* Pursuant to 5 TH C IR

. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the l imited

circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

September 5, 2003

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 02-60537

Summary Calendar

______________________

GABRIEL BUITRON,

Petitioner-Appellant,

versus

UNITED STATES PAROLE COMMISSION,

Respondent-Appellee.

_____________________________________

Petition for Review of an Order of the

United States Parole Commission

____________________________________

Before JONES, STEWART, and DENNIS, Circuit Judges.

PER CURIAM: *

Gabriel Buitron (“Buitron”) was arrested, convicted, and sentenced to 33 0 months

imprisonment in Mexico for aggravated homicide. Pursuant to a prisoner transfer treaty between the

United States and Mexico, Buitron was transferred to the United States to serve his foreign sentence.

After several hearings, the United States Parole Commission (“Parole Com mission”) ordered that1 Treaty on Executions of Penal Sentences, Nov. 25, 1975, 28 U.S.T. 7399, T.I.A.S. No. 8718.

2 Buitron serve 312 months of imprisonment. Buitron appeals the Parole Commission’s determination.

For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On May 31, 1997, Buitron strangled a woman to death at the Hotel Buenos Aries, Colonia

Centra, Mexico. According to Buitron, he met the woman at a bar and after several drinks she offered

to have sexual relations with him for five hundred pesos. Buitron obtained the five hundred pesos and

checked into the Hotel Buenos Aires under a false name. Once inside, Buitron gave the woman the

500 pesos. Shortly thereafter, the woman allegedly slapped him and shouted profanities at him. In

response, Buitron demanded his money back. When the woman said no, he grabbed her and strangled

her to death. After the murder, Buitron left the hotel room with the five hundred pesos.

On August 17, 1997, Buit ron was arrested for the victim’s death. On December 5, 1997,

Buitron was convicted of aggravated homicide and sentenced to twenty seven years and six months

imprisonment. Pursuant to the Treaty on the Execution of Penal Sentences, Buitron was transferred

to the United States to serv e his sentence. 1 Following his transfer, Buitron was interviewed by a

probation officer, who pre pared a post-sentence investigation report. In the report, the probation

officer noted that Buitron had also been convicted of intentional simple homicide in Mexico for which

he was sentenced to ten years in prison, but served less than three years. The probation officer noted

that Buitron committed the prior offense in the same manner as this case

- he strangled a woman to

death in a hotel room after drinking and socializing with her. The probation officer further noted that

Buit ron committed the instant offense nine months after being released from prison for t he first

offense. Buitron did not deny these allegations. The probation officer concluded that first degree3

murder, which carries a base level offense of 43, was most analogous to the offense charged by the

Mexican authorities. Buitron objected to the characterization of his offense. The Parole Commission

scheduled a hearing for June 20, 2002.

Prior to the hearing, Buitron was evaluated by a psychologist, Dr. Karen Gold (“Dr. Gold”).

In a written report, Dr. Gold found “Buitron to be a man of average intelligence, with a good deal

of personal insight and a recognition that alcohol and anger have been weighty problems for hi m

throughout his adult life.” Dr. Gold also found Buitron “open t o learning and psychological

intervention” and that he possessed “the intellectual abilit y to profit from past experience. Dr. Gold

concluded that the “likelihood of Buitron reoffending or posing a fu ture danger i s very l ow.”

At the Parole Commission hearing, Buitron submitted Dr. Gold’s report and argued that his

offense was more analogous t o voluntary manslaughter, and at worst, second-degree murder.

