United States Court of Appeals,

Eleventh Circuit.

No. 95-5025

Non-Argument Calendar.

Michael W. TRAMEL, James Caudill, Petitioners,

v.

UNITED STATES PAROLE COMMISSION, Respondent.

Nov. 27, 1996.

Petition for Review of an Order of the United States Parole

Commission.

Before EDMONDSON, COX and CARNES, Circuit Judges.

PER CURIAM:

Petitioners Michael Tramel and James Caudill appeal sentencing

determinations issued by the United States Parole Commission

pursuant to hearings held at the Metropolitan Correctional Center

in Miami, Florida, where the petitioners are held.

Petitioners are citizens of the United States. Following

their arrest near Cat Cay, Bimini, on a boat carrying bales of

marijuana, they were convicted in the Commonwealth of the Bahamas

of possession of a dangerous drug with intent to supply. Each was

sentenced to four years imprisonment. Pursuant to the Convention

on the Transfer of Sentenced Persons, Council of Europe, they

subsequently were transferred to the United States to serve their

foreign sentences. Under 18 U.S.C. § 4106A(b)(1)(A), the United

States Parole Commission ("Commission") had jurisdiction to

determine a release date and a period of supervised release for

each prisoner. Specifically, the Commission, as required under

subsection (b)(1)(A), considered each prisoner as though he was
"convicted in a United States district court of a similar offense."

18 U.S.C. § 4106A(b)(1)(A). In July 1995, the Commission

determined that each petitioner should serve the full term of his

48-month foreign sentence and a six-month term of supervised

release.

The Commission examiner found that Tramel's base offense level

was 30. The examiner entered a two-level increase under U.S.S.G.

§ 2D1.1(b)(1) because Tramel's offense involved a firearm, and a

three-level decrease under U.S.S.G. § 3E1.1(b) because he accepted

responsibility. This placed Tramel's total offense level at 29.

Because Tramel had a Criminal History Category of I, his sentencing

guideline range was 87-108 months.

The examiner also found that Caudill's base offense level was

30. The examiner entered a three-level decrease under U.S.S.G. §

3E1.1(b) for acceptance of responsibility, placing Caudill's total

offense level at 27. With a Criminal History Category of II,

Caudill's sentencing guideline range was 78-97 months.

The examiner determined that both petitioners had endured

extremely harsh prison conditions in the Bahamas, and beatings by

guards that amounted to torture. Consequently, the examiner

concluded that a downward departure from the applicable guideline

range was appropriate. But the examiner rejected petitioners'

arguments that, in each case, the foreign sentence of 48 months

should be considered the guideline sentence from which the downward

departure was to be calculated. Concluding that the foreign

sentences themselves were more than sufficient departure for the

torture claims, the examiner declined to fix release dates prior to
expiration of the full terms of those sentences.

Contentions of the Parties

Petitioners argue that the hearing examiner and the Commission

erred in using the "preliminary" guideline sentence as the baseline

from which a downward departure was to be calculated. Because 48

months was the maximum sentence authorized by statute, petitioners

argue, 48 months became the guideline sentence under § 5G1.1(a).

In addition, petitioners contend that the hearing examiner and the

Commission should not have relied upon parole guidelines or

"policies" to determine the application of a departure.

The Commission responds by arguing that it committed no error

in using the applicable sentencing guideline range as the basis for

determining whether petitioners' Bahamian prison experience

warranted a downward departure great enough to justify a release

date earlier than 48 months. The Commission also contends that the

record in the case does not support petitioners' assertion that the

hearing examiner resorted to parole or other impermissible agency

guidelines in arriving at his recommended decisions.

Discussion

 The question of whether the Parole Commission committed an

error of law by using the applicable sentencing guideline range as

the baseline for a downward departure is a question of law to be

reviewed de novo. Molano-Garza v. United States Parole Commission,

965 F.2d 20, 23 (5th Cir.1992), cert. denied, 506 U.S. 1065, 113

S.Ct. 1009, 122 L.Ed.2d 158 (1993).

 When the applicable sentencing guideline range exceeds the

full term of the sentence imposed by a foreign court, a transfer
 1

Section 5G1.1(a) states: "Where the statutorily authorized

maximum sentence is less than the minimum of the applicable

guideline range, the statutorily authorized maximum sentence

shall be the guideline sentence." The commentary to § 5G1.1(a)

clarifies this statement: "For example, if the applicable

guideline range is 51-63 months and the maximum sentence

authorized by statute for the offense of conviction is 48 months,

the sentence required by the guidelines under subsection (a) is

48 months; a sentence of less than 48 months would be a

guideline departure." 

treaty prisoner's foreign sentence should be treated by the Parole

Commission as analogous to a § 5G1.1(a) "guideline sentence."1 See

Thorpe v. United States Parole Commission, 902 F.2d 291 (5th

Cir.1990). In such cases, the Commission may determine that the

appropriate release date under 18 U.S.C. § 4106A is upon expiration

of the full term of the foreign sentence. Thorpe upheld the

Commission's refusal to establish a release date prior to

expiration of the full term of the foreign sentence, despite "the

abuse [Mr. Thorpe] suffered at the hands of the foreign officials."

