[Title 28 CFR 2]
[Code of Federal Regulations (annual edition) - July 1, 2002 Edition]
[Title 28 - JUDICIAL ADMINISTRATION]
[Chapter I - DEPARTMENT OF JUSTICE]
[Part 2 - PAROLE, RELEASE, SUPERVISION AND RECOMMITMENT OF PRISONERS, YOUTH OFFENDERS, AND JUVENILE DELINQUENTS]
[From the U.S. Government Printing Office]
28JUDICIAL ADMINISTRATION12002-07-012002-07-01falsePAROLE, RELEASE, SUPERVISION AND RECOMMITMENT OF PRISONERS, YOUTH OFFENDERS, AND JUVENILE DELINQUENTS2PART 2JUDICIAL ADMINISTRATIONDEPARTMENT OF JUSTICE
PART 2--PAROLE, RELEASE, SUPERVISION AND RECOMMITMENT OF PRISONERS, YOUTH OFFENDERS, AND JUVENILE DELINQUENTS--Table of Contents
Subpart A--United States Code Prisoners and Parolees
Sec.
2.1 Definitions.
2.2 Eligibility for parole; adult sentences.
2.3 Same: Narcotic Addict Rehabilitation Act.
2.4 Same: Youth offenders and juvenile delinquents.
2.5 Sentence aggregation.
2.6 Withheld and forfeited good time.
2.7 Committed fines and restitution orders.
2.8 Mental competency proceedings.
2.9 Study prior to sentencing.
2.10 Date service of sentence commences.
2.11 Application for parole; notice of hearing.
2.12 Initial hearings: Setting presumptive release dates.
2.13 Initial hearing; procedure.
2.14 Subsequent proceedings.
2.15 Petition for consideration of parole prior to date set at hearing.
2.16 Parole of prisoner in state, local, or territorial institution.
2.17 Original jurisdiction cases.
2.18 Granting of parole.
2.19 Information considered.
2.20 Paroling policy guidelines: Statement of general policy.
2.21 Reparole consideration guidelines.
2.22 Communication with the Commission.
2.23 Delegation to hearing examiners.
2.24 Review of panel recommendation by the Regional Commissioner.
2.25 [Reserved]
2.26 Appeal to National Appeals Board.
2.27 Petition for reconsideration of original jurisdiction decisions.
2.28 Reopening of cases.
2.29 Release on parole.
2.30 False information or new criminal conduct: Discovery after
release.
2.31 Parole to detainers: Statement of policy.
2.32 Parole to local or immigration detainers.
2.33 Release plans.
2.34 Rescission of parole.
2.35 Mandatory release in the absence of parole.
2.36 Rescission guidelines.
2.37 Disclosure of information concerning parolees; Statement of
policy.
2.38 Community supervision by U.S. Probation Officers.
2.39 Jurisdiction of the Commission.
2.40 Conditions of release.
2.41 Travel approval.
2.42 Probation officer's reports to Commission.
2.43 Early termination.
2.44 Summons to appear or warrant for retaking of parolee.
2.45 Same; youth offenders.
2.46 Execution of warrant and service of summons.
2.47 Warrant placed as a detainer and dispositional review.
2.48 Revocation: Preliminary interview.
2.49 Place of revocation hearing.
2.50 Revocation hearing procedure.
2.51 Issuance of a subpoena for the appearance of witnesses or
production of documents.
2.52 Revocation decisions.
2.53 Mandatory parole.
2.54 Reviews pursuant to 18 U.S.C. 4215(c).
2.55 Disclosure of file prior to parole hearing.
2.56 Disclosure of Parole Commission file.
2.57 Special parole terms.
2.58 Prior orders.
2.59 Designation of a Commissioner to act as a hearing examiner.
2.60 Superior program achievement.
2.61 Qualifications of representatives.
2.62 Rewarding assistance in the prosecution of other offenders;
criteria and guidelines.
2.63 Quorum.
2.64 Youth Corrections Act.
2.65 Paroling policy for prisoners serving aggregate U.S. and D.C. Code
sentences.
2.66 Expedited Revocation Procedure.
Subpart B--Transfer Treaty Prisoners and Parolees
2.68 Prisoners transferred pursuant to treaty.
2.69 [Reserved]
Subpart C--District of Columbia Code: Prisoners and Parolees
2.70 Authority and functions of the U.S. Parole Commission with respect
to District of Columbia Code offenders.
2.71 Application for parole.
2.72 Hearing procedure.
2.73 Parole suitability criteria.
2.74 Decision of the Commission.
2.75 Reconsideration proceedings.
2.76 Reduction in minimum sentence.
2.77 Medical parole.
2.78 Geriatric parole.
2.79 Good time forfeiture.
2.80 Guidelines for D.C. Code offenders.
[[Page 101]]
2.81 Reparole decisions.
2.82 Effective date of parole.
2.83 Release planning.
2.84 Release to other jurisdictions.
2.85 Conditions of release.
2.86 Release on parole; rescission for misconduct.
2.87 Mandatory release.
2.88 Confidentiality of parole records.
2.89 Miscellaneous provisions.
2.90 Prior orders of the Board of Parole.
2.91 Supervision responsibility.
2.92 Jurisdiction of the Commission.
2.93 Travel approval.
2.94 Supervision reports to Commission.
2.95 Release from active supervision.
2.96 Order of release.
2.97 Withdrawal of order of release.
2.98 Summons to appear or warrant for retaking of parolee.
2.99 Execution of warrant and service of summons.
2.100 Warrant placed as detainer and dispositional review.
2.101 Probable cause hearing and determination.
2.102 Place of revocation hearing.
2.103 Revocation hearing procedure.
2.104 Issuance of subpoena for appearance of witnesses or production of
documents.
2.105 Revocation decisions.
2.106 Youth Rehabilitation Act.
2.107 Interstate Compact.
Subpart D--District of Columbia Code Supervised Releasees
2.200 Authority, jurisdiction, and functions of the U.S. Parole
Commission with respect to offenders serving terms of
supervised release imposed by the Superior Court of the
District of Columbia.
2.201 Period of supervised release.
2.202 Prerelease procedures.
2.203 Certificate of supervised release.
2.204 Conditions of supervised release.
2.205 Confidentiality of supervised release records.
2.206 Travel approval and transfers of supervision.
2.207 Supervision reports to Commission.
2.208 Termination of a term of supervised release.
2.209 Order of termination.
2.210 Extension of term.
2.211 Summons to appear or warrant for retaking releasee.
2.212 Execution of warrant and service of summons.
2.213 Warrant placed as detainer and dispositional review.
2.214 Revocation; preliminary interview.
2.215 Place of revocation hearing.
2.216 Revocation hearing procedure.
2.217 Issuance of subpoena for appearance of witnesses or production of
documents.
2.218 Revocation decisions.
2.219 Maximum terms of imprisonment and supervised release.
Authority: 18 U.S.C. 4203(a)(1) and 4204(a)(6).
Source: 42 FR 39809, Aug. 5, 1977, unless otherwise noted.
Subpart A--United States Code Prisoners and Parolees
Sec. 2.1 Definitions.
As used in this part:
(a) The term Commission refers to the U.S. Parole Commission.
(b) The term Commissioner refers to members of the U.S. Parole
Commission.
(c) The term National Appeals Board refers to the three-member
Commission sitting as a body to decide appeals taken from decisions of a
Regional Commissioner, who participates as a member of the National
Appeals Board. The Vice Chairman shall be Chairman of the National
Appeals Board.
(d) The term National Commissioners refers to the Chairman of the
Commission and to the Commissioner who is not serving as the Regional
Commissioner in respect to a particular case.
(e) The term Regional Commissioner refers to Commissioners who are
assigned to make initial decisions, pursuant to the authority delegated
by these rules, in respect to prisoners and parolees in regions defined
by the Commission.
(f) The term eligible prisoner refers to any Federal prisoner
eligible for parole pursuant to this part and includes any Federal
prisoner whose parole has been revoked and who is not otherwise
ineligibile for parole.
(g) The term parolee refers to any Federal prisoner released on
parole or as if on parole pursuant to 18 U.S.C. 4164 or 4205(f). The
term mandatory release refers to release pursuant to 18 U.S.C. 4163 and
4164.
(h) The term effective date of parole refers to a parole date that
has been approved following an in-person hearing held within nine months
of such date, or following a pre-release record review.
(i) All other terms used in this part shall be deemed to have the
same meaning as identical or comparable terms as used in chapter 311 of
part IV
[[Page 102]]
of title 18 of the U.S. Code or 28 CFR chapter I, part 0, subpart V.
[42 FR 39809, Aug. 5, 1977, as amended at 43 FR 22707, May 26, 1978;
Order No. 960-81, 46 FR 52354, Oct. 27, 1981; 60 FR 51350, Oct. 2, 1995;
61 FR 55743, Oct. 29, 1996]
Sec. 2.2 Eligibility for parole; adult sentences.
(a) A Federal prisoner serving a maximum term or terms of more than
one year imposed pursuant to 18 U.S.C. 4205 (a) (or pursuant to former
18 U.S.C. 4202) may be released on parole in the discretion of the
Commission after completion of one-third of such term or terms, or after
completion of ten years of a life sentence or of a sentence of over
thirty years.
(b) A Federal prisoner serving a maximum term or terms of more than
one year imposed pursuant to 18 U.S.C. 4205(b)(1) (or pursuant to former
18 U.S.C. 4208(a)(1)) may be released on parole in the discretion of the
Commission after completion of the court-designated minimum term, which
may be less than but not more than one-third of the maximum sentence
imposed.
(c) A Federal prisoner serving a maximum term or terms of more than
one year imposed pursuant to 18 U.S.C. 4205(b)(2) (or pursuant to former
18 U.S.C. 4208(a)(2)) may be released on parole at any time in the
discretion of the Commission.
(d) If the Court has imposed a maximum term or terms of more than
one year pursuant to 18 U.S.C. 924(a) or 26 U.S.C. 5871 [violation of
Federal gun control laws], a Federal prisoner serving such term or terms
may be released in the discretion of the Commission as if sentenced
pursuant to 18 U.S.C. 4205(b)(2). However, if the prisoner's offense was
committed on or after October 12, 1984, and the Court imposes a term or
terms under 26 U.S.C. 5871, the prisoner is eligible for parole only
after service of one-third of such term or terms, pursuant to 18 U.S.C.
4205(a).
(e) A Federal prisoner serving a maximum term or terms of one year
or less is not eligible for parole consideration by the Commission.
[42 FR 41408, Aug. 17, 1977, as amended at 50 FR 36423, Sept. 6, 1985;
53 FR 46870, Nov. 21, 1988]
Sec. 2.3 Same: Narcotic Addict Rehabilitation Act.
A Federal prisoner committed under the Narcotic Addict
Rehabilitation Act may be released on parole in the discretion of the
Commission after completion of at least six months in treatment, not
including any period of time for ``study'' prior to final judgment of
the court. Before parole is ordered by the Commission, the Surgeon
General or his designated representative must certify that the prisoner
has made sufficent progress to warrant his release and the Attorney
General or his designated representative must also report to the
Commission whether the prisoner should be released. Recertification by
the Surgeon General prior to reparole consideration is not required (18
U.S.C. 4254).
[48 FR 22918, May 23, 1983]
Sec. 2.4 Same: Youth offenders and juvenile delinquents.
Committed youth offenders and juvenile delinquents may be released
on parole at any time in the discretion of the Commission.
(18 U.S.C. 5017(a) and 5041)
[45 FR 44925, July 2, 1980]
Sec. 2.5 Sentence aggregation.
When multiple sentences are aggregated by the Bureau of Prisons
pursuant to 18 U.S.C. 4161 and 4205, such sentences are treated as a
single aggregate sentence for the purpose of every action taken by the
Commission pursuant to these rules, and the prisoner has a single parole
eligibility date as determined by the Bureau of Prisons.
[45 FR 44925, July 2, 1980]
Sec. 2.6 Withheld and forfeited good time.
While neither a forfeiture of good time nor a withholding of good
time shall bar a prisoner from receiving a parole hearing, section 4206
of title 18 of the U.S. Code permits the Commission to parole only those
prisoners who have substantially observed the rules of the institution.
[43 FR 38822, Aug. 31, 1978]
[[Page 103]]
Sec. 2.7 Committed fines and restitution orders.
(a) Committed fines. In any case in which a prisoner shall have had
a fine imposed upon him by the committing court for which he is to stand
committed until it is paid or until he is otherwise discharged according
to law, such prisoner shall not be released on parole or mandatory
release until payment of the fine, or until the fine commitment order is
discharged according to law under the regulations of the Bureau of
Prisons. Discharge from the commitment obligation of any committed fine
does not discharge the prisoner's obligation to pay the fine as a debt
due the United States.
(b) Restitution orders. Where a prisoner applying for parole is
under an order of restitution, and it appears that the prisoner has the
ability to pay and has willfully failed to do so, the Commission shall
require that approval of a parole release plan be contingent upon the
prisoner first satisfying such restitution order. The prisoner shall be
notified that failure to satisfy this condition shall result in
retardation of parole under the provisions of Sec. 2.28(e).
[48 FR 44527, Sept. 29, 1983, as amended at 50 FR 36422, Sept. 6, 1985]
Sec. 2.8 Mental competency proceedings.
(a) Whenever a prisoner (or parolee) is scheduled for a hearing in
accordance with the provisions of this part and reasonable doubt exists
as to his mental competency, i.e., his ability to understand the nature
of and participate in scheduled proceedings, a preliminary inquiry to
determine his mental competency shall be conducted by the hearing panel,
hearing examiner or other official (including a U.S. Probation Officer)
designated by the Regional Commissioner.
(b) The hearing examiner(s) or designated official shall receive
oral or written psychiatric or psychological testimony and other
evidence that may be available. A preliminary determination of mental
competency shall be made upon the testimony, evidence, and personal
observation of the prisoner (or parolee). If the examiner(s) or
designated official determines that the prisoner is mentally competent,
the previously scheduled hearing shall be held. If they determine that
the prisoner is not mentally competent, the previously scheduled hearing
shall be temporarily postponed.
(c) Whenever the hearing examiner(s) or designated official
determine that a prisoner is incompetent and postpone the previously
scheduled hearing, they shall forward the record of the preliminary
hearing with their findings to the Regional Commissioner for review. If
the Regional Commissioner concurs with their findings, he shall order
the temporarily postponed hearing to be postponed indefinitely until
such time as it is determined that the prisoner has recovered
sufficiently to understand the nature of and participate in the
proceedings, and in the case of a parolee may order such parolee
transferred to a Bureau of Prisons facility for further examination. In
any such case, the Regional Commissioner shall require a progress report
on the mental health of the prisoner at least every 6 months. When the
Regional Commissioner determines that the prisoner has recovered
sufficiently, he shall reschedule the hearing for the earliest feasible
date.
(d) If the Regional Commissioner disagrees with the findings of the
hearing examiner(s) or designated official as to the mental competency
of the prisoner, he shall take such action as he deems appropriate.
[44 FR 3408, Jan. 16, 1979]
Sec. 2.9 Study prior to sentencing.