Buitron also requested a downward departure because of the torture that he allegedly received in

Mexico. The hearing examiner found that Buitron’s offense was most analogous to second degree

murder, which resulted in an offense level of 30, and with Buitron’s criminal history category of I,

produ ced a guideline range of 97 to 121 months’ imprisonment. The hearing examiner rejected

Buitron’s request for a downward departure, finding his torture allegation unpersuasive. Relying on

U.S.S.G. §§ 4A1.3 and/or 5K2.0, the hearing examiner recomm ended departing above that range

with a release date after service of 204 months’ imprisonment. The hearing examiner found that

Buitron’s criminal history score did not reflect the seriousness o f his criminal history and the

likelihood that he would commit future crimes. The hearing examiner forwarded the recommendation

to a Parole Commission attorney

, who in turn reco mmended that Buitron’s sentence be upwardly

departed to t he maximum sentence possible - 330 months imprisonment. The Parole Commission4

adopted the at t o rney’s recommendation. Buitron appealed the Parole Commission’s sentence

de t ermination to this Court. After receiving a copy of Buitron’s appellate brief, the Parole

Commission gra nt ed Buitron a new hearing to consider whether the upward departure was

appropriate under both

§§ 4A1.3 and 5K2.0. As a result, Buitron’s first appeal to this Court was

dismissed as moot.

On May, 16, 2003, the Parole Commission held a second he aring. The hearing examiner

recommended that the Parole Commission set Buitron’s release date after 330 months of service. The

hearing examiner’s recommendation was reviewed by a Parole Commission attorney

, who in turn

recommended a release date after 312 months of service. The Parole Commission adopted the

attorney’s recommendation and orde red that Buitron serve 312 months of imprisonment. Buitron

appeals.

STANDARD OF REVIEW

“This Court reviews the [Parole] Commission’s release determination as though it ‘had been

a sentence imposed by the United States district court.’” Molano-Garza v. U.S. Parole Comm’n

, 965

F.2d 20, 23 (5th Cir. 1992) (quoting Hansen v. U.S. Parole Comm’n

, 904 F.2d 306, 309 (5th Cir.

1990)); see also 18 U.S.C. § 4106A(b)(2)(B). We review the Parole Commission’s construction of

§ 4106A and the sentencing guidelines de novo

. Molano-Garza

, 965 F.2d at 23. We review the Parole

Commission’s upward departure from the Sentencing Guidelines for abuse of discretion. See United

States v. Winters

, 174 F.3d 4 78, 482 (5t h Cir. 1999). A departure is not an abuse of discretion if

acceptable reasons are offered for the departure and the departure is reasonable. See United States

v. Lambert

, 984 F.2d 658, 663 (5t h Cir. 1993). When reviewing the Parole Commission’s factual

findings, this Court applies the clearly erroneous standard. See Molano-Garza , 965 F.2d at 23.5 DISCUSSION

Pursuant to § 4A1.3, the Parole Commission departed upward to 312 months imprisonment

because: 1) Buitron’s prior Mexican conviction was not taken into consideration in calculating his

criminal history score, and 2) it was likely that Buitron would commit serious additional criminal

conduct in the future. Buitron argues that the Parole Commission’ s det ermination that he posed a

likelihood of future serious criminal activity was unreasonable because it was based in large part on

the hearing examiner’s subjective belief that individuals who suffer from alcohol abuse pose a greater

danger of recidivism. The Parole Commission retorts that its decision was reasonable because

Buitron posed a high risk of recidivism. We agree with the Parole Commission.

Section 4A1.3 provides that a sentence o u tside the guideline range is permissible if “the

criminal history category does not adequately reflect the seriousness of the defendant’s past criminal

conduct or the likelihood t hat t he defendant will commit other crimes. . . .” The introduction to

chapter four of the Sentencing Guidelines provides the following statement with respect to recidivism:

The Comprehensive Crime Control Act sets forth four purposes of sentencing. . . A

defendant’s record of past criminal conduct is directly relevant to those purposes. A

defendant wi t h a reco rd of prior criminal behavior is more culpable than a first

offender and thus deserving of greater punishment.

. .To protect the pu blic from

further crimes of the particular defendant, the likelihood of recidivism and future

criminal behavior must be considered. Repeated criminal behavior is an indicator of

a limited likelihood of successful rehabilitation. While empirical research has shown

that other factors are correlated highly with the likelihood of recidivism, e.g., age and

drug abuse, for policy r easons they were not included here at this time. The Parole

Commission has made no definit ive judgment as to the reliabilit y of the existing data.

