* 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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-60072

Summary Calendar

JOHN PATRICK OTIS, JR

Petitioner

v.

UNITED STATES PAROLE COMMISSION

Respondent

Petition for Review of an Order of the

United States Parole Commission

(18 USC 4106A)

Before JOLLY, CLEMENT, and HAYNES, Circuit Judges.

PER CURIAM:*

John Patrick Otis, Jr., a United States citizen, was convicted in Mexico of

drug possession and was subsequently transferred to the United States to serve

his sentence. He petitions for review, arguing that the United States Parole

Commission’s (“Parole Commission”) determination of his release date and

period of supervised release was unreasonable in the light of the sentencing

factors enumerated in 18 U.S.C. § 3553(a). We disagree and DENY the petition.

United States Court of Appeals

Fifth Circuit

F I L E D

August 19, 2008

Charles R. Fulbruge III

Clerk
No. 08-60072

1 Treaty Between the United States of America and the United Mexican States on the

Execution of Penal Sentences, U.S.-Mex., Nov. 25, 1976, 28 U.S.T. 7399.

2

I.

Otis was arrested in Mexico after Mexican authorities discovered crystal

methamphetamine hidden in the bumper of Otis’s car. Otis was convicted for his

offense and sentenced to 60 months of imprisonment. Mexico transferred Otis

to the United States to serve his sentence pursuant to a prisoner transfer

treaty.1 The Parole Commission was then obliged to determine a release date

and a period of supervised release. 18 U.S.C. § 4106A(b)(1)(A). In a hearing

before the parole examiner, Otis alleged that he was abused by Mexican

authorities and that he should receive a reduced sentence as a result. The

Parole Commission ultimately determined that Otis should be released after 60

months of imprisonment; release before the expiration of that period would be

governed by supervisory conditions the Parole Commission imposed until the 60-

month period elapsed. Otis now argues, on the strength of the abuse he

allegedly suffered in Mexico, that the Parole Commission erred by not giving him

a release date requiring less prison time than the sentence imposed in Mexico,

in derogation of 18 U.S.C. § 3553(a).

II.

The Parole Commission must “determine a release date and a period and

conditions of supervised release for an offender transferred to the United States

to serve a sentence of imprisonment, as though the offender were convicted in

a United States district court of a similar offense.” 18 U.S.C. § 4106A(b)(1)(A);

Navarrete v. U.S. Parole Comm’n, 34 F.3d 316, 319 (5th Cir. 1994). And this

court reviews that determination “in accordance with [18 U.S.C. § 3742] as

though the determination appealed had been a sentence imposed by a United

States district court.” § 4106A(b)(2)(B). “Thus, we review the Parole Board’s
No. 08-60072

2 There is uncertainty within this circuit about the Parole Commission’s power to

impose periods of imprisonment and supervised release amounting to less than the foreign

sentence. Compare Cannon v. U.S. Dep’t of Justice, U.S. Parole Comm’n, 973 F.2d 1190,

1195-98 (5th Cir. 1992) (“[T]he Commission may not authorize a release date which results in

the total period of incarceration, plus the period of supervised release, being less than or

greater than the totalforeign-court-imposed sentence.”) and Welsh v. U.S. Parole Comm’n, 513

F.3d 169, 171 (5th Cir. 2008) (citing Cannon as authority in this circuit) with Paura v. U.S.

Parole Comm’n, 18 F.3d 1188, 1189 (5th Cir. 1994) (declaring statements in Cannon requiring

Parole Commission to match foreign sentence dicta). Our denial of the petition does not

require us to decide this issue.

3

construction of § 4106A and the Sentencing Guidelines de novo. When reviewing

the Commission's factual findings, this court applies the clearly erroneous

standard.” Molano-Garza v. U.S.Parole Comm’n, 965 F.2d 20, 22 (5th Cir. 1992)

(citation omitted). We review the Parole Commission's ultimate determination

for its substantive reasonableness under an abuse of discretion standard. See

Gall v. United States, 128 S.Ct. 586, 597 (2007).

Although the transferred prisoner is to be treated by the Parole

Commission as if the prisoner’s offense had been committed in the United

States—and we are to treat the Parole Commission’s determination of a release

date as a sentence imposed by a district court—the foreign sentence remains

relevant. Specifically, the periods of imprisonment and supervised relief

imposed by the Parole Commission cannot together exceed the foreign sentence.2

§ 4106A(b)(1)(C). If a foreign sentence is less than the sentence that would

otherwise be applied by the Sentencing Guidelines, we treatthe foreign sentence

as analogous to a statutory maximum under § 5G1.1 of the Sentencing

Guidelines. Thorpe v. U.S. Parole Comm’n, 902 F.2d 291, 292 (5th Cir. 1990).

Accordingly, the foreign sentence is treated as the guideline sentence. See id.

Here, a parole examiner conducted a hearing in which she calculated

Otis’s proper Guidelines range to be 78-97 months. The examiner acknowledged

that Otis’s claims of abuse were credible, but determined that departure below

60 months was not warranted, particularly because of the statutory requirement
No. 08-60072

4

that Otis be treated as if he had committed the crime in the United States, the

sentence for which was more severe than that he received in Mexico. The Parole

Commission agreed with this assessment. Otis contends that, because his

foreign sentence of 60 months is treated as the Guidelines sentence, any

warranted departure must be made from the 60-month period. Thus, if Otis’s

testimony regarding the abuse he suffered is credited, the Commission erred in

its determination of a period of imprisonment and supervised release

functionally equivalent to 60 months. The only authority that Otis cites in his

favor rejected the very same argument as without support in law. See id. at

292–93. And we have rejected this argument on other occasions. See, e.g., Lara

v. U.S. Parole Comm’n, 990 F.2d 839, 841 n.4 (5th Cir. 1993); Calabria v. U.S.

Parole Comm’n, 227 F. App’x 336, 338 (5th Cir. 2007); accord Tramel v. U.S.

Parole Comm’n, 100 F.3d 129, 131–32 (11th Cir. 1996). Otis has not offered any

compelling reason for us to depart from these authorities.

III.

Because the law of this circuit clearly countenances the Parole

Commission’s decision here, we DENY the petition.