When an adult Federal offender has been committed to an institution
by the sentencing court for observation and study prior to sentencing,
under the provisions of 18 U.S.C. 4205(c), the report to the sentencing
court is prepared and submitted directly by the U.S. Federal Prison
System.
[50 FR 36423, Sept. 6, 1985]
Sec. 2.10 Date service of sentence commences.
(a) Service of a sentence of imprisonment commences to run on the
date on which the person is received at the penitentiary, reformatory,
or jail for service of the sentence: Provided, however, That any such
person shall be allowed
[[Page 104]]
credit toward the service of his sentence for any days spent in custody
in connection with the offense or acts for which sentence was imposed.
(b) The imposition of a sentence of imprisonment for civil contempt
shall interrupt the running of any sentence of imprisonment being served
at the time the sentence of civil contempt is imposed, and the sentence
or sentences so interrupted shall not commence to run again until the
sentence of civil contempt is lifted.
(c) Service of the sentence of a committed youth offender or person
committed under the Narcotic Addict Rehabilitation Act commences to run
from the date of conviction and is interrupted only when such prisoner
or parolee:
(1) Is on court-ordered bail;
(2) Is in escape status;
(3) Has absconded from parole supervision; or
(4) Comes within the provisions of paragraph (b) of this section.
[42 FR 39809, Aug. 5, 1977, as amended at 47 FR 36634, Aug. 23, 1982]
Sec. 2.11 Application for parole; notice of hearing.
(a) A federal prisoner (including a committed youth offender or
prisoner sentenced under the Narcotic Addict Rehabilitation Act)
desiring to apply for parole shall execute an application form as
prescribed by the Commission. Such forms shall be available at each
federal institution and shall be provided to each prisoner who is
eligible for an initial parole hearing pursuant to Sec. 2.12. Prisoners
committed under the Federal Juvenile Delinquency Act shall be considered
for parole without application and may not waive parole consideration. A
prisoner who receives an initial hearing need not apply for subsequent
hearings.
(b) A prisoner may knowingly and intelligently waive any parole
consideration on a form provided for that purpose. If a prisoner waives
parole consideration, he may later apply for parole and may be heard
during the next visit of the Commission to the institution at which he
is confined, provided that he has applied at least 60 days prior to the
first day of the month in which such visit of the Commission occurs.
(c) A prisoner who declines either to apply for or waive parole
consideration is deemed to have waived parole consideration.
(d) In addition to the above procedures relating to parole
application, all prisoners prior to initial hearing shall be provided
with an inmate background statement by the Bureau of Prisons for
completion by the prisoner.
(e) At least sixty days prior to the initial hearing (and prior to
any hearing conducted pursuant to Sec. 2.14), the prisoner shall be
provided with written notice of the time and place of the hearing and of
his right to review the documents to be considered by the Commission, as
provided by Sec. 2.55. A prisoner may waive such notice, except that if
such notice is not waived, the case shall be continued to the time of
the next regularly scheduled proceeding of the Commission at the
institution in which the prisoner is confined.
[42 FR 39809, Aug. 5, 1977, as amended at 45 FR 6381, Jan. 28, 1980; 47
FR 21041, May 17, 1982; 49 FR 7228, Feb. 28, 1984]
Sec. 2.12 Initial hearings: Setting presumptive release dates.
(a) An initial hearing shall be conducted within 120 days of a
prisoner's arrival at a federal institution or as soon thereafter as
practicable; except that in a case of a prisoner with a minimum term of
parole ineligibility of ten years or more, the initial hearing will be
conducted nine months prior to the completion of such a minimum term, or
as soon thereafter as practicable.
(b) Following initial hearing, the Commission shall (1) set a
presumptive release date (either by parole or by mandatory release)
within fifteen years of the hearing; (2) set an effective date of
parole; or (3) continue the prisoner to a fifteen year reconsideration
hearing pursuant to Sec. 2.14(c).
(c) Notwithstanding the above paragraph, a prisoner may not be
paroled earlier than the completion of any judicially set minimum term
of imprisonment or other period of parole ineligibility fixed by law.
[[Page 105]]
(d) A presumptive parole date shall be contingent upon an
affirmative finding by the Commission that the prisoner has a continued
record of good conduct and a suitable release plan and shall be subject
to the provisions of Secs. 2.14 and 2.28. In the case of a prisoner
sentenced under the Narcotic Addict Rehabilitation Act, 18 U.S.C. 4254,
a presumptive parole date shall also be contingent upon certification by
the Surgeon General pursuant to Sec. 2.3 of these rules. Consideration
of disciplinary infractions in cases with presumptive parole dates may
be deferred until the commencement of the next in-person hearing or the
prerelease record review required by Sec. 2.14(b). While prisoners are
encouraged to earn the restoration of forfeited or withheld good time,
the Commission will consider the prisoner's overall institutional record
in determining whether the conditions of a presumptive parole date have
been satisfied.
[42 FR 39809, Aug. 5, 1977, as amended at 44 FR 3405, 3407, Jan. 16,
1979; 48 FR 22919, May 23, 1983; 49 FR 34208, Aug. 29, 1984; 57 FR
41391, Sept. 10, 1992; 60 FR 51350, Oct. 2, 1995]
Sec. 2.13 Initial hearing; procedure.
(a) An initial hearing shall be conducted by a single hearing
examiner unless the Regional Commissioner orders that the hearing be
conducted by a panel of two examiners. The examiner shall discuss with
the prisoner his offense severity rating and salient factor score as
described in Sec. 2.20, his institutional conduct and, in addition, any
other matter the examiner may deem relevant.
(b) A prisoner may be represented at a hearing by a person of his or
her choice. The function of the prisoner's representative shall be to
offer a statement at the conclusion of the interview of the prisoner by
the examiner, and to provide such additional information as the examiner
shall request. Interested parties who oppose parole may select a
representative to appear and offer a statement. The hearing examiner
shall limit or exclude any irrelevant or repetitious statement.
(c) At the conclusion of the hearing, the examiner shall discuss the
decision to be recommended by the examiner, and the reasons therefor,
except in the extraordinary circumstance of a complex issue that
requires further deliberation before a recommendation can be made.
(d) In accordance with 18 U.S.C. 4206, the reasons for establishment
of a release date shall include a guidelines evaluation statement
containing the prisoner's offense severity rating and salient factor
score (including the points credited on each item of such score) as
described in Sec. 2.20, as well as the specific factors and information
relied upon for any decision outside the range indicated by the
guidelines.
(e) No interviews with the Commission, or any representative
thereof, shall be granted to a prisoner unless his name is docketed for
a hearing in accordance with Commission procedures. Hearings shall not
be open to the public.
(f) A full and complete record of every hearing shall be retained by
the Commission. Upon a request, pursuant to Sec. 2.56, the Commission
shall make available to any eligible prisoner such record as the
Commission has retained of the hearing.
[42 FR 39809, Aug. 5, 1977, as amended at 45 FR 6381, Jan. 28, 1980; 47
FR 25736, June 15, 1982; 48 FR 23183, May 24, 1983; 59 FR 45625, Sept.
2, 1994]
Sec. 2.14 Subsequent proceedings.
(a) Interim proceedings. The purpose of an interim hearing required
by 18 U.S.C. 4208(h) shall be to consider any significant developments
or changes in the prisoner's status that may have occurred subsequent to
the initial hearing.
(1) Notwithstanding a previously ordered presumptive release date or
fifteen year reconsideration hearing, interim hearings shall be
conducted by an examiner panel pursuant to the procedures of
Sec. 2.13(b), (c), (e), and (f) at the following intervals from the date
of the last hearing:
(i) In the case of a prisoner with a maximum term or terms of less
than seven years, every eighteen months (until released);
(ii) In the case of a prisoner with a maximum term or terms of seven
years or more, every twenty-four months (until released); Provided That,
in the case of a prisoner whose presumptive
[[Page 106]]
parole date exceeds the minimum term by no more than nine months, and
where at least twenty-four months has elapsed since the initial hearing,
such prisoner shall be entitled to an interim hearing nine months
preceding the month of parole eligibility.
(iii) In the case of a prisoner with an unsatisfied minimum term,
other than described under paragraph (a)(1)(ii) of this section, the
first interim hearing shall be deferred until the docket of hearings
immediately preceding the month of parole eligibility.
(2) Following an interim hearing, the Commission may:
(i) Order no change in the previous decision;
(ii) Advance a presumptive release date, or the date of a fifteen
year reconsideration hearing. However, it shall be the policy of the
Commission that once set, a presumptive release date or the date of a
fifteen year reconsideration hearing shall be advanced only:
(1) For superior program achievement under the provisions of
Sec. 2.60; or
(2) For other clearly exceptional circumstances.
(iii) Retard or rescind a presumptive parole date for reason of
disciplinary infractions. In a case in which disciplinary infractions
have occurred, the interim hearing shall be conducted in accordance with
the procedures of Sec. 2.34(c) through (f). (Prior to each interim
hearing, prisoners shall be notified on the progress report furnished by
the Federal Prison System that any finding of misconduct by an
Institutional Disciplinary Committee since the previous hearing will be
considered for possible action under this paragraph);
(iv) If a presumptive date falls within nine months after the date
of an interim hearing, the Commission may treat the interim hearing as a
prerelease review in lieu of the record review required by paragraph (b)
of this section.
(b) Pre-release reviews. The purpose of a pre-release review shall
be to determine whether the conditions of a presumptive release date by
parole have been satisfied.
(1) At least sixty days prior to a presumptive parole date, the case
shall be reviewed on the record, including a current institutional
progress report.
(2) Following review, the Regional Commissioner may:
(i) Approve the parole date;
(ii) Advance or retard the parole date for purpose of release
planning as provided by Sec. 2.28(e);
(iii) Retard the parole date or commence rescission proceedings as
provided by Sec. 2.34;
(iv) Advance the parole date for superior program achievement under
the provisions of Sec. 2.60.
(3) A pre-release review pursuant to this section shall not be
required if an in-person hearing has been held within nine months of the
parole date.
(4) Where:
(i) There has been no finding of misconduct by an Institutional
Disciplinary Committee nor any allegation of criminal conduct since the
last hearing; and
(ii) No other modification of the release date appears warranted,
the administrative hearing examiner may act for the Regional
Commissioner under paragraph (b)(2) of this section to approve
conversion of the presumptive parole date to an effective date of
parole.
(c) Fifteen year reconsideration hearings. A fifteen year
reconsideration hearing shall be a full reassessment of the case
pursuant to the procedures at Sec. 2.13.
(1) A fifteen year reconsideration hearing shall be ordered
following initial hearing in any case in which a release date is not
set.
(2) Following a fifteen year reconsideration hearing, the Commission
may take any one of the actions authorized by Sec. 2.12(b).
[46 FR 39136, July 31, 1981; 47 FR 25735, June 15, 1982, as amended at
48 FR 9247, Mar. 4, 1983; 48 FR 44525, Sept. 29, 1983; 49 FR 34208, Aug.
29, 1984; 55 FR 290, Jan. 4, 1990; 60 FR 51350, Oct. 2, 1995]
Sec. 2.15 Petition for consideration of parole prior to date set at hearing.
When a prisoner has served the minimum term of imprisonment required
by law, the Bureau of Prisons may petition the responsible Regional
Commissioner for reopening the case under Sec. 2.28(a) and consideration
for parole
[[Page 107]]
prior to the date set by the Commission at the initial or review
hearing. The petition must show cause why it should be granted, i.e., an
emergency, hardship, or the existence of other extraordinary
circumstances that would warrant consideration of early parole.
[42 FR 39809, Aug. 5, 1977, as amended at 44 FR 3407, Jan. 16, 1979]
Sec. 2.16 Parole of prisoner in state, local, or territorial institution.
(a) Any person who is serving a sentence of imprisonment for any
offense against the United States, but who is confined therefor in a
state reformatory or other state or territorial institution, shall be
eligible for parole by the Commission on the same terms and conditions,
by the same authority, and subject to recommittal for the violation of
such parole, as though he were confined in a Federal penitentiary,
reformatory, or other correctional institution.
(b) Federal prisoners serving concurrent state and Federal sentences
in state, local, or territorial institutions shall be furnished upon
request parole application forms. Upon receipt of the application and
any supplementary classification material submitted by the institution,
parole consideration shall be made by an examiner panel of the
appropriate region on the record only. If such prisoner is released from
his state sentence prior to a Federal grant of parole, he shall be given
a personal hearing as soon as feasible after receipt at a Federal
institution.
(c) Prisoners who are serving Federal sentences exclusively but who
are being boarded in State, local, or territorial institutions may be
provided hearings at such facilities or may be transferred by the Bureau
of Prisons to Federal Institutions for hearings by examiner panels of
the Commission.
(18 U.S.C. 4203, 4204)
[42 FR 39809, Aug. 5, 1977, as amended at 45 FR 44924, July 2, 1980; 50
FR 36424, Sept. 6, 1985]
Sec. 2.17 Original jurisdiction cases.
(a) Following any hearing conducted pursuant to these rules, a
Regional Commissioner may designate certain cases for decision by a
majority of the Commission, as original jurisdiction cases. In such
instances, he shall forward the case with his vote, and any additional
comments he may deem germane, to the National Commissioners for
decision. Decisions shall be based upon the concurrence of two votes,
with the Regional Commissioner and the National Commissioners each
having one vote.
(b) The following criteria will be used in designating cases as
original jurisdiction cases:
(1) Prisoners who have committed serious crimes against the security
of the Nation, e.g., espionage or aggravated subversive activity.
(2) Prisoners whose offense behavior:
(i) Involved an unusual degree of sophistication or planning, or
(ii) Was part of a large scale criminal conspiracy or a continuing
criminal enterprise.
(3) Prisoners who have received national or unusual attention
because of the nature of the crime, arrest, trial, or prisoner status,
or because of the community status of the offender or his victim.
(4) Long-term sentences. Prisoners sentenced to a maximum term of
forty-five years (or more) or prisoners serving life sentences.
(c)(1) Any case designated for the original jurisdiction of the
Commission shall remain an original jurisdiction case unless designation
is removed pursuant to this subsection.
(2) A case found to be inappropriately designated for the
Commission's original jurisdiction, or to no longer warrant such
designation, may be removed from original jurisdiction under the
procedures specified in paragraph (a) of this section following a
regularly scheduled hearing or the reopening of the case pursuant to
Sec. 2.28. Removal from original jurisdiction may also occur by majority
vote of the Commission considering a petition for reconsideration
pursuant to Sec. 2.27. Where the circumstances warrant, a case may be
redesignated as original jurisdiction pursuant to the provisions of
paragraphs (a) and (b) of this section.
[42 FR 39809, Aug. 5, 1977, as amended at 42 FR 44234, Sept. 2, 1977; 48
FR 53409, Nov. 28, 1983; 61 FR 13763, Mar. 28, 1996; 61 FR 55743, Oct.
29, 1996]
[[Page 108]]
Sec. 2.18 Granting of parole.
