* Pursuant to 5 TH C IR . R. 47.5, the court has determ ined th at this opinio n s hould not be published and is not precedent except under the limit ed circumstances set fo rth in 5 TH C IR . R. 47.5.4. 1 United States Court of Appeals Fifth Circuit 

## FILED April 10, 2007 Charles R. Fulbruge III Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________________ No. 06-60010

__________________________ WILLIAM JOSEPH CALABRIA, Petitioner,
versus UNITED STATES PAROLE COMMISSION, Respondent.

___________________________________________________

Petition for Review of an Order of the Unit ed States Parole Com missio n Register No. 58861-180

___________________________________________________ Before JONES, Chief Judge, HIGGINBOTHAM, and CLEMENT, Circuit Judges. PER CURIAM: * William Jo seph Calabria, a United States cit izen convicted in a Mexican court of attempted murder and transferred to the Unit ed States to serve his sentence, peti tions fo r review of his release date set by the Unit ed States Parole Com missio n (“Parole Com

missio n”). Calabria argues th at the Parole Com

missio n’s release date determ inat io n was unreasonable in light of the 18 U.S.C. § 3553(a) sentencing factors. We disagree and affirm. I. FACTS AND PROCEEDINGS2

Calabria was sentenced to 85 mo nt hs of imprisonment by a Mexican court fo llo wing a conviction fo r attem

pted murder. Pursuant to a pri soner transfer treaty between the Unit ed States and Mexico, he was transferred to a Unit ed States pri son at which time the Parole Commission was required to determ

ine a release date and period of supe rvised release. S ee 18 U.S.C. § 4106A(b)(1)(A) . A Parol e Com missio n examiner conducted a hearing and recommended that Calabria be released aft er the expiration of his 85 mo nt h sentence impo sed in Mexico. A panel of the Parole Com

missio n agreed and set Calabria’s release date accordingly. The panel also concluded th at, if the Bureau of Pri sons releases Calabria early based upon earned good-time credits, Calabria would be subject to a period of supervised re lease for the remainder of the 85 months, one condition of which is Calabria’s participation in a substance abuse treatment program. II. DISCUSSION The Parole Com

missio n must determ

ine the release date fo r a fo reign-sentenced pri soner who has been transferred to the Unit ed States pursuant to a pri soner transfer treaty . Id. In determining a release date, the Parole Com missio n does not re-sentence the transferred pri soner; inst ead, it converts the fo reign sentence int o a determ inat io n of a release date and a pe ri od of supervised release as th ough the pri soner had been convicted in a Unit ed States distric t court of a similar o ffense. S ee Navarrete v. U.S. Parole Comm’n , 34 F.3d 316, 319 (5th Cir. 1994). “The com bin e d periods of imprisonment and supervised release th at result from [the Parole Com missio n’s] determ

inat io n shall not exceed the t erm of imprisonment imposed by the foreign court on that offender.” 18 U.S.C. § 4106A(b)(1)(C); see also Hansen v. U.S. Parole Comm'n , 904 F.2d 306, 310–11 (5th Cir. 1990). This court reviews a release date determ inat io n made by the Parole Com missio n as though it “had been a sentence imposed by the Unit ed States district court.” Molano-Garza v. U.S. Parole3

Comm’n , 965 F.2d 20, 23 (5th Cir. 1992) (int ernal quotation om it ted). Aft er Booker , as before, the application of the sentencing guidelines is reviewed de novo and factual findin gs are reviewed f or
c l ear error. See United States v. Smith , 440 F.3d 704, 706 (5th Cir. 2006). This court reviews the ult imat e sentencing determ inat io n fo r reasonableness. United States v. Caldwell , 448 F.3d 287, 290 (5th Cir. 2006). Calabria maint ains th at his release date determ inat io n was ult imat ely unreasonable because the Parole Com

missio n examiner did not properly consider the § 3553(a) factors. In particular, Calabria asserts th at the examiner gave the guidelines range calculation determ inat ive weight and did not give enough weight to the alleged physical and ment al abuse suffered by Calabria while he was incarcerated in Mexico. We disagree. Before recom mending a release date th at was exactly the length of the sentence impo sed in Mexico, the Parole Com missio n examiner had properl y calculated the guidelines range to be 120 to 150 m

onths using the most similar U.S. Code of fense. A review of the record reveals th at the Parole Com

missio n examiner th ought th at a downward departure f or the abuse Calabria endured was perhaps warranted. It rejected such a departure, however, not because the guidelines range was determ

inat ive, but because the fo reign sentence it self was mo re th an a sufficient departure from the guidelines range calculation to take the abuse into account. The examiner’s statements at the hearing reveal th at she exercised her discretion under the advisory guidelines in recommending Calabria’s release date. The examiner’s statements and recommendation to the Parole Com missio n also exhibit her consideration of the § 3553(a) sentencing factors, including the serious nature of Calabria’s attem pted murder offense, Calabria’s treatm ent while incarcerated in Mexico, Calabria’s history of substance4

abu se, and Cal abria’s need for substance abuse treatment upon release. The examiner properly calculated the guidelines range, considered the guidelines advisory, and adequatel y co nsidered the relevant § 3553(a) factors when formulating her recommendation. Considering the full record, the determ inat io n of Calabria’s release date was reasonable. See Thorpe v. U.S. Parole Comm’n , 902 F.2d 291, 292 (5th Cir. 1990) (per curiam) (rej ecting the peti tioner’s argument fo r a downward departure based upon his health and abuse suffered when the Parole Com missio n considered the § 3553(a) factors); see also Odili v. U.S. Parole Comm’n , 474 F.3d 1255, 1264–65 (11th Cir. 2007) (rej ecting, post- Booker , a reasonableness challenge to a release date determ inat io n where the record revealed that the hearing examiner considered the § 3553(a) factors, albeit not by name). For the foregoing reasons, the Parole Commission’s determination is AFFIRMED.