1Treaty on Executions of Penal Sentences, Nov. 25, 1976,

U.S.-Mex., 28 U.S.T. 7399, T.I.A.S. No. 8718 [herein referred to

as "the treaty"]. For a detailed discussion of this treaty and

the attendant legislation, jurisprudence, regulations, and

interpretative sources, see Cannon v. U.S. Dept. of Justice, U.S.

Parole Comm'n, 973 F.2d 1190 (5th Cir.1992). 

1

United States Court of Appeals,

Fifth Circuit.

No. 94-40126

Summary Calendar.

Lionel NAVARRETE, Petitioner,

v.

UNITED STATES PAROLE COMMISSION, Respondent.

Oct. 10, 1994.

Appeal from the Sentencing Determination of the United States

Parole Commission Section 4106A.

Before DUHÉ, WIENER and STEWART, Circuit Judges.

PER CURIAM:

Lionel Navarrete is an American citizen who was arrested,

convicted, and sentenced in Mexico for murder. Pursuant to the

Prisoner Transfer Treaty between the United States and Mexico,1 he

was transferred to the United States and incarcerated at the

Federal Correctional Institution at La Tuna, Texas for completion

of his sentence. Navarrete appeals the United States Parole

Commission's determination of a release date from his Mexican

sentence. For the reasons which follow, we dismiss the appeal.

FACTS AND PROCEDURAL HISTORY

United States citizen, Lionel Navarrete, his friend, Wayne

Gurlock, III, were arrested in Mexico on August 21, 1991 and
2

convicted for the murder of two people. On May 4, 1992, the

Mexican court sentenced Navarrete to twenty-one years imprisonment.

Pursuant to the treaty, Navarrete was transferred to the United

States on July 16, 1993 to complete the service of sentence. He

filed a motion for downward departure based upon his innocence of

the crime for which he had been convicted in Mexico. Following a

treaty transfer hearing, the United States Parole Commission

determined that the applicable guideline range was 168-210 months

and that a downward departure was not warranted in this case. The

Commission set a release date of 180 months from the date of his

arrest (August 20, 2006), after which Navarrete is to be placed on

supervised release until the expiration of his twenty-one year

Mexican sentence.

Navarrete appeals the decision of the Commission, asserting

that it should have departed downward from the guidelines range due

to evidence of his innocence that was presented at the treaty

transfer hearing. As discussed below, we find no violation of law

in the Commission's refusal to grant Navarrete's motion for

downward departure.

In his brief, Navarrete also asserts that the Commission

should have adjusted his release date for the good conduct time

credits to which he is entitled. However, he subsequently filed a

Motion to Correct Brief which states the following:

Upon further consideration, appellant no longer desires

to pursue this issue and respectfully moves this Court to

delete such issue from consideration in this appeal.

We granted Navarrete's motion and, for this reason, we do not
3

consider whether the Commission should have included his good time

credit as part of its release date calculation.

STANDARD OF REVIEW

When an offender is transferred to the United States to serve

a sentence of imprisonment, the United States Parole Commission

shall, without unnecessary delay, determine a release date and a

period and conditions of supervised release, as though the offender

were convicted in a United States district court of a similar

offense. 18 U.S.C. § 4106A(b)(1)(A). The court of appeals shall

decide and dispose of an appeal of the Commission's 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. 18 U.S.C. § 4106A(b)(2)(B).

Accordingly, we review the Commission's determination de novo.

Molano-Garza v. U.S. Parole Commission, 965 F.2d 20, 23 (5th

Cir.1992). 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." 18 U.S.C. § 3742(e) and (f); U.S.

v. Buenrostro, 868 F.2d 135, 136 (5th Cir.1989). We also accept

the Commission's factual findings unless clearly erroneous and give

due deference to the Commission's application of the guidelines to

the facts. 18 U.S.C. §§ 3742(e) and 4106A(b)(2)(B).

DISCUSSION
 

2The record reveals that the Commission agreed with the

panel of parole examiners which had considered both the evidence

presented at the hearing and the motion for departure but did not

deem this a case for departure from the guidelines. The record

also indicates that, absent the evidence presented by Navarrete,

the parole examiners would have recommended a release date at the

end of the twenty-one year term imposed in Mexico. Instead, the

examiners decided to give Navarrete nine months' consideration

from the middle of the guideline. The Commission accepted this

recommendation and set a release date in accordance therewith. 