The granting of parole to an eligible prisoner rests in the
discretion of the U.S. Parole Commission. As prerequisites to a grant of
parole, the Commission must determine that the prisoner has
substantially observed the rules of the institution or institutions in
which he has been confined; and upon consideration of the nature and
circumstances of the offense and the history and characteristics of the
prisoner, must determine that release would not depreciate the
seriousness of his offense or promote disrespect for the law, and that
release would not jeopardize the public welfare (i.e., that there is a
reasonable probability that, if released, the prisoner would live and
remain at liberty without violating the law or the conditions of his
parole).
Sec. 2.19 Information considered.
(a) In making a parole or reparole determination the Commission
shall consider, if available and relevant:
(1) Reports and recommendations which the staff of the facility in
which such prisoner is confined may make;
(2) Official reports of the prisoner's prior criminal record,
including a report or record of earlier probation and parole
experiences;
(3) Pre-sentence investigation reports;
(4) Recommendations regarding the prisoner's parole made at the time
of sentencing by the sentencing judge and prosecuting attorney;
(5) Reports of physical, mental, or psychiatric examination of the
offender; and
(6) A statement, which may be presented orally or otherwise, by any
victim of the offense for which the prisoner is imprisoned about the
financial, social, psychological, and emotional harm done to, or loss
suffered by such victim.
(b)(1) There shall also be taken into consideration such additional
relevant information concerning the prisoner (including information
submitted by the prisoner) as may be reasonably available (18 U.S.C.
4207). The Commission encourages the submission of relevant information
concerning an eligible prisoner by interested persons.
(2) To permit adequate review of information concerning the
prisoner, materials submitted to the Commission should be received by
the Commission no later than the first day of the month preceding the
month of the scheduled hearing docket.
(3) If material of more than six (6), double-spaced, letter-sized
pages is first submitted at the time of the hearing (or preliminary
interview) and the hearing panel (or person conducting the hearing or
preliminary interview) concludes that it is not feasible to read all the
material at that time, the person submitting the material will be
permitted to summarize it briefly at the hearing (or preliminary
interview). All of the material submitted will become part of the record
to be considered by the Commission in its review of the proceedings.
(4) The Commission will normally consider only verbal and written
evidence at hearings. Recorded audio and visual material will be
reviewed at hearings only if there is no adequate substitute to permit a
finding under paragraph (c) of this section. Otherwise, recorded audio
and visual material should be submitted prior to the hearing for review
and summarization, pursuant to paragraph (b)(2) of this section.
(c) The Commission may take into account any substantial information
available to it in establishing the prisoner's offense severity rating,
salient factor score, and any aggravating or mitigating circumstances,
provided the prisoner is apprised of the information and afforded an
opportunity to respond. If the prisoner disputes the accuracy of the
information presented, the Commission shall resolve such dispute by the
preponderance of the evidence standard; that is, the Commission shall
rely upon such information only to the extent that it represents the
explanation of the facts that best accords with reason and probability.
If the Commission is given evidence of criminal behavior that has been
the subject of an acquittal in a federal, state, or local court, the
Commission may consider that evidence if:
(1) The Commission finds that it cannot adequately determine the
prisoner's suitability for release on parole,
[[Page 109]]
or to remain on parole, unless the evidence is taken into account;
(2) The Commission is satisfied that the record before it is
adequate notwithstanding the acquittal;
(3) The prisoner has been given the opportunity to respond to the
evidence before the Commission; and
(4) The evidence before the Commission meets the preponderance
standard.
In any other case, the Commission shall defer to the trial jury. Offense
behavior in Category 5 or above shall presumptively support a finding
under paragraph (c)(1) of this section.
(d) Recommendations and information from sentencing judges, defense
attorneys, prosecutors, and other interested parties are welcomed by the
Commission. In evaluating a recommendation concerning parole, the
Commission must consider the degree to which such recommendation
provides the Commission with specific facts and reasoning relevant to
the statutory criteria for parole (18 U.S.C. 4206) and the application
of the Commission's guidelines (including reasons for departure
therefrom). Thus, to be most helpful, a recommendation should state its
underlying factual basis and reasoning. However, no recommendation
(including a prosecutorial recommendation pursuant to a plea agreement)
may be considered as binding upon the Commission's discretionary
authority to grant or deny parole.
[42 FR 39809, Aug. 5, 1977, as amended at 44 FR 26550, May 4, 1979; 44
FR 27658, May 11, 1979; 44 FR 31638, June 1, 1979; 49 FR 34207, Aug. 29,
1984; 49 FR 44098, Nov. 2, 1984; 50 FR 36423, Sept. 6, 1985; 51 FR 7064,
Feb. 28, 1986; 56 FR 16270, Apr. 22, 1991; 56 FR 30868, July 8, 1991; 58
FR 16612, Mar. 30, 1993]
Sec. 2.20 Paroling policy guidelines: Statement of general policy.
(a) To establish a national paroling policy, promote a more
consistent exercise of discretion, and enable fairer and more equitable
decision-making without removing individual case consideration, the U.S.
Parole Commission has adopted guidelines for parole release
consideration.
(b) These guidelines indicate the customary range of time to be
served before release for various combinations of offense (severity) and
offender (parole prognosis) characteristics. The time ranges specified
by the guidelines are established specifically for cases with good
institutional adjustment and program progress.
(c) These time ranges are merely guidelines. Where the circumstances
warrant, decisions outside of the guidelines (either above or below) may
be rendered.
(d) The guidelines contain instructions for the rating of certain
offense behaviors. However, especially mitigating or aggravating
circumstances in a particular case may justify a decision or a severity
rating different from that listed.
(e) An evaluation sheet containing a ``salient factor score'' serves
as an aid in determining the parole prognosis (potential risk of parole
violation). However, where circumstances warrant, clinical evaluation of
risk may override this predictive aid.
(f) Guidelines for reparole consideration are set forth at
Sec. 2.21.
(g) The Commission shall review the guidelines, including the
salient factor score, periodically and may revise or modify them at any
time as deemed appropriate.
(h) If an offender was less than 18 years of age at the time of the
current offense, such youthfulness shall, in itself, be considered as a
mitigating factor.
(i) For criminal behavior committed while in confinement see
Sec. 2.36 (Rescission Guidelines).
(j)(1) In probation revocation cases, the original federal offense
behavior and any new criminal conduct on probation (federal or
otherwise) is considered in assessing offense severity. The original
federal conviction is also counted in the salient factor score as a
prior conviction. Credit is given toward the guidelines for any time
spent in confinement on any offense considered in assessing offense
severity.
(2) Exception: Where probation has been revoked on a complex
sentence (i.e., a committed sentence of more than six months on one
count or more of an indictment or information followed by a probation
term on other count(s) of an indictment or information), the case shall
be considered for
[[Page 110]]
guideline purposes under Sec. 2.21 as if parole rather than probation
had been revoked.
Guidelines for Decisionmaking
[Guidelines for decisionmaking, customary total time to be served before
release (including jail time)]
------------------------------------------------------------------------
Offender characteristics: Parole
prognosis (salient factor score
1981)
Offense characteristics: Severity of -----------------------------------
offense behavior Very
good Good (7 Fair (5 Poor (3
(10 to to 6) to 4) to 0)
8)
------------------------------------------------------------------------
Guideline range (months)
Category:
1................................. [lE]=4 [lE]=8 8-12 12-16
2................................. [lE]=6 [lE]=10 12-16 16-22
3................................. [lE]=10 12-16 18-24 24-32
4................................. 12-18 20-26 26-34 34-44
5................................. 24-36 36-48 48-60 60-72
6................................. 40-52 52-64 64-78 78-100
7................................. 52-80 64-92 78-110 100-148
8 \1\............................. 100+ 120+ 150+ 180+
------------------------------------------------------------------------
\1\ Note: For Category Eight, no upper limits are specified due to the
extreme variability of the cases within this category. For decisions
exceeding the lower limit of the applicable guideline category by more
than 48 months, the Commission will specify the pertinent case factors
upon which it relied in reaching its decision, which may include the
absence of any factors mitigating the offense. This procedure is
intended to ensure that the prisoner understands that individualized
consideration has been given to the facts of the case, and not to
suggest that a grant of parole is to be presumed for any class of
Category Eight offenders. However, a murder committed to silence a
victim or witness, a contract murder, a murder by torture, the murder
of a law enforcement officer to carry out an offense, or a murder
committed to further the aims of an on-going criminal operation, shall
not justify a grant of parole at any point in the prisoner's sentence
unless there are compelling circumstances in mitigation (e.g., a
youthful offender who participated in a murder planned and executed by
his parent). Such aggravated crimes are considered, by definition, at
the extreme high end of Category Eight offenses. For these cases, the
expiration of the sentence is deemed to be a decision at the maximim
limit of the guideline range. (The fact that an offense does not fall
under the definition contained herein does not mean that the
Commission is obliged to grant a parole.)
U.S. Parole Commission Offense Behavior Severity Index
Chapter One Offenses of General Applicability
Chapter Two Offenses Involving the Person
Subchapter A--Homicide Offenses
Subchapter B--Assault Offenses
Subchapter C--Kidnaping and Related Offenses
Subchapter D--Sexual Offenses
Subchapter E--Offenses Involving Aircraft
Subchapter F--Communication of Threats
Chapter Three Offenses Involving Property
Subchapter A--Arson and Property Destruction Offenses
Subchapter B--Criminal Entry Offenses
Subchapter C--Robbery, Extortion, and Blackmail
Subchapter D--Theft and Related Offenses
Subchapter E--Counterfeiting and Related Offenses
Subchapter F--Bankruptcy Offenses
Subchapter G--Violations of Securities or Investment Regulations and
Antitrust Offenses
Chapter Four Offenses Involving Immigration, Naturalization, and
Passports
Chapter Five Offenses Involving Revenue
Subchapter A--Internal Revenue Offenses
Subchapter B--Customs Offenses
Subchapter C--Contraband Cigarettes
Chapter Six Offenses Involving Governmental Process
Subchapter A--Impersonation of Officials
Subchapter B--Obstructing Justice
Subchapter C--Official Corruption
Chapter Seven Offenses Involving Individual Rights
Subchapter A--Offenses Involving Civil Rights
Subchapter B--Offenses Involving Privacy
Chapter Eight Offenses Involving Explosives and Weapons
Subchapter A--Explosives and Other Dangerous Articles
Subchapter B--Firearms
Chapter Nine Offenses Involving Illicit Drugs
Subchapter A--Heroin and Opiate Offenses
Subchapter B--Marihuana and Hashish Offenses
Subchapter C--Cocaine Offenses
Subchapter D--Other Illicit Drug Offenses
Chapter Ten Offenses Involving National Defense
Subchapter A--Treason and Related Offenses
Subchapter B--Sabotage and Related Offenses
Subchapter C--Espionage and Related Offenses
Subchapter D--Selective Service Offenses
Subchapter E--Other National Defense Offenses
Chapter Eleven Offenses Involving Organized Criminal Activity,
Gambling, Obscenity, Sexual Exploitation of Children,
Prostitution, and Non-Governmental Bribery
Subchapter A--Organized Crime Offenses
Subchapter B--Gambling Offenses
Subchapter C--Obscenity
Subchapter D--Sexual Exploitation of Children
Subchapter E--Prostitution and White Slave Traffic
Subchapter F--Non-Governmental Bribery
Subchapter G--Currency Offenses
Chapter Twelve Miscellaneous Offenses
Chapter Thirteen General Notes and Definitions
Subchapter A--General Notes
Subchapter B--Definitions
Chapter One Offenses of General Applicability
101 Conspiracy
[[Page 111]]
Grade conspiracy in the same category as the underlying offense.
102 Attempt
Grade attempt in the same category as the offense attempted.
103 Aiding and Abetting
Grade aiding and abetting in the same category as the underlying
offense.
104 Accessory After the Fact
Grade accessory after the fact as two categories below the
underlying offense, but not less than Category One.
105 Solicitation to Commit a Crime of Violence
Grade solicitation to commit a crime of violence in the same
category as the underlying offense if the crime solicited would be
graded as Category Eight. In all other cases grade solicitation to
commit a crime of violence one category below the underlying offense,
but not less than Category One.
Note to Chapter One: The reasons for a conspiracy or attempt not
being completed may, where the circumstances warrant, be considered as a
mitigating factor (e.g., where there is voluntary withdrawal by the
offender prior to completion of the offense).
Chapter Two Offenses Involving the Person
Subchapter A--Homicide Offenses
201 Murder
Murder, or a forcible felony* resulting in the death of a person
other than a participating offender, shall be graded as Category Eight.
---------------------------------------------------------------------------
*Terms marked by an asterisk are defined in Chapter Thirteen.
---------------------------------------------------------------------------
202 Voluntary Manslaughter
Category Seven.
203 Involuntary Manslaughter
Category Four.
Subchapter B--Assault Offenses
211 Assault During Commission of Another Offense
(a) If serious bodily injury* results or if `serious bodily injury
is the result intended'*, grade as Category Seven;
(b) If bodily injury* results, or a weapon is fired by any offender,
grade as Category Six;
(c) Otherwise, grade as Category Five.
212 Assault
(a) If serious bodily injury* results or if `serious bodily injury
is the result intended'*, grade as Category Seven;
(b) If bodily injury* results or a dangerous weapon is used by any
offender, grade as Category Five;
(c) Otherwise, grade as Category Two;
(d) Exception: (1) If the victim was known to be a ``protected
person'' * or law enforcement, judicial, or correctional official, grade
conduct under (a) as Category Seven, (b) as Category six, and (c) as
Category Three.
(2) If an assault is committed while resisting an arrest or
detention initiated by a law enforcement officer or a civilian acting
under color of law, grade conduct under (a) as Category Seven, (b) as
Category Six, and (c) as Category Three.
(e) Exception: If not for ransom or terrorism, and no bodily injury
to victim, and limited duration (e.g., abducting the driver of a truck
during a hijacking and releasing him unharmed within an hour), grade as
Category Six.
213 Firing a Weapon at a Structure Where Occupants are Physically
Present
Grade according to the underlying offense if one can be established,
but not less than Category Five.
Subchapter C--Kidnaping and Related Offenses
221 Kidnaping
(a) If the purpose of the kidnaping is for ransom or terrorism,
grade as Category Eight;
(b) If a person is held hostage in a known place for purposes of
extortion (e.g., forcing a bank manager to drive to a bank to retrieve
money by holding a family member hostage at home), grade as Category
Seven;
(c) If a victim is used as a shield or hostage in a confrontation
with law enforcement authorities, grade as Category Seven;
(d) Otherwise, grade as Category Seven.
(e) Exception: If not for ransom or terrorism, and no bodily injury
to victim, and limited duration (e.g., abducting the driver of a truck
during a hijacking and releasing him unharmed within an hour), grade as
Category Six.
222 Demand for Ransom
(a) If a kidnapping has, in fact, occurred, but it is established
that the offender was not acting in concert with the kidnapper(s), grade
as Category Seven;
(b) If no kidnapping has occurred, grade as ``extortion''.
Subchapter D--Sexual Offenses
231 Rape or Forcible Sodomy
(a) Category Seven.
(b) Exception: If a prior consensual sexual relationship between
victim and offender is present, grade as Category Six.
232 Carnal Knowledge* or Sodomy Involving Minors
(a) Grade as Category Four, except as provided below.
