USCA1 Opinion

UNITED STATES COURT OF APPEALS

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

____________________

No.

96-2358

RAFAEL MORENO-MORALES,

Petitioner, Appellant,

v.

UNITED STATES PAROLE COMMISSION,

Respondent, Appellee.
____________________

ERRATA SHEET
ERRATA SHEET

The opinion

of this

court issued

on January

20,

1998, is corrected as follows:

On the cover page,

judge whose

decision we

the name of the district

review is

changed from

court

"Fusto" to

"Fuste".
[

United States Court of Appeals

United States Court of Appeals
For the First Circuit
For the First Circuit
____________________

No.

96-2358

RAFAEL MORENO-MORALES,

Petitioner, Appellant,

v.

UNITED STATES PAROLE COMMISSION,

Respondent, Appellee.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jose A. Fuste, U.S. District Judge]

___________________

____________________

Before

Torruella, Chief Judge,

___________
Campbell, Senior Circuit Judge,
____________________
and Lynch, Circuit Judge.
_____________

____________________

Irma R. Valldejuli for appellant.

__________________

Isabel Munoz Acosta,

___________________
Guillermo Gil,
______________

United

Assistant U.S. Attorney,

States Attorney,

appellee.

____________________

January 20, 1998

____________________

was

on

with whom
brief for

-22

Per Curiam.
__________

thirty year

giving

perjury.

own

Moreno-Morales

is serving

sentence for convictions of obstructing justice,

false testimony,

After

rules

suborning

being denied

habeas corpus, arguing

its

Rafael

and

that the

that its

perjury, and

parole, he

sought a

Parole Commission

decision

committing

was

writ of

violated

arbitrary

and

capricious.

The district court denied relief.

We affirm.

I
I

The

infamous Cerro

the criminal conviction of

Maravilla incident

Moreno-Morales, a police officer,

has been well described in other opinions.

States
______

v. Reveron Martinez, 836

_________________

United States
______________

v.

underlying

See, e.g., United

_________ ______

F.2d 684 (1st

Moreno-Morales, 815
______________

F.2d

Cir. 1988);

725

(1st Cir.

1987); In re Grand Jury Investigations of the Cerro Maravilla

______________________________________________________

Events, 783 F.2d

______

we sketch the

20 (1st Cir. 1986).

For present purposes,

facts pertinent to the decision

of the Parole

Commission.

On

July

25,

1978,

members

of

the

"Movimiento

Revolucionario

independence

Armado,"

movement,

radical

attempted

tower at Cerro Maravilla.

planned

sabotage

The

to destroy

Rican

pro-

television

The members included Arnaldo Dar o

Rosado, Carlos Soto Arriv , and

police informant.

Puerto

a third individual who was a

Puerto Rico Police

through

the informant

-22

learned of

and

ambushed

this

the

group.

Appellant

Moreno-Morales

was

among

the

police

officers at the scene.

After a

shoot-out,

surrendered and were

Dar o Rosado

taken into custody.

and Soto

In custody, while

handcuffed, Dar o Rosado

and Soto Arriv

the police.

officer killed Dar o Rosado

One police

shotgun blast to the chest.

wounded Soto Arriv

with

were

brutalized by

with a

A second police officer shot and

a pistol.

pistol and shot Soto Arriv

Arriv

Moreno-Morales took

the

again, killing him.

The police concealed their deeds by rearranging the

scene to

make it seem

the two men

custody.

They fabricated a

had not been

taken into

story that Dar o Rosado and Soto

Arriv

had been killed in a shoot-out while resisting arrest.

Moreno-Morales

and the

other officers

told

this story

local district

attorneys investigating the shootings.

to

When

the

victims' survivors brought a civil rights action against

the

Commonwealth

of

Puerto

officers told the same

also

Rico

in

federal

court,

story in deposition testimony.

told this story

to a federal

the

They

grand jury investigating

the event.

In February 1984, after

federal

grand

Morales

and

justice,

jury

he

giving

returned

was convicted

false

committing perjury.

prolonged investigation, a

indictments

after

testimony,

against

trial

suborning

Moreno-

of obstructing

perjury,

and

-33

In January

Puerto Rico

and Soto

1985, Moreno-Morales was

law with murder

Arriv .

for the deaths of

Moreno-Morales was

to

thirty

years

in

jail.

Dar o Rosado

convicted of

degree murder as to the death of Soto Arriv

twenty-two

charged under

second-

and sentenced to

That sentence

is

consecutive to his federal sentence.

II
II

Moreno-Morales

was

consideration on March 27, 1995.

an initial parole

The Parole Commission

dated March

Probation

explanation

Officer for

the thirty

By

Parole Commission asked

the District

Moreno-Morales's

Maravilla killings.

4208(a),

to the parole eligibility date.

additional information.

