* 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this opinion should not be published and is not precedent except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.

 

2Treaty on Executions of Penal Sentences, Nov. 25, 1976, U.S.-

Mex., 28 U.S.T. 7399, T.I.A.S. No. 8718 [“Treaty”]. 

IN THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

______________________________________

No. 98-60301

Summary Calendar

______________________________________

CONWAY PHILLIPS, JR.,

Petitioner,

versus

UNITED STATES PAROLE 

COMMISSION,

Respondent. 

_____________________________________________

Appeal from the Determination of the

United States Parole Commission

(18 U.S.C. § 4106A)

_____________________________________________

April 7, 1999

Before JOLLY, SMITH, AND WIENER, Circuit Judges. 

PER CURIAM:*

Conway Phillips, a/k/a Jihad Aziz Bihal, was arrested in

Mexico and convicted of transporting marijuana. A Mexican court

sentenced him to serve 10 years. Pursuant to the United StatesMexico Treaty on the Execution of Penal Sentences,2 Phillips was

transferred to the United States to serve his sentence. After the

transfer, the Parole Commission (the “Commission”) held a hearing
 

3Molano-Garza v. United States Parole Comm’n, 965 F.2d 20, 23

(5th Cir. 1992).

 

4United States v. Navarrete, 34 F.3d 316, 318 (5th Cir. 1994)

(quoting 18 U.S.C. § 3742(e) & (f)).

 

5Id.; 18 U.S.C. § 3742(e).

2

to determine his release date and ordered Phillips to serve 52

months based, in part, on its determination that Phillips had been

arrested transporting 89 kilograms of marijuana, as reflected in

the Mexican sentencing documents. Phillips appeals the

Commission’s release date determination, challenging the

Commission’s finding concerning the quantity of drugs involved in

his offense. We affirm. 

I. Standard of Review

We review de novo the Commission’s determination of the

release date for a prisoner transferred to the United States under

the Treaty.3 “We will uphold the sentence unless it <was imposed in

violation of law [or] imposed as a result of an incorrect

application of the sentencing guidelines,’ or <is outside the

applicable guideline range and is unreasonable or was imposed for

an offense for which there is no applicable sentencing guideline

and is plainly unreasonable.’”4 We review the Commission’s factual

findings under the clearly erroneous standard.5

II. Merits

Phillips primarily contends that the Commission incorrectly

allocated to him, rather than to the government, the burden of

proof regarding the quantity of drugs and, consequently, improperly

discounted the evidentiary value of a copy of an undated document
 

6Ms. Page appears to be Phillips’s fiancee, though the record

is unclear on this point.

 

7See Treaty, art. VI (“The Transferring State shall have

exclusive jurisdiction over any proceedings, regardless of their

form, intended to challenge, modify or set aside sentences handed

down by its courts.”), art. II (“That no proceeding by way of

appeal or of collateral attack upon the offender’s conviction or

sentence be pending in the Transferring State and that the

prescribed time for appeal of the offender’s conviction or sentence

has expired.”).

 

818 U.S.C. § 3244 (Under prison transfer treaty, “the country

in which the offender was convicted shall have exclusive

jurisdiction and competence over proceedings seeking to challenge,

modify, or set aside convictions or sentences handed down by a

court of such country.”).

3

sent by facsimile from the U.S. Consulate to Robin Page,6 after

Phillips’s arrest indicating that Phillips’s offense involved his

possession of only 40 kilograms of marijuana.

The government responds that, under the Treaty7 and its

implementing legislation,8 the Parole Commission has no authority

to review a finding of fact of the Mexican court —— namely, that

Phillips was guilty of possessing 89 kilograms of marijuana. The

government asserts in the alternative that, even if the Commission

was not precluded from entertaining Phillips’s challenge to the

Mexican court’s findings of fact, the Commission’s determination

that Phillips’s possessed and transported 89, rather than 40,

kilograms was not clearly erroneous. As a corollary to this latter

argument, the government asserts that Phillips’s contention that he

should not bear burden of proof on the quantity issue is simply an

attempt to execute an end run around the clearly erroneous standard

under which this Court reviews the Commission’s findings of fact.

Because we agree with the government that the Commission’s finding
 

9The government suggests that, perhaps, only the 40 kilograms

of marijuana found in the tires was reported to the U.S. Consulate,

thus explaining the discrepancy between the Mexican court’s finding

and the document sent by facsimile from the consulate.

4

that Phillips’s possessed 89, rather than 40, kilograms of

marijuana was not clearly erroneous, we find it unnecessary to

address the scope of the Commission’s authority to review a

transferring court’s findings of fact.

There was a surfeit of evidence from which the Commission

could determine that Phillips had been convicted of possessing 89

kilograms of marijuana. First, the official statements of the

arresting officers indicated that they had found 89 kilograms of

marijuana in the vehicle Phillips had been driving. Second, the

Mexican sentencing court made a specific finding that Phillips had

possessed 89 kilograms of marijuana. Third, there is a report

prepared by Mexican prison authorities that includes a brief

statement in Spanish purporting to be Phillips’s version of the

offense that translates to “50 kilograms and another 40 kilograms

in the tires.”9 Finally, at the time of, and as a precondition to,

his transfer, Phillips stated that he “agree[d] with the

Government’s version” of his conduct and that he “ha[d] no

objections to the evidence accepted by the Mexican court.” 

Arrayed against this evidence is but a single unauthenticated,

undated document that provides no information regarding the source

of its contents or even regarding the author of the document. In

light of all of the evidence, the Commission’s finding that

Phillips was convicted for possessing 89 kilograms is not clearly
 

10Phillips additionally asserts that a Commission examiner made

inconsistent statements regarding the quantity of drugs involved in

his offense when determining the guideline range and setting the

release date within that range, making review of Phillips’s release

date impossible. Phillips’s assertion is meritless. The examiner

explicitly stated that he found that Phillips had been convicted of

possessing 89 kilograms and, accordingly, set Phillips’s base

offense level as 24. See U.S.S.G. § 2D1.1(c) (establishing base

level 24 for offense involving at least 80 kilograms but less than

100 kilograms of marijuana). In addition, the hearing summary,

which was reviewed and approved by the examiner, stated that the

examiner was not persuaded by the documentary evidence submitted by

Phillips regarding the quantify of marijuana, but rather accepted

the 89 kilogram finding of the Mexican sentencing court. It is

clear beyond doubt that the Commission found that Phillips was

convicted of possessing and transporting 89 kilograms of marijuana.

5

erroneous.10 

AFFIRMED.