(b) If the relationship is clearly consensual and the victim is at
least fourteen years old, and the age difference between the victim and
offender is less than four years, grade as Category One.
(c) If the victim is less than twelve years old, grade as Category
Seven.
(d) If the offender is an adult who has abused a position of trust
(e.g., teacher,
[[Page 112]]
counselor, or physician), or the offense involved predatory sexual
behavior, grade as Category Seven. Sexual behavior is deemed predatory
when the offender repeatedly uses any trick or other device to attract,
lure, or bribe victims into the initial contact that results in the
offense.
233 Other Unlawful Sexual Conduct With Minors
(a) Category Four
(b) Exception: If the victim is less than twelve years old grade as
Category Six.
Subchapter E--Offenses Involving Aircraft
241 Aircraft Piracy
Category Eight.
242 Interference with a Flight Crew
(a) If the conduct or attempted conduct has potential for creating a
significant safety risk to an aircraft or passengers, grade as Category
Seven.
(b) Otherwise, grade as Category Two.
Subchapter F--Communication of Threats
251 Communicating a Threat [to kill, assault, or kidnap]
(a) Category Four;
(b) Notes:
(1) Any overt act committed for the purposes of carrying out a
threat in this subchapter may be considered as an aggravating factor.
(2) If for purposes of extortion or obstruction of justice, grade
according to Chapter Three, subchapter C, or Chapter Six, subchapter B,
as applicable.
Chapter Three Offenses Involving Property
Subchapter A--Arson and Other Property Destruction Offenses
301 Property Destruction by Fire or Explosives
(a) If the conduct results in serious bodily injury* or if `serious
bodily injury is the result intended'*, grade as Category Seven;
(b) If the conduct (i) involves any place where persons are present
or likely to be present; or (ii) involves a residence, building, or
other structure; or (iii) results in bodily injury*, grade as Category
Six;
(c) Otherwise, grade as ``property destruction other than listed
above'' but not less than Category Five.
302 Wrecking a Train
Category Seven.
303 Property Destruction Other Than Listed Above
(a) If the conduct results in bodily injury,* or if ``serious bodily
injury is the result intended'',* grade as if ``assault during
commission of another offense'';
---------------------------------------------------------------------------
* Terms marked by an asterisk are defined in Chapter Thirteen.
---------------------------------------------------------------------------
(b) If damage of more than $5,000,000 is caused, grade as Category
Seven;
(c) If damage of more than $1,000,000 but not more than $5,000,000
is caused, grade as Category Six;
(d) If damage of more than $200,000 but not more than $1,000,000 is
caused, grade as Category Five;
(e) If damage of at least $40,000 but not more than $200,000 is
caused, grade as Category Four;
(f) If damage of at least $2,000 but less than $40,000 is caused,
grade as Category Three;
(g) If damage of less than $2,000 is caused, grade as Category One;
(h) Exception: If a significant interruption of a government or
public utility function is caused, grade as not less than Category
Three.
Subchapter B--Criminal Entry Offenses
311 Burglary or Unlawful Entry
(a) If the conduct involves an armory or similar facility (e.g., a
facility where automatic weapons or war materials are stored) for the
purpose of theft or destruction of weapons or war materials, grade as
Category Six;
(b) If the conduct involves an inhabited dwelling (whether or not a
victim is present), or any premises with a hostile confrontation with a
victim, grade as Category Five;
(c) If the conduct involves use of explosives or safecracking, grade
as Category Five;
(d) Otherwise, grade as ``theft'' offense, but not less than
Category Two.
(e) Exception: If the grade of the applicable ``theft'' offense
exceeds the grade under this subchapter, grade as a ``theft'' offense.
Subchapter C--Robbery, Extortion, and Blackmail
321 Robbery
(a) Category Five.
(b) Exceptions:
(1) If the grade of the applicable ``theft'' offense exceeds the
grade for robbery, grade as a ``theft'' offense.
(2) If any offender forces a victim to accompany any offender to a
different location, or if a victim is forcibly detained by being tied,
bound, or locked up, grade as Category Six.
(3) Pickpocketing (stealth--no force or fear), see subchapter D.
(c) Note: Grade purse snatching (fear or force) as robbery.
322 Extortion
(a) If by threat of physical injury to person or property, or
extortionate extension of credit (loansharking), grade as Category Five;
[[Page 113]]
(b) If by use of official governmental position, grade according to
Chapter Six, subchapter C.
(c) If neither (a) nor (b) is applicable, grade under Chapter
Eleven, subchapter F;
323 Blackmail [threat to injure reputation or accuse of crime]
Grade as a ``theft'' offense according to the value of the property
demanded, but not less than Category Three. Actual damage to reputation
may be considered as an aggravating factor.
Subchapter D--Theft and Related Offenses
331 Theft, Forgery, Fraud, Trafficking in Stolen Property*, Interstate
Transportation of Stolen Property, Receiving Stolen Property,
Embezzlement, and Related Offenses
(a) If the value of the property* is more than $5,000,000, grade as
Category Seven;
(b) If the value of the property* is more than $1,000,000 but not
more than $5,000,000, grade as Category Six;
---------------------------------------------------------------------------
*Terms marked by an asterisk are defined in Chapter Thirteen.
---------------------------------------------------------------------------
(c) If the value of the property* is more than $200,000 but not more
than $1,000,000, grade as Category Five;
(d) If the value of the property* is at least $40,000 but not more
than $200,000, grade as Category Four;
(e) If the value of the property* is at least $2,000 but less than
$40,000, grade as Category Three;
(f) If the value of the property* is less than $2,000, grade as
Category One.
(g) Exceptions:
(1) Offenses involving stolen checks, credit cards, money orders or
mail, forgery, fraud, interstate transportation of stolen or forged
securities, trafficking in stolen property, or embezzlement shall be
graded as not less than Category Two;
(2) Theft of an automobile shall be graded as no less than Category
Three. Note: where the vehicle was recovered within 72 hours with no
significant damage and the circumstances indicate that the only purpose
of the theft was temporary use (e.g., joyriding), such circumstances may
be considered as a mitigating factor.
(3) Grade obtaining drugs for own use by a fraudulent or
fraudulently obtained prescription as Category Two.
(4) Grade manufacture, sale, and fraudulent use of credit cards as
follows:
(i) Grade the manufacture, distribution or possession of counterfeit
or altered credit cards as not less than Category Four.
(ii) Grade the distribution or possession of multiple stolen credit
cards as not less than Category Three.
(iii) Grade the distribution or possession of a single stolen credit
card as not less than Category Two.
(h) Note: In ``theft'' offenses, the total amount of the theft
committed or attempted by the offender, or others acting in concert with
the offender, is to be used.
(2) Grade fraudulent sale of drugs (e.g., sale of sugar as heroin)
as `fraud'.
332 Pickpocketing [stealth-no force or fear]
Grade as a ``theft'' offense, but not less than Category Three.
333 Fraudulent Loan Applications
Grade as a ``fraud'' offense according to the amount of the loan.
334 Preparation or Possession of Fraudulent Documents
(a) If for purposes of committing another offense, grade according
to the offense intended;
(b) Otherwise, grade as Category Two.
335 Criminal Copyright Offenses
(a) If very large scale (e.g., more than 100,000 sound recordings or
more than 10,000 audio visual works), grade as Category Five;
(b) If large scale (e.g., 20,000-100,000 sound recordings or 2,000-
10,000 audio visual works), grade as Category Four;
(c) If medium scale (e.g., 2,000-19,999 sound recordings or 200-
1,999 audio visual works), grade as Category Three;
(d) If small scale (e.g., less than 2,000 sound recordings or less
than 200 audio visual works), grade as Category Two.
Subchapter E--Counterfeiting and Related Offenses
341 Passing or Possession of Counterfeit Currency or Other Medium of
Exchange*
(a) If the face value of the currency or other medium of exchange is
more than $5,000,000, grade as Category Seven;
(b) If the face value of the currency or other medium of exchange is
more than $1,000,000 but not more than $5,000,000, grade as Category
Six;
(c) If the face value is more than $200,000 but not more than
$1,000,000, grade as Category Five;
(d) If the face value is at least $40,000 but not more than
$200,000, grade as Category Four;
(e) If the face value is at least $2,000 but less than $40,000,
grade as Category Three;
(f) If the face value is less than $2,000, grade as Category Two.
342 Manufacture of Counterfeit Currency or Other Medium of Exchange* or
Possession of Instruments for Manufacture
Grade manufacture or possession of instruments for manufacture
(e.g., a printing press or plates) according to the quantity printed
(see passing or possession)), but not less than Category Five. The term
manufacture refers to the capacity to print or generate multiple copies;
it does not apply to pasting together parts of different notes.
[[Page 114]]
Subchapter F--Bankruptcy Offenses
351 Fraud in Bankruptcy or Concealing Property
Grade as a ``fraud'' offense.
Subchapter G--Violation of Securities or Investment Regulations and
Antitrust Offenses
361 Violation of Securities or Investment Regulations
(a) If for purposes of fraud, grade according to the underlying
offense;
(b) Otherwise, grade as Category Two.
362 Antitrust Offenses
(a) If estimated economic impact is more than one million dollars,
grade as Category Four;
(b) If the estimated economic impact is more than $100,000 but not
more than one million dollars, grade as Category Three;
(c) Otherwise, grade as Category Two.
(d) Note: The term `economic impact' refers to the estimated loss to
any victims (e.g., loss to consumers from a price fixing offense).
363 Insider Trading
(a) If the estimated economic impact is more than $5,000,000, grade
as Category Seven;
(b) If the estimated economic impact is more than $1,000,000 but not
more than $5,000,000, grade as Category Six;
(c) If the estimated economic impact is more than $200,000 but not
more than $1,000,000, grade as Category Five;
(d) If the estimated economic impact is at least $40,000 but not
more than $200,000, grade as Category Four;
(e) If the estimated economic impact is at least $2,000 but less
than $40,000, grade as Category Three;
(f) If the estimated economic impact is less than $2,000, grade as
Category Two.
(g) Note: The term `economic impact' includes the damage sustained
by the victim whose information was unlawfully used, plus any other
illicit profit resulting from the offense.
Chapter Four Offenses Involving Immigration, Naturalization, and
Passports
401 Unlawfully Entering the United States as an Alien
Category One.
402 Transportation of Unlawful Alien(s)
(a) If the transportation of unlawful alien(s) involves detention
and demand for payment, grade as Category Five;
(b) Otherwise, grade as Category Three.
403 Offenses Involving Passports
(a) If making an unlawful passport for distribution to another,
possession with intent to distribute, or distribution of an unlawful
passport, grade as Category Three;
(b) If fraudulently acquiring or improperly using a passport, grade
as Category Two.
404 Offenses Involving Naturalization or Citizenship Papers
(a) If forging or falsifying naturalization or citizenship papers
for distribution to another, possession with intent to distribute, or
distribution, grade as Category Three;
(b) If acquiring fraudulent naturalization or citizenship papers for
own use or improper use of such papers, grade as Category Two;
(c) If failure to surrender canceled naturalization or citizenship
certificate(s), grade as Category One.
Chapter Five Offenses Involving Revenue
Subchapter A--Internal Revenue Offenses
501 Tax Evasion [income tax or other taxes]
(a) If the amount of tax evaded or evasion attempted is more than
$5,000,000, grade as Category Seven;
(b) If the amount of tax evaded or evasion attempted is more than
$1,000,000 but not more than $5,000,000, grade as Category Six;
(c) If the amount of tax evaded or evasion attempted is more than
$200,000 but not more than $1,000,000, grade as Category Five;
(d) If the amount of tax evaded or evasion attempted is at least
$40,000 but not more than $200,000, grade as Category Four;
(e) If the amount of tax evaded or evasion attempted is at least
$2,000 but less than $40,000, grade as Category Three;
(f) If the amount of tax evaded or evasion attempted is less than
$2,000, grade as Category One.
(g) Notes:
(1) Grade according to the amount of tax evaded or evasion
attempted, not the gross amount of income.
(2) Tax evasion refers to failure to pay applicable taxes. Grade a
false claim for a tax refund (where tax has not been withheld) as a
``fraud'' offense.
502 Operation of an Unregistered Still
Grade as a ``tax evasion'' offense.
Subchapter B--Customs Offenses
511 Smuggling Goods into the United States
(a) If the conduct is for the purpose of tax evasion, grade as a
`tax evasion' offense.
(b) If the article is prohibited from entry to the country
absolutely (e.g., illicit drugs or weapons), use the grading applicable
to possession with intent to distribute of such articles, or the grading
applicable to tax evasion, whichever is higher, but not less than
Category Two;
(c) If the conduct involves breaking seals, or altering or defacing
customs marks, or concealing invoices, grade according to (a) or (b), as
applicable, but not less than Category Two.
512 Smuggling Goods into Foreign Countries in Violation of Foreign Law
(re: 18 U.S.C. 546)
Category Two.
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Subchapter C--Contraband Cigarettes
521 Trafficking in Contraband Cigarettes (re: 18 U.S.C. 2342)
Grade as a tax evasion offense.
Chapter Six Offenses Involving Governmental Process
Subchapter A--Impersonation of Officials
601 Impersonation of Official
(a) If for purposes of commission of another offense, grade
according to the offense attempted, but not less than Category Two;
(b) Otherwise, grade as Category Two.
Subchapter B--Obstructing Justice
611 Perjury
(a) If the perjured testimony concerns a criminal offense, grade as
accessory after the fact, but not less than Category Three;
(b) Otherwise, grade as Category Three.
(c) Suborning perjury, grade as perjury.
612 Unlawful False Statements Not Under Oath
Category One.
613 Tampering With Evidence or Witness, Victim, Informant or Juror
(a) If concerning a criminal offense, grade as accessory after the
fact, but not less than Category Three.
(b) Otherwise, grade as Category Three.
(c) Exception: Intimidation by threat of physical harm, grade as not
less than Category Five.
614 Misprision of a Felony*
Grade as if ``accessory after the fact'' but not higher than
Category Three.
615 Harboring a Fugitive
Grade as if `accessory after the fact' to the offense for which the
fugitive is wanted, but not higher than Category Three.
616 Escape
If in connection with another offense for which a severity rating
can be assessed, grade the underlying offense and apply the rescission
guidelines to determine an additional penalty. Otherwise, grade as
Category Three.
617 Failure To Appear*
(a) In Felony Proceedings. If in connection with an offense for
which a severity rating can be assessed, add to the guidelines otherwise
appropriate the following: (i) [lE] 6 months if voluntary return within
6 days, or (ii) 6-12 months in any other case. Otherwise, grade as
Category Three.
(b) In Misdemeanor Proceedings. Grade as Category One.
(c) Note: For purposes of this subsection, a misdemeanor is defined
as an offense for which the maximum penalty authorized by law (not
necessarily the penalty actually imposed) does not exceed one year.
618 Contempt of Court
(a) Criminal Contempt (re: 18 U.S.C. 402). Where imposed in
connection with a prisoner serving a sentence for another offense, add
<<=6 months to the guidelines otherwise appropriate.
(b) Exception: If a criminal sentence is imposed under 18 U.S.C. 401
for refusal to testify concerning a criminal offense, grade such conduct
as if accessory after the fact.