902 F.2d at 292. The Commission relied on the fact that the

Mexican court imposed an 84-month sentence and, "if Thorpe had been

convicted in a United States court, he would be subject to an

imprisonment range under the Guidelines of 151 to 188 months." Id.

We find the reasoning of Thorpe to be convincing and we affirm the

U.S. Parole Commission's sentencing determinations in this case.

When the Commission makes transfer treaty decisions, it is

required by § 4106A(b)(1)(B)(I) to consider any recommendation of

the U.S. Probation Office, including any recommendation about the

applicable guideline range. The Commission must also consider,

pursuant to U.S.S.G. § 5K2.0 and 18 U.S.C. § 3553(b), whether a

ground exists for a downward departure "outside the range
 2

Section 5K2.0, "Grounds for Departure (Policy Statement),"

states, in part: "Under 18 U.S.C. § 3553(b) the sentencing court

may impose a sentence outside the range established by the

applicable guideline, if the court finds "that there exists an

aggravating or mitigating circumstance of a kind, or to a degree,

not adequately taken into consideration by the Sentencing

Commission in formulating the guidelines that should result in a

sentence different from that described.' " 

established by the applicable guideline."2 A commonly asserted

ground for departure in the case of transfer treaty prisoners is

that the prisoner suffered physical abuse and/or torture while

incarcerated in a foreign prison. The Commission agrees that such

abuse or torture can be an appropriate basis for a downward

departure.

 In cases where the foreign sentence is below the applicable

guideline range, the Commission has ordered a downward departure

substantial enough to justify a release date prior to expiration of

the full term of the foreign sentence. See Trevino-Casares v. U.S.

Parole Commission, 992 F.2d 1068 (10th Cir.1993) (ordering a

release date at 71 months on a 108-month Mexican sentence after

determining that the appropriate guideline range was 121-151

months). However, the Commission is not required to disregard the

applicable guideline range when determining whether a downward

departure should be ordered. In Trevino-Casares, the Commission

decided that a departure was appropriate because the prisoner

suffered "serious and severe physical abuse while in foreign

custody resulting in permanent physical damage." 992 F.2d at 1071.

In Thorpe, by contrast, the Commission concluded that an earlier

release date was not appropriate. The Commission's decisions in

the present cases fall into the same category as those in Thorpe.
Although the examiner found that Tramel and Caudill were

mistreated, their incarceration in the Bahamas was relatively brief

and their circumstances were not as severe as those described in

Trevino-Casares. In the end, a foreign sentence does not under §

5G1.1(a) displace the applicable guideline range; it is the

sentence required by the guidelines, but not a substitute for the

guideline range itself. See Commentary to § 5G1.1(a); United

States v. Lattimore, 974 F.2d 971, 973 (8th Cir.1992) (rejecting

the contention that an otherwise applicable guideline range of 78-

97 months becomes a guideline range of 60-97 months when the

mandatory minimum for conviction of the offense is 60 months).

The record plainly indicates that the hearing examiner

understood his authority to depart downward from the full term of

petitioners' foreign sentences, but decided against such a

departure after giving due regard to the applicable guideline range

as the measure of the seriousness of petitioners' crimes. A

decision not to depart downward is not reviewable on appeal. 18

U.S.C. § 3742(a).

 Finally, we reject petitioners' contention that the examiner

improperly relied on parole guidelines. The records in

petitioners' cases show that the examiner received guidance from

the Commission as to the appropriate base point from which to

subtract any downward departure the examiner found warranted. This

guidance had been given to the examiner prior to the hearings, and

included an unpublished decision of the Fifth Circuit Court of

Appeals, Roeder v. U.S. Parole Commission, 5 F.3d 529, No. 93-4114

(1993). Nothing in the record indicates that the examiner
considered other guidelines to determine the appropriate departure.

The examiner explained that his finding was based upon "many of our

other awards that [we] have been giving over the years." (Tramel,

R.1-K at 68-69.) The examiner cannot be faulted for being aware of

the Commission's past practice in similar transfer treaty cases,

and for considering that practice as unwritten guidance in his

effort to achieve an equitable result. There is no reference in

the record to the use or role of any "parole guidelines."

AFFIRMED.