8, 1995, the

parole

when feasible, not

delayed the hearing beyond

it obtained

of

for

Under 18 U.S.C.

hearing is to be held,

later than thirty days prior

days until

eligible

of Puerto

the Chief

Rico

involvement in

letter

the

for an

Cerro

The letter explained that the Commission

needed "further information

. . . to conduct

the hearing in

conformity

with

Probation Officer

Criminal Section

the

Commission procedures."

referred the

matter to

from

the Justice

attorneys at

of the Civil Rights Division

States Department of Justice.

Department

The Chief

the

of the United

On June 30, 1995, an attorney

wrote a

letter to

Commission explaining Moreno-Morales's role

Moreno-Morales was not copied on the letter.

-44

the Parole

in the killings.

The

Parole

hearing for July 20,

Commission

1995.

scheduled Moreno-Morales's

On July 17, 1995, the Commission

sent a copy of the Justice Department letter to the Bureau of

Prisons with instructions

Morales

to disclose the letter

but not to furnish a copy of

to Moreno-

it to him.

The Bureau

of Prisons did this on July 18, 1995.

On July 20, the hearing occurred before one hearing

examiner, as

C.F.R.

permitted by

2.13(a).

At the

Commission regulations.

hearing, Moreno-Morales

See
___

28

admitted

shooting Soto Arriv , saying he did so when he "lost control"

after Soto

Arriv

shot at

him.

Moreno-Morales

also argued

that some witnesses had been

their testimony.

of

the Justice

paid by the government to alter

The hearing examiner instructed that a copy

Department

letter

should

be

provided

to

Moreno-Morales.

On August 9, 1995, the Commission issued its Notice

of Action denying parole.

The Notice stated:

Your offense behavior has been rated as a

Category

Eight

severity

involved

murder.

Your

score (SFS-81) is

10.

federal confinement
behavior

for

salient

factor
been in

as a result

of your

total

a range

it

You have

of

Guidelines established by
indicate

because

of

124

months.

the Commission

100+ months

to be

served before release for cases with good

institutional

adjustment

achievement.
relevant

After
factors

review
and

presented a decision more

above

the

minimum

warranted because

and

program
of

all

information
than 48 months

guidelines
your offense

appears
behavior

involved

the

following

aggravating

-55

factors:
police

An unarmed person
and

handcuffed

was

detained by
shot

and

killed.

Although the Notice was issued

on August 9, 1995, the Bureau

of Prisons did not deliver the Notice to Moreno-Morales until

December 8, 1995.

On December 15,

decision

to the

1995, Moreno-Morales appealed

National Appeals

Board,

arguing that

the

the

Commission

did not follow correct procedures in deciding his

case

that

and

the

Commission

leniency.

On March 13,

examiner's

decision.

should

have

granted

1996, the Board affirmed the hearing

The

Board rejected

Moreno-Morales's

arguments:

You were

not prejudiced by the fact that

your initial hearing was held four months

after

your

term.

completion of
The

regulations
hearing shall
hearing

state

that

be conducted
unless

Commissioner orders

a panel of

28

2.13(A).

no error in

minimum
current

"an

initial

by a

single

the

that the

conducted by

was

your

Commission's

examiner

C.F.R.

him

Regional
hearing be

two examiners."
Therefore, there

the fact that

only one

examiner
notice

conducted your

hearing.

of action was issued on August 9,

1995, within 21 days after

1995 hearing, as
The

Your

your July 20,

required by regulation.

fact that the

Bureau of Prisons may

not have immediately delivered the NOA to

you is not the fault of the Commission.

The Board

Commission

prior to

been shown

also

rejected

did not

Moreno-Morales's

disclose the

the hearing by pointing

the letter.

Justice

that

the

Department letter

out that, in fact,

Finally, the

-66

claim

he had

Board rejected Moreno-

Morales's claim

that he

should have

because a co-defendant had been

stated there

case,

were

been granted

granted leniency.

significant mitigating

and leniency

granted

in one

case

factors

leniency

The Board

in

that

does not

require

filed

a habeas

leniency in another.

On

May

16,

1996, Moreno-Morales

corpus petition, again arguing that the Parole Commission had

acted

capriciously and

internal regulations.

without a hearing.

that

it had

failed

to follow

its

The district court denied the petition

Moreno-Morales appeals.

III
III

While

appeal as

types of

there is

to the scope

some debate

among

and standard of review

Parole Commission decisions,1 for

we will

assume this decision

whether

it

is

the courts

of different

present purposes

is reviewable and test

irrational, arbitrary

or

of

it for

capricious.

The

decision is plainly none of these things.

Under

determinations

the Parole

Commission's guidelines,

are based upon two factors:

parole

offense category

____________________

1.