(c) Civil Contempt. See 28 CFR 2.10.
Subchapter C--Official Corruption
621 Bribery or Extortion [use of official position--no physical threat]
(a)Grade as a ``theft offense'' according to the value of the bribe
demanded or received, or the favor received by the bribe-giver
(whichever is greater), but not less than Category Three. The ``favor
received'' is the gross value of the property, contract, obligation,
interest, or payment intended to be awarded to the bribe-giver in return
for the bribe. Grade the bribe-taker in the same manner.
(b) If the above conduct involves a pattern of corruption (e.g.,
multiple instances), grade as not less than Category Four.
(c) If the purpose of the conduct is the obstruction of justice,
grade as if ``perjury''.
(d) Notes:
(1) The grading in this subchapter applies to each party to a bribe.
(2) The extent to which the criminal conduct involves a breach of
public trust, causing injury beyond that describable by monetary gain,
may be considered as an aggravating factor.
622 Other Unlawful Use of Governmental Position
Category Two.
Subchapter D--Voting Fraud
631 Voting Fraud
Category Four.
Chapter Seven Offenses Involving Individual Rights
Subchapter A--Offenses Involving Civil Rights
701 Conspiracy Against Rights of Citizens (re: 18 U.S.C. 241)
(a) If death results, grade as Category Eight;
(b) Otherwise, grade as if ``assault''.
702 Deprivation of Rights Under Color of Law (re: 18 U.S.C. 242)
(a) If death results, grade as Category Eight;
(b) Otherwise, grade as if ``assault''.
703 Federally Protected Activity (re: 18 U.S.C. 245)
(a) If death results, grade as Category Eight;
(b) Otherwise, grade as if ``assault''.
704 Intimidation of Persons in Real Estate Transactions Based on Racial
Discrimination (re: 42 U.S.C. 3631)
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(a) If death results, grade as Category Eight;
(b) Otherwise, grade as if ``assault''.
705 Transportation of Strikebreakers (re: 18 U.S.C. 1231)
Category Two.
Subchapter B--Offenses Involving Privacy
711 Interception and Disclosure of Wire or Oral Communications (re: 18
U.S.C. 2511)
Category Two.
712 Manufacture, Distribution, Possession, and Advertising of Wire or
Oral Communication Intercepting Devices (re: 18 U.S.C. 2512)
(a) Category Three.
(b) Exception: If simple possession, grade as Category Two.
713 Unauthorized Opening of Mail
Category Two.
Chapter Eight Offenses Involving Explosives and Weapons
Subchapter A--Explosives Offenses and Other Dangerous Articles
801 Unlawful Possession or Distribution of Explosives; or Use of
Explosives During a Felony
Grade according to offense intended, but not less than Category
Five.
802 Mailing Explosives or Other Injurious Articles With Intent To
Commit a Crime
Grade according to offense intended, but not less than Category
Five.
Subchapter B--Firearms
811 Possession by Prohibited Person (e.g., ex-felon)
(a) If single weapon (rifle, shotgun, or handgun) with ammunition of
the same caliber, or ammunition of a single caliber (without weapon),
grade as Category Three;
(b) If multiple weapons (rifles, shotguns, or handguns), or
ammunition of different calibers, or single weapon and ammunition of a
different caliber, grade as Category Four.
812 Unlawful Possession or Manufacture of Sawed-off Shotgun, Machine
Gun, Silencer, or ``Assassination kit''
(a) If silencer or ``assassination kit'', grade as Category Six;
(b) If sawed-off shotgun or machine gun, grade as Category Five.
813 Unlawful Distribution of Weapons or Possession With Intent To
Distribute
(a) If silencer(s) or ``assassination kit(s)'', grade as Category
Six;
(b) If sawed-off shotgun(s) or machine gun(s), grade as Category
Five;
(c) If multiple weapons (rifles, shotguns, or handguns), or
ammunition of different calibers, or single weapon and ammunition of a
different caliber, grade as Category Four;
(d) If single weapon (rifle, shotgun, or handgun) with ammunition of
the same caliber, or ammunition of a single caliber (without weapon),
grade as Category Three.
Chapter Nine Offenses Involving Illicit Drugs
Subchapter A--Heroin and Opiate* Offenses
901 Distribution or Possession With Intent To Distribute
(a) If extremely large scale (e.g., involving 3 kilograms or more of
100% pure heroin, or equivalent amount), grade as Category Eight [except
as noted in (c) below];
(b) if very large scale (e.g., involving 1 kilogram but less than 3
kilograms of 100% pure herion, or equivalent amount), grade as Category
Seven [except as noted in (c) below];
(c) Where the Commission finds that the offender had only a
peripheral role*, grade conduct under (a) or (b) as Category Six;
(d) If large scale (e.g., involving 50-999 grams of 100% pure
heroin, or equivalent amount), grade as Category Six [except as noted in
(e) below];
(e) Where the Commission finds that the offender had only a
peripheral role*, grade conduct under (d) as Category Five.
(f) If medium scale (e.g., involving 5-49 grams of 100% pure heroin,
or equivalent amount), grade as Category Five;
(g) If small scale (e.g., involving less than 5 grams of 100% pure
heroin, or equivalent amount), grade as Category Four;
902 Simple Possession
Category One.
Subchapter B--Marihuana and Hashish Offenses
911 Distribution or Possession With Intent To Distribute
(a) If extremely large scale (e.g., involving 20,000 pounds or more
of marihuana/6,000 pounds or more of hashish/600 pounds or more of hash
oil), grade as Category Six [except as noted in (b) below];
(b) Where the Commission finds that the offender had only a
peripheral role, grade* conduct under (a) as Category Five;
(c) If very large scale (e.g., involving 2,000-19,999 pounds of
marihuana/600-5,999 pounds of hashish/60-599 pounds of hash oil), grade
as Category Five;
(d) If large scale (e.g., involving 200-1,999 pounds of marihuana/
60-599 pounds of hashish/6-59.9 pounds of hash oil), grade as Category
Four;
(e) If medium scale (e.g., involving 50-199 pounds of marihuana/15-
59.9 pounds of hashish/1.5-5.9 pounds of hash oil), grade as Category
Three;
(f) If small scale (e.g., involving 10-49 pounds of marihuana/3-14.9
pounds of hashish/.3-1.4 pounds of hash oil), grade as Category Two;
(g) If very small scale (e.g., involving less than 10 pounds of
marihuana/less than 3 pounds of hashish/less than .3 pounds of hash
oil), grade as Category One.
[[Page 117]]
912 Simple Possession
Category One.
Subchapter C--Cocaine Offenses
921 Distribution or Possession With Intent to Distribute
(a) If extremely large scale (e.g., involving 15 kilograms or more
of 100% purity, or equivalent amount; or 1.5 kilograms or more of
freebased cocaine), grade as Category Eight [except as noted in (c)
below];
(b) If very large scale (e.g., involving 5 kilograms, but less than
15 kilograms of 100% purity, or equivalent amount; or 500 grams but less
than 1.5 kilograms of freebased cocaine), grade as Category Seven
[except as noted in (c) below];
(c) Where the Commission finds that the offender had only a
peripheral role*, grade conduct under (a) or (b) as Category Six;
(d) If large scale (e.g., involving more than 1 kilogram, but less
than 5 kilograms of 100% purity, or equivalent amount; or more than 100
grams, but less than 500 grams of freebased cocaine) grade as Category
Six [except as noted in (e) below];
(e) Where the Commission finds that the offender had only a
peripheral role, grade conduct under (d) as Category Five;
(f) If medium scale (e.g., involving 100 grams-1 kilogram of 100%
purity, or equivalent amount; or 10 grams-100 grams of freebased
cocaine), grade as Category Five;
(g) If small scale (e.g., involving 5-99 grams of 100% purity, or
equivalent amount; or 1 gram-9.9 grams of freebased cocaine), grade as
Category Four;
(h) If very small scale (e.g., involving less than 1.0-4.9 grams of
100% purity, or equivalent amount; or less than 1 gram of freebased
cocaine), grade as Category Three;
(i) If extremely small scale (e.g., involving less than 1 gram of
100% purity, or equivalent amount), grade as Category Two.
922 Simple Possession
Category One.
Subchapter D--Other Illicit Drug Offenses
931 Distribution or Possession With Intent To Distribute
(a) If very large scale (e.g., involving more than 200,000 doses),
grade as Category Six [except as noted in (b) below];
(b) Where the Commission finds that the offender had only a
peripheral role*, grade conduct under (a) as Category Five;
(c) If large scale (e.g., involving 20,000-200,000 doses), grade as
Category Five;
(d) If medium scale (e.g., involving 1,000-19,999 doses), grade as
Category Four;
(e) If small scale (e.g., involving 200-999 doses), grade as
Category Three;
(f) If very small scale (e.g., involving less than 200 doses), grade
as Category Two.
932 Simple Possession
Category One.
Notes to Chapter Nine:
(1) Grade manufacture of synthetic illicit drugs as listed above,
but not less than Category Five.
(2) ``Equivalent amounts'' for the cocaine and opiate categories may
be computed as follows: 1 gram of 100% pure is equivalent to 2 grams of
50% pure and 10 grams of 10% pure, etc.
(3) Grade unlawful possession or distribution of precursors of
illicit drugs as Category Five (i.e., aiding and abetting the
manufacture of synthetic illicit drugs).
(4) If weight, but not purity is available, the following grading
may be used:
Heroin
Extremely large scale--6 kilograms or more
Very large scale--2-5.99 kilograms
Large scale--200 gms.-1.99 kilograms
Medium scale--28.35-199.99 gms.
Small scale--Less than 28.35 gms.
Cocaine
Extremely large scale--18.75 kilograms or more
Very large scale--6.25-18.74 kilograms
Large scale--1.25-6.24 kilograms
Medium scale--200 gms.-1.24 kilograms
Small scale--20 gms.-199.99 gms.
Very small scale--4 gms.-19.99 gms.
Extremely small scale--Less than 4 gms.
Chapter Ten Offenses Involving National Defense
Subchapter A--Treason and Related Offenses
1001 Treason
Category Eight.
1002 Rebellion or Insurrection
Category Seven.
Subchapter B--Sabotage and Related Offenses
1011 Sabotage
Category Eight.
1012 Enticing Desertion
(a) In time of war or during a national defense emergency, grade as
Category Four;
(b) Otherwise, grade as Category Three.
1013 Harboring or Aiding a Deserter
Category One.
Subchapter C--Espionage and Related Offenses
1021 Espionage
Category Eight.
Subchapter D--Selective Service Offenses
1031 Failure to Register, Report for Examination or Induction
(a) If committed during time of war or during a national defense
emergency, grade as Category Four;
[[Page 118]]
(b) If committed when draftees are being inducted into the armed
services, grade as Category Three;
(c) Otherwise, grade as Category One.
Subchapter E--Other National Defense Offenses
1041 Offenses Involving Nuclear Energy
Unauthorized production, possession, or transfer of nuclear weapons
or special nuclear material or receipt of or tampering with restricted
data on nuclear weapons or special nuclear material, grade as Category
Eight.
1042 Violations of Export Administration Act (50 U.S.C. 2410)
Grade conduct involving ``national security controls'' or ``nuclear
nonproliferation controls'' as Category Six.
1043 Violations of the Arms Control Act (22 U.S.C. 2278)
(a) Grade conduct involving export of sophisticated weaponry (e.g.,
aircraft, helicopters, armored vehicles, or ``high technology'' items)
as Category Six.
(b) Grade Conduct involving export of other weapons (e.g., rifles,
handguns, machine guns, or hand grenades) as if a weapons/explosive
distribution offense under Offenses Involving Explosives and Weapons
(Chapter Eight).
Chapter Eleven--Offenses Involving Organized Crime Activity, Gambling,
Obscenity, Sexual Exploitation of Children, Prostitution, Non-
Governmental Corruption, and the Environment
Subchapter A--Organized Crime Offenses
1101 Racketeer Influence and Corrupt Organizations (re: 18 U.S.C. 1961-
63)
Grade according to the underlying offense attempted, but not less
than Category Five.
1102 Interstate or Foreign Travel or Transportation in Aid of
Racketeering Enterprise (re: 18 U.S.C. 1952)
Grade according to the underlying offense attempted, but not less
than Category Three.
Subchapter B--Gambling Offenses
1111 Gambling Law Violations--Operating or Employment in an Unlawful
Business (re: 18 U.S.C. 1955)
(a) If large scale operation [e.g., Sports books (estimated daily
gross more than $15,000); Horse books (estimated daily gross more than
$4,000); Numbers bankers (estimated daily gross more than $2,000); Dice
or card games (estimated daily `house cut' more than $1,000); video
gambling (eight or more machines)]; grade as Category Four;
(b) If medium scale operation [e.g., Sports books (estimated daily
gross $5,000--$15,000); Horse books (estimated daily gross $1,500--
$4,000); Numbers bankers (estimated daily gross $750--$2,000); Dice or
card games (estimated daily `house cut' $400--$1,000); video gambling
(four-seven machines)]; grade as Category Three;
(c) If small scale operation [e.g., Sports books (estimated daily
gross less than $5,000); Horse books (estimated daily gross less than
$1,500); Numbers bankers (estimated daily gross less than $750); Dice or
card games (estimated daily `house cut' less than $400); video gambling
(three or fewer machines)]; grade as Category Two;
(d) Exception: Where it is established that the offender had no
proprietary interest or managerial role, grade as Category One.
1112 Interstate Transportation of Wagering Paraphernalia (re: 18 U.S.C.
1953)
Grade as if `operating a gambling business'.
1113 Wire Transmission of Wagering Information (re: 18 U.S.C. 1084)
Grade as if ``operating a gambling business''.
1114 Operating or Owning a Gambling Ship (re: 18 U.S.C. 1082)
Category Three.
1115 Importing or Transporting Lottery Tickets; Mailing Lottery Tickets
or Related Matter (re: 18 U.S.C. 1301, 1302)
(a) Grade as if ``operating a gambling business'';
(b) Exception: If non-commercial, grade as Category One.
Subchapter C--Obscenity
1121 Mailing, Importing, or Transporting Obscene Matter
(a) If for commercial purposes, grade as Category Three;
(b) Otherwise, Category One.
1122 Broadcasting Obscene Language
Category One.
Subchapter D--Sexual Exploitation of Children
1131 Sexual Exploitation of Children* (re: 18 U.S.C. 2251, 2252)
(a) Category Six;
(b) Exception: Where the Commission finds the offender had only a
peripheral role (e.g., a retailer receiving such material for resale but
with no involvement in the production or wholesale distribution of such
material), grade as Category Five.
Subchapter E--Prostitution and White Slave Traffic
1141 Interstate Transportation for Commercial Purposes
(a) If physical coercion, or involving person(s) of age less than
18, grade as Category Six;
(b) Otherwise, grade as Category Four.
1142 Prostitution
Category One.
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Subchapter F--Non-Governmental Corruption
1151 Demand or Acceptance of Unlawful Gratuity Not Involving Federal,
State, or Local Government Officials
Grade as if a fraud offense according to (1) the amount of the bribe
offered or demanded, or (2) the financial loss to the victim, whichever
is higher.