U.S.S.G., Introductory Commentary to chapter Four, at § 4.1.; s ee also United States v. Riggs

, 967

F.2d 561, 563 (11th Cir. 1992) (“Recidivism is an integral factor in a court’s determina tion of

whether an offender’s criminal history category . . . is appropriate.”).6

In determining the degree o f t he likelihood of recidivism, the Parole Commission heard

te st imony from Dr. Karen Gold, Buitron’s expert, who stated that Buitron presents “a very low

likelihood of reoffending if he maintains sobriety.” Specifically, Dr. Gold stated that “there is a ten

percent likelihood that Buitron would reoffend.” The hearing examiner rejected Dr. Gold’s conclusion

as follows:

I disagre e with the psychologist’s overall evaluation of this case as posing a low

likelihood of re-offending. I disagree with this evaluation because the exception which

she allows for (the subject maint aining sobriety) is too great an assumption in this case

and with the subject’s prior history. In fact, my personal experience in this area would

suggest to me that it is more likely than not that an alcoholic addict of many years will

revert to the use of alcohol when next released (as he did after the first murder) and

therefore pose a very high risk to the community.

As the hearing examiner explained:

[I have] over a quarte r century of experience working with alcohol dependence

individuals. It has been my experience, almost without exception, these individuals are

excellent inmates and very compliant while incarcerated. H owever, once released,

most revert to the use of alcohol and alcohol addiction, and com m it new violent

criminal acts while under the influence of alcohol.

. . . My finding and recommendation on this matter, based on my experience in this

area, is as follows: The subject has had a life long addiction to alcohol which has only

stopped due to his incarceration for the murder which he is currently serving. While

incarcerated, he as well as many other alcoholics, display a high degree of motivation,

remorse, and self awareness. However, when released, there is a high probability that

he will return to his prior alcoholic addictive behavior. When he does, he will be an

extreme danger to the community as is evidenced by his prior alcoholic addictive

behavior. When he does, he will be an extreme dan ger t o the community as is

evidenced by his prior conduct which involved two separate murders, both fueled by

his alcohol addiction.

We reject Buitron’s assertion that the hearing officer relied solely on his subjective beliefs

regarding alcohol abusers in deciding whether to upwardly depart from the Guidelines. Although the

hearing examiner seemingly stressed his views regarding the likelihood that a person who suffers from7

alcohol abuse will return to abusing alcohol when released from prison, they were made in response

to Dr. Gold’s unpersuasive psychological assessment that Buitron had a low likelihood of reoffending.

As the reviewing Parole Commission attorney pointed out, Dr. Gold’s assessment was based upon

a sample of only ten persons. Mo reover, t he hearing examiner correctly pointed out that Buitron

demonstrated a high likelihood that he would commit future serious crimes based on the similarit y

and recency of Buitron’s current and prior homicide convictions.

In United States v. De Luna-Trujillo

, this Court held that “prior similar adult criminal conduct

may indicate the seriousness of the past crimes and the likelihood of future crimes.

. . .The recidivist’s

relapse into the same cri minal behavior demonstrates his lack of recognition of the gravity of his

original wrong, entails grea t er culpability for the offense with which he is currently charged, and

suggests an increased likelihood that the offense will be repeated yet again.” 868 F.2d 122, 125 (5th

Cir. 1989). We find D e Luna-Trujillo instructive and find that the similarit y of Buitron’s current and

prior homicide offenses - both of which involved alcohol, solicitation for sex, and strangulation - to

be reflective of his likelihood to reoffend. Moreover, the fact that the instant homicide was committed

just nine months after his release from prison for the first homicide supports this conclusion. As the

Parole Commission stated, “the nature of Buitron’s prior criminal act

- a homicide committed under

similar circumstances as the instant offense

- is clearly the type of offense that the Sentencing Parole

Commission conte mplat ed would be a basis for a departure above the highest criminal history

category for the applicable offense level.”

CONCLUSION

A fter carefully reviewing the briefs and record in this case, we find that the Parole

Commission did not abuse its discretion in departing upward from the Sentencing Guidelines. Thus,8

for the foregoing reasons, we AFFIRM the decision of the Parole Commission.

AFFIRM.