For

cases holding decisions of the Parole Commission are

not reviewable for abuse of

discretion, see, e.g., Jones

_________ _____

United States Bureau of Prisons, 903

_________________________________
Cir. 1990);

F.2d 1178,

v.

1183 (8th

Wallace v. Christensen, 802 F.2d 1539, 1553 (9th

_______
___________

Cir. 1986) (en

banc); Farkas v. United States,

______
_____________

38-39 (6th Cir. 1984);

744 F.2d 37,

Garafola v. Wilkinson, 721

F.2d 420,

________

_________

423-24 (3d Cir. 1983); Garcia v. Neagle, 660 F.2d 983, 988-89
______
______
(4th Cir.

1981).

Commission

are

For
subject

cases

holding decisions

to deferential

review,

of

Parole

see, e.g.,
_________

Hanahan v. Luther, 693 F.2d 629, 632 (7th Cir. 1982); Simpson
_______
______
_______
v. Ortiz, 995 F.2d 606, 608 (5th Cir. 1993).
_____

-77

and salient factor score.

See 28 C.F.R.
___

2.20.

The offense

category rates

the severity

salient factor

score

based on

As to

of the

rates the

inmate's offense.

inmate's

parole

such factors as criminal record and

the second prong,

Morales a

salient factor

score of

prognosis

age.

the Commission assigned

The

See id.
___ ___

to Moreno-

ten, the most

favorable

rating.

There are eight offense

guidelines

provide

upper and

categories, and the parole

lower confinement

categories one through

seven, from which the

depart for good cause.

See 18 U.S.C.
___

upper

limit for

category

eight

"extreme variability of the cases

C.F.R.

2.20 n.1.

Commission may

4206(c).

offenses

limits for

There is no

because

of

within this category."

If the Commission decides to exceed

the

28

the

lower limit of category eight parole eligibility by more than

forty-eight

months,

it

must

factors upon which it relied

The base

"specify the

pertinent

case

in reaching its decision."

offense category

for

perjury is

Id.
___

three,

except when the perjury concerns a criminal offense, in which

case

the

offense

category

underlying offense.

while attempting

eight

two

categories

below

the

Because Moreno-Morales committed perjury

to conceal

crime, his offense

See 28 C.F.R.
___

is

2.20 ch.6.

a murder,

an offense

category would ordinarily

The

-88

category

be six.

Parole Commission, however,

elevated Moreno-Morales's

of the fact

may

to it

offense category to

he had committed murder.

take into account

eight because

The Parole Commission

any substantial information available

when assessing the

offense category, see 28

___

2.19(c), and this decision was entirely rational in

the conviction,

the Justice

Morales's own admissions.

Department letter, and

C.F.R.

light of

Moreno-

Under the guidelines, the Commission was

obligated

to state the reasons for its decision to deny parole.

C.F.R.

2.20

n.1.

The Commission

decision

was premised upon

did this,

See 28
___

stating the

the aggravating factor

that "an

unarmed person detained by police and handcuffed was shot and

killed."

That is enough.

IV
IV

Moreno-Morales's

failed

to

follow

Moreno-Morales

"reasonable

meaningful

the

its

arguments

own rules

argues that the

access" to the

that

are

days before

also

Commission

without merit.

Parole Commission denied him

Justice Department letter

opportunity to respond to it.

letter two

the

his

and a

Moreno-Morales saw

hearing, a

fact which

he

admits,

and

continue

he

declined the

the hearing

specifically

to

give

consider his response.

fully

until a

hearing

examiner's

later date

Moreno-Morales

-- an

the

offer to

offer made

opportunity

to

Moreno-Morales complains he could not

explain his version

of events because

-99

his translator

was not fluent in

Spanish, but does

prejudiced on this

1533, 1535 (11th

account.

not explain how he

See Sacasas v.
___ _______

habeas

relief).

understood at

Rison, 755 F.2d

_____

Cir. 1985) (petitioner must

was prejudiced by Parole Commission's

In any event,

was

demonstrate he

acts to be entitled to

the hearing examiner plainly

least the gist of Moreno-Morales's assertions,

as he refers to them in his Initial Hearing Summary.

Moreno-Morales

Commission failed to

particularity as

plainly

argues

state the reasons

required by 18

incorrect,

explained that

also

as

the

parole was

that

Parole

for its denial

U.S.C.

Notice

the

of

denied because

4206(b).

with

This is

Action specifically

"an armed

detained by police and handcuffed was shot and killed."

person

We affirm the decision of the district court.2

____________________

2.

At oral

argument, the

government informed

us that

the

Parole Commission conducted another hearing regarding MorenoMorales in October

Nothing
Parole
matter.

1997 and has yet to

in this decision should

Commission from

render its decision.

be construed to prevent the

reaching its

own

decision in

that

-1010