1152 Sports Bribery
If the conduct involves bribery in a sporting contest, grade as if a
theft offense according to the amount of the bribe, but not less than
Category Three.
Subchapter G--Currency Offenses
1161 Reports on Monetary Instrument Transactions
(a) If extremely large scale (e.g., the estimated gross amount of
currency involved is more than $5,000,000), grade as Category Seven;
(b) If very large scale (e.g., the estimated gross amount of
currency involved is more than $1,000,000 but not more than $5,000,000),
grade as Category Six;
(c) If large scale (e.g., the estimated gross amount of currency
involved is more than $200,000 but not more than $1,000,000), grade as
Category Five;
(d) If medium scale (e.g., the estimated gross amount of currency
involved is at least $40,000 but not more than $200,000), grade as
Category Four;
(e) If small scale (e.g., the estimated gross amount of currency
involved is less than $40,000), grade as Category Three.
Subchapter H--Environmental Offenses
1171 Knowing Endangerment Resulting From Unlawful Treatment,
Transportation, Storage, or Disposal of Hazardous Waste [Re:
42 U.S.C. 6928(e)]
(a) If death results, grade as Category Seven;
(b) If serious bodily injury results, grade as Category Six;
(c) Otherwise, grade as Category Five.
(d) Note: Knowing Endangerment requires a finding that the offender
knowingly transported, treated, stored, or disposed of any hazardous
waste and knew that he thereby placed another person in imminent danger
of death or serious bodily injury.
1172 Knowing Disposal and/or Storage and Treatment of Hazardous Waste
Without a Permit; Transportation of Hazardous Waste to an
Unpermitted Facility [Re: 42 U.S.C. 6928(d)(1-2)]
(a) If death results, grade as Category Six;
(b) If (1) serious bodily injury results; or (2) a substantial
potential for death or serious bodily injury in the future results; or
(3) a substantial disruption to the environment results (e.g., estimated
cleanup cost exceeds $200,000, or a community is evacuated for more than
72 hours), grade as Category Five;
(c) If (1) bodily injury results, or (2) a significant disruption to
the environment results (e.g., estimated cleanup costs of $40,000-
$200,000, or a community is evacuated for 72 hours or less), grade as
Category Four;
(d) Otherwise, grade as Category Three;
(e) Exception: Where the offender is a non-managerial employee
(i.e., a truck driver or loading dock worker) acting under the orders of
another person, grade as two categories below the underlying offense,
but not less than Category One.
Chapter Twelve Miscellaneous Offenses
If an offense behavior is not listed, the proper category may be
obtained by comparing the severity of the offense behavior with those of
similar offense behaviors listed in Chapters One-Eleven. If, and only
if, an offense behavior cannot be graded by reference to Chapters One-
Eleven, the following formula may be used as a guide.
------------------------------------------------------------------------
Maximum sentence authorized by statute (not necessarily the Grading
sentence imposed) (category)
------------------------------------------------------------------------
<< 2 years.................................................. 1
2 to 3 years................................................ 2
4 to 5 years................................................ 3
6 to 10 years............................................... 4
11 to 20 years.............................................. 5
21 to 29 years.............................................. 6
30 years to life............................................ 7
------------------------------------------------------------------------
Chapter Thirteen General Notes and Definitions
Subchapter A--General Notes
1. If an offense behavior can be classified under more than one
category, the most serious applicable category is to be used.
2. If an offense behavior involved multiple separate offenses, the
severity level may be increased. Exception: in cases graded as Category
Seven, multiple separate offenses are to be taken into account by
consideration of a decision above the guidelines rather than by
increasing the severity level.
(a) In certain instances, the guidelines specify how multiple
offenses are to be rated. In offenses rated by monetary loss (e.g.,
theft and related offenses, counterfeiting, tax evasion) or drug
offenses, the total amount of the property or drugs involved is used as
the basis for the offense severity rating. In instances not specifically
covered in the guidelines, the decision-makers must exercise discretion
as to whether or not the multiple offense behavior is sufficiently
aggravating to justify increasing the severity rating. The following
chart is intended to provide guidance in assessing whether the severity
of multiple offenses is sufficient to
[[Page 120]]
raise the offense severity level; it is not intended as a mechanical
rule.
Multiple Separate Offenses
------------------------------------------------------------------------
Severity Points Severity Points
------------------------------------------------------------------------
Category One..................... = 1/9 Category Five...... = 9
Category Two..................... = 1/3 Category Six....... = 27
Category Three................... = 1 Category Seven..... = 45
Category Four.................... = 3 ................... .......
------------------------------------------------------------------------
Examples: 3 Category Five Offense [3x(9)=27]=Category Six, 5 Category
Five Offenses [5x(9)=45]=Category Seven, 2 Category Six
Offenses [2x(27)=54]=Category Seven
(b) The term `multiple separate offenses' generally refers to
offenses committed at different times. However, there are certain
circumstances in which offenses committed at the same time are properly
considered multiple separate offenses for the purpose of establishing
the offense severity rating. These include (1) unrelated offenses, and
(2) offenses involving the unlawful possession of weapons during
commission of another offense.
(c) For offenses graded according to monetary value (e.g., theft)
and drug offenses, the severity rating is based on the amount or
quantity involved and not on the number of separate instances.
(d) Intervening Arrests. Where offenses ordinarily graded by
aggregation of value/quantity (e.g., property or drug offenses) are
separated by an intervening arrest, grade (1) by aggregation of value/
quantity or (2) as multiple separate offenses, whichever results in a
higher severity category.
(e) Income Tax Violations Related to Other Criminal Activity. Where
the circumstances indicate that the offender's income tax violations are
related to failure to report income from other criminal activity (e.g.,
failure to report income from a fraud offense) grade as tax evasion or
according to the underlying criminal activity established, whichever is
higher. Do not grade as multiple separate offenses.
3. In cases where multiple sentences have been imposed (whether
consecutive or concurrent, and whether aggregated or not) an offense
severity rating shall be established to reflect the overall severity of
the underlying criminal behavior. This rating shall apply whether or not
any of the component sentences have expired.
4. The prisoner is to be held accountable for his own actions and
actions done in concert with others; however, the prisoner is not to be
held accountable for activities committed by associates over which the
prisoner has no control and could not have been reasonably expected to
foresee. However, if the prisoner has been convicted of a conspiracy, he
must be held accountable for the criminal activities committed by his
co-conspirators, provided such activities were committed in furtherance
of the conspiracy and subsequent to the date the prisoner joined the
conspiracy. However, if the prisoner has been convicted of a conspiracy,
he must be held accountable for the criminal activities committed by his
co-conspirators, provided such activities were committed in furtherance
of the conspiracy and subsequent to the date the prisoner joined the
conspiracy, except in the case of an independent, small-scale operator
whose role in the conspiracy was neither established nor significant. An
offender has an ``established'' role in a conspiracy if, for example, he
takes orders to perform a function that assist others to further the
objectives of the conspiracy, even if his activities did not
significantly contribute to those objectives. For such offenders,
however, a ``peripheral role'' reduction may be considered.
5. The following are examples of circumstances that may be
considered as aggravating factors: extreme cruelty or brutality to a
victim; the degree of permanence or likely permanence of serious bodily
injury resulting from the offender's conduct; an offender's conduct
while attempting to evade arrest that causes circumstances creating a
significant risk of harm to other persons (e.g., causing a high speed
chase or provoking the legitimate firing of a weapon by law enforcement
officers).
6. The phrase ``may be considered an aggravating/mitigating factor''
is used in this index to provide guidance concerning certain
circumstances which may warrant a decision above or below the
guidelines. This does not restrict consideration of above or below
guidelines decisions only to these circumstances, nor does it mean that
a decision above or below the guidelines is mandated in every such case.
Subchapter B--Definitions
1. ``Accessory after the fact'' refers to the conduct of one who,
knowing an offense has been committed, assists the offender to avoid
apprehension, trial, or punishment (e.g., by assisting in disposal of
the proceeds of an offense).
Note: Where the conduct consists of concealing an offense by making
false statements not under oath, grade as ``misprision of felony''.
Where the conduct consists of haboring a fugitive, grade as ``harboring
a fugitive''.
2. ``Assassination kit'' refers to a disguised weapon designed to
kill without attracting attention. Unlike other weapons such as sawed-
off shotguns which can be used to intimidate, assassination kits are
intended to be undetectable in order to make the victim and bystanders
unaware of the threat. A typical assassination kit is usually, but not
always, a firearm with a silencer concealed in
[[Page 121]]
a briefcase or similar disguise and fired without showing the weapon.
3. ``Bodily injury'' refers to injury of a type normally requiring
medical attention [e.g., broken bone(s), laceration(s) requiring
stitches, severe bruises].
4. ``Carnal knowledge'' refers to sexual intercourse with a female
who is less than 16 years of age and is not the wife of the offender.
5. ``Extortionate extension of credit'' refers to any extension of
credit with respect to which it is the understanding of the creditor and
the debtor at the time it is made that delay in making repayment or
failure to make repayment could result in the use of violence or other
criminal means to cause harm to the person, reputation, or property of
any person.
6. ``Failure to appear'' refers to the violation of court imposed
conditions of release pending trial, appeal, or imposition or execution
of sentence by failure to appear before the court or to surrender for
service of sentence.
7. ``Forcible felony'' includes, but shall not be limited to,
kidnaping, rape or sodomy, aircraft piracy or interference with a flight
crew, arson or property destruction offenses, escape, robbery,
extortion, or criminal entry offenses, and attempts to commit such
offenses.
8. ``Involuntary manslaughter'' refers to the unlawful killing of a
human being without malice in the commission of an unlawful act not
amounting to a felony, or in the commission in a unlawful manner, or
without due caution and circumspection, of a lawful act which might
produce death.
9. ``Misprision of felony'' refers to the conduct of one who, having
knowledge of the actual commission of a felony, conceals and does not as
soon as possible make known the same to some judge or other person in
civil or military authority. The ``concealment'' described above
requires an act of commission (e.g., making a false statement to a law
enforcement officer).
10. ``Murder'' refers to the unlawful killing of a human being with
malice aforethought. ``With malice aforethought'' generally refers to a
finding that the offender formed an intent to kill or do serious bodily
harm to the victim without just cause or provocation.
11. ``Opiate'' includes heroin, morphine, opiate derivatives, and
synthetic opiate substitutes.
12. ``Other illicit drug offenses'' include, but are not limited to,
offenses involving the following: amphetamines, hallucinogens,
barbiturates, methamphetamines, and phencyclidine (PCP).
13. ``Other medium of exchange'' includes, but is not limited to,
postage stamps, governmental money orders, or governmental coupons
redeemable for cash or goods.
14. ``Peripheral role'' in drug offenses refers to conduct such as
that of a person hired as a deckhand on a marijuana boat, a person hired
to help offload marijuana, a person with no special skills hired as a
simple courier of drugs on a commerical airline flight, or a person
hired as a chauffeur in a drug transaction. This definition does not
include persons with decision-making or supervisory authority, persons
with relevant special skills (e.g., a boat captain, chemist, or airplane
pilot), or persons who finance such operations. Individuals who
transport unusually large amounts of drugs (e.g., 50 kilos of cocaine or
more) or who otherwise appear to have a high degree of trust,
professionalism, or control will be considered to be ``transporters''
and not ``simple couriers.''
15. ``Protected person'' refers to a person listed in 18 U.S.C. 351
(relating to Members of Congress), 1116 (relating to foreign officials,
official guests, and internationally protected persons), or 1751
(relating to presidential assassination and officials in line of
succession).
16. ``Serious bodily injury'' refers to injury creating a
substantial risk of death, major disability or loss of a bodily
function, or disfigurement.
17. ``Serious bodily injury is the result intended'' refers to a
limited category of offense behaviors where the circumstances indicate
that the bodily injury intended was serious (e.g., throwing acid in a
person's face, or firing a weapon at a person) but where it is not
established that murder was the intended object. Where the circumstances
establish that murder was the intended object, grade as an `attempt to
murder'.
18. ``Sexual exploitation of children'' refers to employing, using,
inducing, enticing, or coercing a person less than 18 years of age to
engage in any sexually explicit conduct for the purpose of producing a
visual or print medium depicting such conduct with knowledge or reason
to know that such visual or print medium will be distributed for sale,
transported in interstate or foreign commerce, or mailed. It also
includes knowingly transporting, shipping, or receiving such visual or
print medium for the purposes of distributing for sale, or knowingly
distribution for sale such visual or print medium.
19. ``Trafficking in stolen property'' refers to receiving stolen
property with intent to sell.
20. The ``value of the property'' is determined by estimating the
actual or potential replacement cost to the victim. The ``actual
replacement cost'' is the value or money permanently lost to the victim
through theft/forgery/fraud. The ``potential replacement cost'' refers
to the total loss the offender specifically intended to cause by theft/
forgery/fraud, or the total amount of the victim's money or property
unlawfully exposed
[[Page 122]]
to risk of loss through theft/forgery/fraud notwithstanding subsequent
recovery by the victim. The highest of these three values is the value
to be used in rating the offense on the guidelines.
21. ``Voluntary manslaughter'' refers to the unlawful killing of a
human being without malice upon a sudden quarrel or heat of passion.''
SALIENT FACTOR SCORING MANUAL
The following instructions serve as a guide in computing the salient
factor score.
ITEM A. PRIOR CONVICTIONS/ADJUDICATIONS (ADULT OR JUVENILE) [[None = 3;
One = 2; Two or three = 1; Four or more. . . . = 0]]
A.1 In General. Count all convictions/adjudications (adult or
juvenile) for criminal offenses (other than the current offense) that
were committed prior to the present period of confinement, except as
specifically noted. Convictions for prior offenses that are charged or
adjudicated together (e.g., three burglaries) are counted as a single
prior conviction, except when such offenses are separated by an
intervening arrest (e.g., three convictions for larceny and a conviction
for an additional larceny committed after the arrest for the first three
larcenies would be counted as two prior convictions, even if all four
offenses were adjudicated together). Do not count the current federal
offense or state/local convictions resulting from the current federal
offense (i.e., offenses that are considered in assessing the severity of
the current offense). Exception: Where the first and last overt acts of
the current offense behavior are separated by an intervening federal
conviction (e.g., after conviction for the current federal offense, the
offender commits another federal offense while on appeal bond), both
offenses are counted in assessing offense severity; the earlier offense
is also counted as a prior conviction in the salient factor score.
A.2 Convictions. (a) Felony convictions are counted. Non-felony
convictions are counted, except as listed under (b) and (c). Convictions
for driving while intoxicated/while under the influence/while impaired,
or leaving the scene of an accident involving injury or an attended
vehicle are counted. For the purpose of scoring Item A of the salient
factor score, use the offense of conviction.
