreme level of risk presented by the
prisoner may make it inappropriate for the Commission to contemplate a
parole at any hearing without a significant change in the prisoner's
circumstances.
(2) Factors that may warrant a decision above the guidelines include, but
are not limited to, the following:
...
(ii) More serious parole risk. The offender is a more serious parole risk than
indicated by the total point score because of—
(A) Prior record of violence more extensive or serious than that taken into
account in the guidelines. . . .
IV. Discussion
Here, the Commission acted within the scope of its authority when it sentenced the
Petitioner to an above-guideline term of imprisonment. The Commission provided a
written statement detailing the reasons for its decision. Specifically, the Commission
stated that it departed from the guidelines “because of [the Petitioner’s] multiple
conviction[s] for violent offenses. . . . [The Petitioner’s] history of committing violent
felonies is not adequately captured by [his] guidelines and the Commission finds that [the
Petitioner is at] high risk to commit additional violent crimes.” ECF No. 21-2 at 20.
Under the guidelines for D.C. Code offenders, a prior record of violence is a permissible
reason for departing from the guidelines. See 28 C.F.R. § 2.80(n). Accordingly, this
Court is without authority to review the Commission’s decision.
V. Conclusion
Accordingly, upon careful review, the Petitioner’s objections are OVERRULED

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and Magistrate Judge Trumble’s Report and Recommendation [ECF No. 26] is
ORDERED ADOPTED. The Respondent’s Motion to Dismiss, or, in the alternative, for
Summary Judgment [ECF No. 21] is GRANTED, and the Petitioner’s § 2241 Petition
[ECF No. 12] is DISMISSED WITH PREJUDICE.
As a final matter, upon an independent review of the record, this Court hereby
DENIES the Petitioner a Certificate of Appealability, finding that he has failed to make “a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
The Clerk is DIRECTED to strike this matter from the Court’s active docket. The
Clerk is further DIRECTED to transmit copies of this Order to all counsel of record herein
and to mail a copy of this Order to the pro se Petitioner by certified mail, return receipt
requested.
DATED: November 7, 2018

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