1 Local Rule 47.5.1 provides: "The publication of opinions

that have no precedential value and merely decide particular

cases on the basis of well-settled principles of law imposes

needless expense on the public and burdens on the legal

profession." Pursuant to that rule, the court has determined

that this opinion should not be published. UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 95-10354

Summary Calendar

_____________________

Joseph Money,

Petitioner/ Appellant,

VERSUS

United States Parole Commission,

Respondent/ Appellee.

____________________________________________________

Appeal from the United States District Court

for the Northern District of Texas

(4:94-CV-377-Y)

_____________________________________________________

September 26, 1995

Before DAVIS, BARKSDALE and DeMOSS, Circuit Judges.

PER CURIAM: 1

Joseph Money appeals the denial of habeas relief. W e AFFIRM.

I.

Money, incarcerated at the Federal Medi cal Center at Fort

Worth, Texas, filed a habeas petition, challengin g the

determina tion of his presumptive parole date. He contended that

the Parole Commission's determination, establishing a presumptive

parole date which exceeded his guideline range of 40-52 months,2 Money was originally sentenced to 12 years (144 months)

imprisonment. The hearing panel recommended that the presumptive

parole date be set at 72 months. The regional commissioner

overruled the panel, recommending that the incarceration continue

to expiration (occurring after 96 months). The National Appeals

Board ruled that the presumptive parole date should be set at 72

months.

3 Unlike Money, the codefendant had a prior criminal history

which the Commission's analyst characterized as involving arrests

which were "ancient and not of a serious nature."

- 2 - should be overturned because he is an exemplary inmate with the

highest possible salient factor score an d because his similarly

situated codefendant was given a presumptive parole date within his

guideline range. Money claimed that the Parole Commission violated

its rules and abused its discretion by establishing disparate

presumptive parole dates for Money and his codefendant.

The Parole Commission's decision to exceed the guideline range

was based upon an aggravating factor

-- the amount of drugs

involve d exceeded by 22 times the amount of drugs at the lower

threshold of the offense severity category. On Money's

administrative appeal, the National Appeals Board of the P arole

Commission ordered that Money's presumptive parole date be set at

72 m onths. 2 Although partial relief was granted because of

codefendant disparity, further relief was deemed unwarranted.

According to the Appeals Board, the codefendant's equal culpability

and similar criminal hist ory compelled the conclusion that the

decision in the codefendant's case

, which established a presumptive

parole date within the guideline range, was not appropriate. 3

The magistrate judge found that there was evidence in the

record which supported the Parole Commission's decision.- 3 -

Therefore, the magistrate judge concluded that Money had failed to

demonstrate that the Parole Commission's decision was unwarranted.

The district court conducted a de novo review and, over Money's

objection, adopted the findings and conclusions of the magistrate

judge and entered judgment denying habeas relief.

II.

Money contends that the Parole Commission failed to follow its

own rules in setting his presumptive parole date at 72 months, when

his equally culpable codefendant received a presumptive parole date

of 48 months.

The Parole Commission has "absolute discretion concerning

matters of parole", and "may use all relevant, available

information in making parole determinations". M addox v. U.S.

Parole Comm'n

, 821 F.2d 997, 999 (5th Cir. 1987). "The Commission

may take into account any substantial information available to it

in establishing the prisoner's offense severity rating , salient

f actor score, and any aggravating or mitigating circumstances,

provided the prisoner is apprised of the information and afforded

an opportunity to respond." Id . (internal quotations omitted).

[T]his Court cannot disturb a decision by the Commission

setting the time for parole release absent a showing that

the action is flagrant, unwarranted, or unauthorized. So

long as due process requ irements are observed and the

Commission has acted within its statutory authority, we

will not usurp the Commission's position as established

in the statutory scheme enacted by Congress.

Maddox

, 821 F.2d at 1000 (internal quotati ons and citations

omitted).- 4 -

"The Parole Commission guidelines provide instructions for

rating the severity of various `offen se behaviors.' Where

circumstances warrant, a decision outside the guidelines may be

appropriate." S

heary v. U.S. Parole Comm'n

, 822 F.2d 556, 558 (5th

Cir. 1987) (citing 28 C.F.R. § 2.20(d)).

The Parole Commission for "good cause" may go outside its

guidelines, provided that the prisoner is furnished

written notice stating with particularity the reasons for

its determination, including a summary of the information

relied upon. "[G]ood cause" means substantial reason and

includes only those grounds put forward by the Commission

in good faith and which are not arbitrary, irrational,

unreasonable, irrelevant or capricious. It includes such

factors as whether

. . . the prisoner was involved in an

offense with an unusual degree of sophistication o r planning, or has a lengthy prior record, or was part of

a large scale conspiracy or continuing criminal

enterprise.

Maddox

, 821 F.2d at 1000-01 (footno tes and internal quotations

omitted). "Although the Commission's decisions must have a factual

basis, judicial review is limited to whether there is `some

evidence' in the record t o support the Commission's decision."

Maddox 821 F.2d at 1000 (footnote and citation omitted).

Under § 2.20-09, of the U.S. Parole C ommission Rules and

Procedures Manual (1995), the term "`[u]nwarranted codefendant

disparity' refers to different p a role decisions for similarly

situated offenders where no legitimate reasons for the difference

in decisions exists. It is to be remembered that different

decisions for codefendants are not necessarily inappropriate."

Example 7, illustrating the application of this section, provides:

Three codefendants appear equally culpable, have similar

salient factor scores, have identical sentences, and

appear to have no other relevant differences.

Significantly different decisions by the Commission in- 5 -

such cases constitute unwarranted disparity and are to be

avoided. Note: i f it appears that the Commission has

erroneously granted unwarranted leniency to one

codefendant, it is not appropriate to compound such error

by providing unwarranted leniency to other codefendant

cases.

Id. (Example 7) (emphasis added); see Sheary

, 822 F.2d at 559

(noting Example 7 in case involving disparate sentences); see also

Coleman v. Perrill , 845 F.2d 876, 879 (9th Cir. 1988) (Commission

was not bound by its own regulations concern ing codefendant

disparity because regulations were merely precatory and, therefore,

failure to follow regulations was not revie wable by court of

appeals).

In the instant case , evidence in the record tends to

demonstrate that the leniency accorded the codefendant was

unwarranted. Because Money's offense behavior involved at least 22

times the amount of drugs at t he lower threshold of the offense

seve rity category, the National Appeals Board determined that a

decision above the guidelines was warranted. The lower threshold

of offense severity category six was met in offenses involving

200,000 doses of amphetamine. Money's offense involved 4,536,000

dosage units, and he reaped approximately $750,000 in profits from

the criminal enterprise between 1984 and 1988. The Commission's

analyst found that Money and the codefendant were "almost equally

culpable," had identical guideline ranges of 40-52 months,

ide ntical salient factor scores, and similar criminal histories.

Because the codefendant was equally culpable, the Commission's

determination that the codefendant's parole decision was

excessively lenient w as not unwarranted; and, accordingly, the- 6 -

dispar ate decision in Money's case was not inappropriate.

Therefore, the district court properly denied habeas relief.

III.

For the foregoing reasons, the judgment is

AFFIRMED.