4

Navarrete asserts that "the Commission inappropriately

considered innocence only for modification within the guideline,

instead of a departure from the applicable guideline," and that

"[t]hough the Treaty makes no provision for the mitigating

circumstance of innocence, the purpose of the Federal Sentencing

Guidelines would be better served to acknowledge innocence,

especially in cases where the facts have been corroborated." He

argues that the Commission should have considered his codefendant's

statement (that he was not involved in the murder) in its decision

whether to depart from the applicable guideline range.2 Navarrete

also asserts that, because the Commission found evidence of torture

in this case, a downward departure based on his innocence should

have been the correct point of origin in computing his release

date.

 The Commission is required to determine a release date, and

a period and conditions of supervised release, for Navarrete to

serve a sentence of imprisonment as though he were convicted in a

United States district court of a similar offense. 18 U.S.C. §

4106A(b)(1)(A). Navarrete's obligation to the Government has

already been established by the sentence imposed by Mexico's court.
5

See Thorpe v. U.S. Parole Commission, 902 F.2d 291, 292 (5th

Cir.1990). Navarrete's argument misconstrues the Commission's

function. The Commission is authorized to determine a release date

and period of supervised release, not to sentence the transferred

prisoner. See and compare, Molano-Garza, supra, 965 F.2d at 24-25

and Thorpe, supra. Because the Commission is only determining a

release date and not sentencing the offender, we are not persuaded

by Navarrete's argument that the Commission should have considered

evidence of his innocence presented at the hearing.

Section 4106A(b)(2)(B) directs this court to dispose of this

appeal in accordance with 18 U.S.C. § 3742 as though the

determination appealed had been a sentence imposed by a United

States district court. As already noted, we will uphold a sentence

unless it (1) was imposed in violation of law, (2) was imposed as

a result of incorrect application of the sentencing guidelines, (3)

is a departure from the applicable guideline range and is

unreasonable, or (4) was imposed for an offense for which there is

no applicable sentencing guideline and is plainly unreasonable. 18

U.S.C. § 3742(e), (f). The Commission determined that the

applicable guideline range for this offense was 168-210 months and

decided Navarrete should be released from imprisonment after

serving 180 months. This release date is within the guideline

range. The Commission did not depart from the applicable range.

The Commission's denial of Navarrete's request for a downward
 

3The only guideline cited by Navarrete is U.S.S.G. §

1B1.1(i), which is an application instruction to

Refer to Parts H and K of Chapter Five, Specific

Offender Characteristics and Departures, and to any

other policy statements or commentary in the guidelines

that might warrant consideration in imposing sentence.

Part H of Chapter Five sets forth policy statements

regarding whether various factors are relevant in

determining an appropriate sentence. Part K sets forth

policy statements regarding discretionary departures from

the guidelines. Neither part suggests that innocence is a

factor which renders the decision about a downward departure

mandatory rather than discretionary. 

6

departure does not involve any application of the guidelines.3

Under similar circumstances, we stated the following in Buenrostro,

supra, 868 F.2d at 139:

It follows that we will uphold a district court's refusal

to depart from the guidelines unless the refusal was in

violation of law.... A claim that the district court refused

to depart from the guidelines and imposed a lawful sentence

provides no ground for relief.

Thus, we do not review a district court's refusal to depart from

the guidelines unless the refusal was in violation of the law, U.S.

v. Burleson, 22 F.3d 93 (5th Cir.1994), and likewise, we do not

review the Commission's refusal to depart from the guideline range

unless the refusal was in violation of the law.

Navarrete does not challenge the Commission's determination of

either his offense level (33) or his criminal history category

(III). Instead, he challenges the Commission's decision not to

depart from the applicable guideline range. No law would compel a

departure in this case, even were the facts as Navarrete contends.

See and compare, U.S. v. Thomas, 870 F.2d 174, 176 (5th Cir.1989).

We review this challenge only for violation of the law, and we find
7

none. Accordingly, we do not review the Commission's refusal to

depart from the applicable range of sentence under the guidelines.

APPEAL DISMISSED.