(b) Convictions for the following offenses are counted only if the
sentence resulting was a commitment of more than thirty days (as defined
in item B) or probation of one year or more (as defined in Item E), or
if the record indicates that the offense was classified by the
jurisdiction as a felony (regardless of sentence):
1. Contempt of court;
2. Disorderly conduct/disorderly person/breach of the peace/
disturbing the peace/uttering loud and abusive language;
3. Driving without a license/with a revoked or suspended license/
with a false license;
4. False information to a police officer;
5. Fish and game violations;
6. Gambling (e.g., betting on dice, sports, cards) [Note: Operation
or promotion of or employment in an unlawful gambling business is not
included herein];
7. Loitering;
8. Non-support;
9. Prostitution;
10. Resisting arrest/evade and elude;
11. Trespassing;
12. Reckless driving;
13. Hindering/failure to obey a police officer;
14. Leaving the scene of an accident (except as listed under (a)).
(c) Convictions for certain minor offenses are not counted,
regardless of sentence. These include:
1. Hitchhiking;
2. Local regulatory violations;
3. Public intoxication/possession of alcohol by a minor/possession
of alcohol in an open container;
4. Traffic violations (except as specifically listed);
5. Vagrancy/vagabond and rogue;
6. Civil contempt.
A.3 Juvenile Conduct. Count juvenile convictions/adjudications
except as follows:
(a) Do not count any status offense (e.g., runaway, truancy,
habitual disobedience) unless the behavior included a criminal offense
which would otherwise be counted;
(b) Do not count any criminal offense committed at age 15 or less,
unless it resulted in a commitment of more than 30 days.
A.4 Military Conduct. Count military convictions by general or
special court-martial (not summary court-maritial or Article 15
disciplinary proceeding) for acts that are generally prohibited by
civilian criminal law (e.g., assault, theft). Do not count convictions
for strictly military offenses. Note: This does not preclude
consideration of serious or repeated military misconduct as a negative
indicant of parole prognosis (i.e., a possible reason for overriding the
salient factor score in relation to this item).
A.5 Diversion. Conduct resulting in diversion from the judicial
process without a finding of guilt (e.g., deferred prosecution,
probation without plea) is not to be counted in scoring this item.
However, behavior resulting in a judicial determination of guilt or an
admission of guilt before a judicial body shall be counted as a
conviction even if a conviction is not formally entered.
A.6 Setting Aside of Convictions/Restoration of Civil Rights
Setting aside or removal
[[Page 123]]
of juvenile convictions/adjudications is normally for civil purposes (to
remove civil penalties and stigma). Such convictions/adjudications are
to be counted for purposes of assessing parole prognosis. This also
applies to adult convictions/adjudications which may be set aside by
various methods (including pardon). However, convictions/adjudications
that were set aside or pardoned on grounds of innocence are not to be
counted.
A.7 Convictions Reversed or Vacated on Grounds of Constitutional or
Procedural Error. Exclude any conviction reversed or vacated for
constitutional or procedural grounds, unless the prisoner has been
retried and reconvicted. It is the Commission's presumption that a
conviction/adjudication is valid, except under the limited circumstances
described in the first note below. If a prisoner challenges such
conviction he/she should be advised to petition for a reversal of such
conviction in the court in which he/she was originally tried, and then
to provide the Commission with evidence of such reversal. Note:
Occasionally the presentence report documents facts clearly indicating
that a conviction was unconstitutional for deprivation of counsel [this
occurs only when the conviction was for a felony, or for a lesser
offense for which imprisonment was actually imposed; and the record is
clear that the defendant (1) was indigent, and (2) was not provided
counsel, and (3) did not waive counsel]. In such case, do not count the
conviction. Similarly, do not count a conviction if: (1) the offender
has petitioned the appropriate court to overturn a felony conviction
that occurred prior to 1964, or a misdemeanor/petty offense conviction
that occurred prior to 1973 (and the offender claims he served a jail
sentence for the non-felony conviction); (2) the offender asserts he was
denied his right to counsel in the prior conviction; and (3) the
offender provides evidence (e.g., a letter from the court clerk) that
the records of the prior conviction are unavailable. Note: If a
conviction found to be invalid is nonetheless supported by persuasive
information that the offender committed the criminal act, this
information may be considered as a negative indicant of parole prognosis
(i.e., a possible reason for overriding the salient factor score).
A.8 Ancient Prior Record. If both of the following conditions are
met: (1) The offender's only countable convictions under Item A occurred
at least ten years prior to the commencement of the current offense
behavior (the date of the last countable conviction under Item A refers
to the date of the conviction, itself, not the date of the offense
leading to conviction), and (2) there is at least a ten year commitment
free period in the community (including time on probation or parole)
between the last release from a countable commitment (under Item B) and
the commencement of the current offense behavior; then convictions/
commitments prior to the above ten year period are not to be counted for
purposes of Item A, B, or C. Note: This provision does not preclude
consideration of earlier behavior (e.g., repetition of particularly
serious or assaultive conduct) as a negative indicant of parole
prognosis (i.e., a possible reason for overriding the salient factor
score). Similarly, a substantial crime free period in the community, not
amounting to ten years, may, in light of other factors, indicate that
the offender belongs in a better risk category than the salient factor
score indicates.
A.9 Foreign Convictions. Foreign convictions (for behavior that
would be criminal in the United States) are counted.
A.10 Tribal Court Convictions. Tribal court convictions are counted
under the same terms and conditions as any other conviction.
A.11 Forfeiture of Collateral. If the only known disposition is
forfeiture of collateral, count as a conviction (if a conviction for
such offense would otherwise be counted).
A.12 Conditional/Unconditional Discharge (New York State). In N.Y.
State, the term ``conditional discharge'' refers to a conviction with a
suspended sentence and unsupervised probation; the term ``unconditional
discharge'' refers to a conviction with a suspended sentence. Thus, such
N.Y. State dispositions for countable offenses are counted as
convictions.
A.13 Adjudication Withheld (Florida). In Florida, the term
``adjudication withheld'' refers to a disposition in which a formal
conviction is not entered at the time of sentencing, the purpose of
which is to allow the defendant to retain his civil rights and not to be
classified as a convicted felon. Since the disposition of adjudication
withheld is characterized by an admission of guilt and/or a finding of
guilt before a judicial body, dispositions of ``adjudication withheld''
are to be counted as convictions for salient factor scoring purposes.
However, it is not considered a conviction on which forfeiture of street
time can be based.
ITEM B. PRIOR COMMITMENTS OF MORE THAN THIRTY DAYS (ADULT OR JUVENILE)
[[None=-2; One or two=1; Three or more=0]]
B.1 Count all prior commitments of more than thirty days (adult or
juvenile) resulting from a conviction/adjudication listed under Item A,
except as noted below. Also count commitments of more than thirty days
imposed upon revocation of probation or parole where the original
probation or parole resulted from a conviction/adjudication counted
under Item A.
B.2 Count only commitments that were imposed prior to the
commission of the last overt act of the current offense behavior.
[[Page 124]]
Commitments imposed after the current offense are not counted for
purposes of this item. Concurrent or consecutive sentences (whether
imposed as the same time or at different times) that result in a
continuous period of confinement count as a single commitment. However,
a new court commitment of more than thirty days imposed for an escape/
attempted escape or for criminal behavior committed while in
confinement/escape status counts as a separate commitment.
B.3 Definitions. (a) This item only includes commitments that were
actually imposed. Do not count a suspended sentence as a commitment. Do
not count confinement pending trial or sentencing or for study and
observation as a commitment unless the sentence is specifically to
``time served''. If a sentence imposed is subsequently reconsidered and
reduced, do not count as a commitment if it is determined that the total
time served, including jail time, was 30 days or less. Count a sentence
to intermittent confinement (e.g., weekends) totalling more than 30
days.
(b) This item includes confinement in adult or juvenile
institutions, and residential treatment centers. It does not include
foster home placement. Count confinement in a community treatment center
when part of a committed sentence. Do not count confinement in a CTC
when imposed as a condition of probation or parole. Do not count self-
commitment for drug or alcohol treatment.
(c) If a committed sentence of more then thirty days is imposed
prior to the current offense but the offender avoids or delays service
of the sentence (e.g., by absconding, escaping, bail pending appeal),
count as a prior commitment. Note: Where the subject unlawfully avoids
service of a prior commitment by escaping or failing to appear for
service of sentence, this commitment is also to be considered in Items D
and E. Example: An offender is sentenced to a term of three years
confinement, released on appeal bond, and commits the current offense.
Count as a previous commitment under Item B, but not under Items D and
E. To be considered under Items D and E, the avoidance of sentence must
have been unlawful (e.g., escape or failure to report for service or
sentence).
ITEM C. AGE AT COMMENCEMENT OF THE CURRENT OFFENSE/PRIOR COMMITMENTS OF
MORE THAN THIRTY DAYS (ADULT OR JUVENILE)
C.1 If the subject was 26 years of age or more at the commencement
of the current offense and has 3 or fewer prior commitments, score 3; if
four prior commitments, score 2; if five or more prior commitments,
score 1.
C.2 If the subject was 22-25 years of age at the commencement of
the current offense and has three or fewer prior commitments, score 2;
if four prior commitments, score 1; if five or more prior commitments,
score 0.
C.3 If the subject was 20-21 years of age at the commencement of
the current offense and has three or fewer prior commitments, score 1;
if four or more prior commitments, score 0.
C.4 If the subject was 19 years of age or less at the commencement
of the current offense, score 0.
C.5 Definitions (a) Use the age of the commencement of the
subject's current offense behavior, except as noted under the special
instructions for probation/parole/confinement/escape status violators.
(b) Prior commitment is defined under Item B.
ITEM D. RECENT COMMITMENT FREE PERIOD (THREE YEARS)
D.1 Score 1 if the subject has no prior commitments; or if the
subject was released to the community from his/her last prior commitment
at least three years prior to commencement of his/her current offense
behavior.
D.2 Score 0 if the subject's last release to the community from a
prior commitment occurred less than three years prior to the current
offense behavior; or if the subject was in confinement/escape status at
the time of the current offense.
D.3 Definitions. (a) Prior commitment is defined under Item B.
(b) Confinement/escape status is defined under Item E.
(c) Release to the community means release from confinement status
(e.g., a person paroled through a CTC is released to the community when
released from the CTC, not when placed in the CTC).
ITEM E. PROBATION/PAROLE/CONFINEMENT/ESCAPE STATUS VIOLATOR THIS TIME
E.1 Score 1 if the subject was not on probation or parole, nor in
confinement or escape status at the time of the current offense
behavior; and was not committed as a probation, parole, confinement, or
escape status violator this time.
E.2 Score 0 if the subject was on probation or parole or in
confinement or escape status at the time of the current offense
behavior; or if the subject was committed as a probation, parole,
confinement, or escape status violator this time.
E.3 Definitions. (a) The term probation/parole refers to a period
of federal, state, or local probation or parole supervision.
Occasionally, a court disposition such as `summary probation' or
`unsupervised probation' will be encountered. If it is clear that this
disposition involved no attempt at supervision, it will not be counted
for purposes of this item. Note: Unsupervised probation/parole due to
deportation is counted in scoring this item.
[[Page 125]]
(b) The term `parole' includes parole, mandatory parole, conditional
release, or mandatory release supervision (i.e., any form of supervised
release).
(c) The term `confinement/escape status' includes institutional
custody, work or study release, pass or furlough, community treatment
center confinement, or escape from any of the above.
ITEM F. OLDER OFFENDERS
G.1 Score 1 if the offender was 41 years of age or more at the
commencement of the current offense and the total score from Items A-F
is 9 or less.
G.2 Score 0 if the offender was less than 41 years of age at the
commencement of the current offense or if the total score from Items A-F
is 10.
Special Instructions--Federal Probation Violators
Item A Count the original federal offense as a prior conviction. Do
not count the conduct leading to probation revocation as a prior
conviction.
Item B Count all prior commitments of more than thirty days which
were imposed prior to the behavior resulting in the current probation
revocation. If the subject is committed as a probation violator
following a `split sentence' for which more than thirty days were
served, count the confinement portion of the `split sentence' as a prior
commitment. Note: The prisoner is still credited with the time served
toward the current commitment.
Item C Use the age at commencement of the probation violation, not
the original offense.
Item D Count backwards three years from the commencement of the
probation violation.
Item E By definition, no point is credited for this item.
Exception: A case placed on unsupervised probation (other than for
deportation) would not lose credit for this item.
Item F No special instructions.
Item G Use the age at commencement of the probation violation, not
the original offense.
Special Instructions--Federal Parole Violators
Item A The conviction from which paroled counts as a prior
conviction.
Item B The commitment from which paroled counts as a prior
commitment.
Item C Use the age at commencement of the new criminal behavior/
parole violation behavior.
Item D Count backwards three years from the commencement of the new
criminal behavior/parole violation behavior.
Item E By definition, no point is credited for this item.
Item F No special instructions.
Item G Use the age at commencement of the new criminal/parole
violation behavior.
Special Instructions--Federal Confinement/Escape Status Violators With
New Criminal Behavior in the Community
Item A The conviction being served at the time of the confinement/
escape status violation counts as a prior conviction.
Item B The commitment being served at the time of the confinement/
escape status violation counts as a prior commitment.
Item C Use the age at commencement of the confinement/escape status
violation.
Item D By definition, no point is credited for this item.
Item E By definition, no point is credited for this item.
Item F No special instructions.
Item G Use the age at commencement of the confinement/escape status
violation.
(18 U.S.C. 4203(a)(1); 18 U.S.C. 4204(a)(6))
[47 FR 56336, Dec. 16, 1982]
Editorial Note: For Federal Register citations affecting Sec. 2.20,
see the List of CFR Sections Affected, which appears in the Finding Aids
section of the printed volume and on GPO Access.
Sec. 2.21 Reparole consideration guidelines.
(a)(1) If revocation is based upon administrative violation(s) only,
grade the behavior as if a Category One offense under Sec. 2.20.
(2) If a finding is made that the prisoner has engaged in behavior
constituting new criminal conduct, the appropriate severity rating for
the new criminal behavior shall be calculated. New criminal conduct may
be determined either by a new federal, state, or local conviction or by
an independent finding by the Commission at revocation hearing. As
violations may be for state or local offenses, the appropriate severity
level may be determined by analogy with listed federal offense
behaviors.
(b) The guidelines for parole consideration specified at 28 CFR 2.20
shall then be applied with the salient factor score recalculated. The
conviction and commitment from which the offender was released shall be
counted as a prior conviction and commitment.
(c) Time served on a new state or federal sentence shall be counted
as time in custody for reparole guideline purposes. This does not affect
the computation of the expiration date of the
[[Page 126]]
violator term as provided by Secs. 2.47(d) and 2.52 (c) and (d).
(d) The above are merely guidelines. A decision outside these
guidelines (either above or below) may be made when circumstances
warrant.
[50 FR 40368, Oct. 3, 1985]
Sec. 2.22 Communication with the Commission.
Attorneys, relatives, or interested parties wishing a personal
interview to discuss a specific case with a representative of the
Commission must submit a written request to the appropriate office
setting forth the nature of the information to be discussed. Such
interview may be conducted by a Commissioner or assigned staff, and a
written summary of each such interview shall be prepared and placed in
the prisoner's file.
[43 FR 22707, May 28, 1978]
Sec. 2.23 Delegation to hearing examiners.
(a) There is hereby delegated to hearing examiners the authority
necessary to conduct hearings and to make recommendations relative to
the grant or denial of parole or reparole, revocation or reinstatement
of parole or mandatory release, and conditions of parole. Any hearing
may be conducted by a single examiner or by a panel of examiners. A
Executive Hearing Examiner shall function as a hearing examiner for the
purpose of obtaining a panel recommendation whenever the Regional
Commissioner has not ordered that a hearing be conducted by a panel of
two examiners. Notwithstanding the provisions of Secs. 2.48 through
2.51, Secs. 2.101 through 2.104, and Secs. 2.214 through 2.217, there is
also delegated to hearing examiners the authority necessary to make a
probable cause finding, to determine the location of a revocation
hearing, and to determine the witnesses who will attend the hearing,
including the authority to issue subpoenas for witnesses and evidence.
(b) The concurrence of two hearing examiners, or of a hearing
examiner and the Executive Hearing Examiner, shall be required to obtain
a panel recommendation to the Regional Commissioner. A panel
recommendation is required in each case decided by a Regional
Commissioner after the holding of a hearing.
(c) An examiner panel recommendation consists of two concurring
examiner votes. In the event of divergent votes, the case shall be
referred to another hearing examiner (or to the Executive Hearing
Examiner in the case of a hearing conducted by a panel of examiners) for
another vote. If concurring votes do not result from such a referral,
the case shall be referred to any available hearing examiner until a
panel recommendation is obtained.
(d) A recommendation of a hearing examiner panel shall become an
effective Commission decision only upon the Regional Commissioner's
approval, and docketing at the regional office.
[44 FR 3408, Jan. 16, 1979, as amended at 45 FR 84052, Dec. 12, 1980; 59
FR 45625, Sept. 2, 1994; 60 FR 51349, Oct. 2, 1995; 66 FR 51302, Oct. 9,
2001]
Sec. 2.24 Review of panel recommendation by the Regional Commissioner.
(a) A Regional Commissioner may review the recommendation of any
examiner panel and refer this recommendation, prior to written
notification to the prisoner, with his recommendation and vote to the
National Commissioners for consideration and any action deemed
appropriate. Written notice of this referral action shall be mailed or
transmitted to the prisoner within twenty-one days of the date of the
hearing. The Regional Commissioner and each National Commissioner shall
have one vote and decisions shall be based upon the concurrence of two
votes. Action shall be taken by the National Commissioners within thirty
days of the date of referral action by the Regional Commissioner, except
in emergencies.
(b) Notwithstanding the provisions of paragraph (a) of this section,
a Regional Commissioner may:
(1) On his own motion, modify or reverse the recommendation of a
hearing examiner panel that is outside the guidelines to bring the
decision closer to (or to) the nearer limit of the appropriate guideline
range; or
(2) On his own motion, modify the recommendation of a hearing
examiner panel to bring the decision to a date
[[Page 127]]
not to exceed six months from the date recommended by the examiner
panel;
(3) Return the case to the institution for a rehearing, provided
that a notice of action is sent to the prisoner specifying the purpose
of the rehearing;
(4) Designate the case for the original jurisdiction of the
Commission pursuant to Sec. 2.17.
[42 FR 39809, Aug. 5, 1977, as amended at 45 FR 84053, Dec. 22, 1980; 46
FR 35639, July 10, 1981]
Sec. 2.25 [Reserved]
Sec. 2.26 Appeal to National Appeals Board.
(a) A prisoner or parolee may submit to the National Appeals Board a
written appeal of any decision to grant (other than a decision to grant
parole on the date of parole eligibility), rescind, deny, or revoke
parole, except that any appeal of a Commission decision pursuant to
Sec. 2.17 shall be pursuant to Sec. 2.27. This appeal must be filed on a
form provided for that purpose within thirty days from the date of entry
of such decision. No exhibits are to be attached to an administrative
appeal unless the documents therein contain new information and
materials not already in the possession of the Commission. Any submitted
exhibits which are copies of material already in the Commission's files
will not be retained by the Commission.
(b)(1) The National Appeals Board may: Affirm the decision of a
Regional Commissioner on the vote of a single Commissioner other than
the Commissioner who issued the decision from which the appeal is taken;
or modify or reverse the decision of a Regional Commissioner, or order a
new hearing, upon the concurrence of two Commissioners. The Commissioner
first reviewing the case may in his discretion circulate the case for
review and vote by the other Commissioners notwithstanding his own vote
to affirm the Regional Commissioner's decision. In such event, the case
shall be decided by the concurrence of two out of three votes.
(2) All Commissioners serve as members of the National Appeals
Board, and it shall in no case be an objection to a decision of the
Board that the Commissioner who issued the decision from which an appeal
is taken participated as a voting member on appeal.
(c) The National Appeals Board shall act within sixty days of
receipt of the appellant's papers, to affirm, modify, or reverse the
decision. Decisions of the National Appeals Board shall be final.
(d) If no appeal is filed within thirty days of the date of entry of
the original decision, such decision shall stand as the final decision
of the Commission.
(e) Appeals under this section may be based upon the following
grounds:
(1) That the guidelines were incorrectly applied as to any or all of
the following:
(i) Severity rating;
(ii) Salient factor score;
(iii) Time in custody;
(2) That a decision outside the guidelines was not supported by the
reasons or facts as stated;
(3) That especially mitigating circumstances (for example, facts
relating to the severity of the offense or the prisoner's probability of
success on parole) justify a different decision;
(4) That a decision was based on erroneous information, and the
actual facts justify a different decision;
(5) That the Commission did not follow correct procedure in deciding
the case, and a different decision would have resulted if the error had
not occurred;
(6) There was significant information in existence but not known at
the time of the hearing;
(7) There are compelling reasons why a more lenient decision should
be rendered on grounds of compassion.
(f) Upon the written request of the Attorney General seeking review
of a decision of a Regional Commissioner, which is received within 30
days of such decision, the National Appeals Board shall reaffirm,
modify, or reverse the Regional Commissioner's decision within 60 days
of receipt of the Attorney General's request. The National Appeals Board
shall inform the Attorney General and the prisoner to whom the decision
applies in writing of its decision and the reasons therefor. In the
event the Attorney General submits new and significant information that
has not previously been disclosed to the prisoner prior to a hearing
under
[[Page 128]]
these rules, the National Appeals Board shall act within 60 days to
reaffirm, modify or reverse the Regional Commissioner's decision, but
shall also remand the case for a new hearing if its decision is adverse
to the prisoner. The prisoner shall have disclosure of the new
information, and the opportunity to dispute that information under
Sec. 2.19(c) of this part. Following the hearing, the case shall be
returned to the National Appeals Board, together with a recommendation
from the hearing examiner, to render a final Commission decision as to
the disposition of the case.
[49 FR 44098, Nov. 2, 1984, as amended at 51 FR 32785, Sept. 16, 1986;
59 FR 40258, Aug. 8, 1994; 61 FR 55743, Oct. 29, 1996]
Sec. 2.27 Petition for reconsideration of original jurisdiction decisions.
(a) A petition for reconsideration may be filed with the Commission
in cases decided under the procedure specified in Sec. 2.17 within
thirty days of the date of such decision. A form is provided for this
purpose. A petition for reconsideration will be reviewed at the next
regularly scheduled meeting of the Commission provided the petition is
received thirty days in advance of such meeting. Petitions received by
the Commission less than thirty days in advance of a regularly scheduled
meeting will be reviewed at the next regularly scheduled meeting. The
concurrence of two Commissioners shall be required to modify or reverse
the decision for which reconsideration is sought. If such concurrence is
not obtained, the previous decision shall stand. A decision under this
rule shall be final.
(b) Attorneys, relatives, and other interested parties who wish to
submit written information concerning a petition for reconsideration
should send such information to the National Appeals Board, United
States Parole Commission, 5550 Friendship Boulevard, Chevy Chase,
Maryland 20815. Petitions and all supporting material are to be
submitted thirty days in advance of the meeting at which such petitions
will be considered.
(c) If no petition for reconsideration is filed within 30 days of
the entry of a decision under Sec. 2.17, that decision shall stand as
the final decision of the Commission.
[61 FR 13763, Mar. 28, 1996, as amended at 61 FR 55743, Oct. 29, 1996]
Sec. 2.28 Reopening of cases.
(a) Favorable information. Notwithstanding the appeal procedures of
Sec. 2.26, the appropriate Regional Commissioner may, on his own motion,
reopen a case at any time upon the receipt of new information of
substantial significance favorable to the prisoner. The Regional
Commissioner may then order a new institutional hearing on the next
docket, or reverse or modify the decision. The following actions require
the concurrence of two out of three Commissioners:
(1) Any modification resulting in a reduction of more than 180 days
(other than a modification that brings a decision from above the
appropriate guideline range closer to, or to, the nearer limit of the
appropriate guideline range);
(2) Any modification resulting in a decision below the appropriate
guideline range;
(3) Reversal of a decision (i.e., any modification of a fifteen-year
reconsideration hearing decision to a presumptive or effective parole
date). Decisions requiring a second or additional vote shall be referred
to the National Commissioners under the procedures of 28 CFR 2.24(a).
Original jurisdiction cases may be reopened upon the motion of the
appropriate Regional Commissioner under the procedures of Sec. 2.17.
(b) Institutional misconduct. Consideration of disciplinary
infractions and allegations of new criminal conduct occurring after the
setting of a parole date are subject to the provisions of Sec. 2.14 (in
the case of a prisoner with a presumptive date) and Sec. 2.34 (in the
case of a prisoner with an effective date of parole).
(c) Additional sentences. If a prisoner receives an additional
concurrent or consecutive federal sentence following his initial parole
consideration, the Regional Commissioner shall reopen his case for a new
initial hearing on the next regularly scheduled docket to consider the
additional sentence and reevaluate the case. Such action shall
[[Page 129]]
void the previous presumptive or effective release date. However, a new
initial hearing is not mandatory where the Commission has previously
evaluated the new criminal behavior, which led to the additional federal
sentence, at a rescission hearing under 28 CFR 2.34; except where the
new sentence extends the mandatory release date for a prisoner
previously continued to the expiration of his sentence.
(d) Conviction after revocation. Upon receipt of information
subsequent to the revocation hearing that a prisoner whose parole has
been revoked has sustained a new conviction for conduct while on parole,
the Regional Commissioner may reopen the case pursuant to
Sec. 2.52(c)(2) for a special reconsideration hearing on the next
regularly scheduled docket to consider forfeiture of time spent on
parole and such further action as may be appropriate. The entry of a new
order shall void any presumptive or effective release date previously
established.
(e) Release planning. When an effective date of parole has been set
by the Commission, release on that date shall be conditioned upon the
completion of a satisfactory plan for parole supervision. The
appropriate Regional Commissioner may on his own motion reconsider any
case prior to release and may reopen and advance or retard an effective
parole date for purposes of release planning. Retardation without a
hearing may not exceed 120 days.
(f) New adverse information. Upon receipt of new and significant
adverse information that is not covered by paragraphs (a) through (e) of
this section, a Commissioner may refer the case to the National
Commissioners with his recommendation and vote to schedule the case for
a special reconsideration hearing. Such referral shall automatically
retard the prisoner's scheduled release date until a final decision is
reached in the case. The decision to schedule a case for a special
reconsideration hearing shall be based on the concurrence of two
Commissioner votes, including the vote of the referring Commissioner.
The hearing shall be conducted in accordance with the procedures set
forth in Secs. 2.12 and 2.13. The entry of a new order following such
hearing shall void the previously established release date.
[44 FR 3406, Jan. 16, 1979, as amended at 46 FR 36138, July 14, 1981; 49
FR 44098, Nov. 2, 1984; 61 FR 55743, Oct. 29, 1996]
Sec. 2.29 Release on parole.
(a) A grant of parole shall not be deemed to be operative until a
certificate of parole has been delivered to the prisoner.
(b) An effective date of parole shall not be set for a date more
than nine months from the date of the hearing. Residence in a Community
Treatment Center as part of a parole release plan generally shall not
exceed one hundred and twenty days.
(c) When an effective date of parole falls on a Saturday, Sunday, or
legal holiday, the Warden of the appropriate institution shall be
authorized to release the prisoner on the first working day preceding
such date.
[42 FR 39809, Aug. 5, 1977, as amended at 44 FR 3407, Jan. 16, 1979; 60
FR 51350, Oct. 2, 1995]
Sec. 2.30 False information or new criminal conduct: Discovery after release.
If evidence comes to the attention of the Commission after a
prisoner's release that such prisoner has willfully provided false
information or misrepresented information deemed significant to his
application for parole or has engaged in any criminal conduct during the
current sentence prior to the delivery of the parole certificate, the
Regional Commissioner may reopen the case pursuant to the procedures of
Sec. 2.28(f) and order the prisoner summoned or retaken for hearing
pursuant to the procedures of Secs. 2.49 and 2.50, as applicable, to
determine whether the order of parole should be cancelled.
[47 FR 36635, Aug. 23, 1982]
Sec. 2.31 Parole to detainers: Statement of policy.
(a) Where a detainer is lodged against a prisoner, the Commission
may grant parole if the prisoner in other respects meets the criteria
set forth in Sec. 2.18. The presence of a detainer is not in itself a
valid reason for the denial of parole.
[[Page 130]]
(b) The Commission will cooperate in working out arrangements for
concurrent supervision with other jurisdictions where it is feasible and
where release on parole appears to be justified.
Sec. 2.32 Parole to local or immigration detainers.
(a) When a State or local detainer is outstanding against a prisoner
whom the Commission wishes to parole, the Commission may order either of
the following:
(1) Parole to the actual physical custody of the detaining
authorities only. In this event, release is not to be effected except to
the detainer. When such a detainer is withdrawn, the prisoner is not to
be released unless and until the Commission makes a new order of parole.
(2) Parole to the actual physical custody of the detaining
authorities or an approved plan. In this event, release is to be
effected to the community if detaining officials withdraw the detainer
or make no effort to assume custody of the prisoner, providing there is
an acceptable plan for community supervision.
(b) When the Commission wishes to parole a prisoner subject to a
detainer filed by Federal immigration officials, the Commission shall
order the following: Parole to the actual physical custody of the
immigration authorities or an approved plan. In this event, release is
to be effected regardless of whether immigration officials take the
prisoner into custody, providing there is an acceptable plan for
community supervision.
(c) As used in this section ``parole to a detainer'' means release
to the ``physical custody'' of the authorities who have lodged the
detainer. Temporary detention in a jail in the county where the
institution of confinement is located does not constitute release on
parole to such detainer. If the authorities who lodged the detainer do
not take the prisoner into custody for any reason, he shall be returned
to the institution to await further order of the Commission.
[43 FR 38822, Aug. 31, 1978, as amended at 44 FR 3409, Jan. 16, 1979; 44
FR 31637, June 1, 1979; 44 FR 34494, June 15, 1979; 47 FR 36635, Aug.
23, 1982]
Sec. 2.33 Release plans.
(a) A grant of parole is conditioned upon the approval of release
plans by the Regional Commissioner. In general, the following factors
are considered as elements in the prisoner's release plan:
(1) Availability of legitimate employment and an approved residence
for the prospective parolee; and
(2) Availability of necessary aftercare for a parolee who is ill or
who requires special care.
(b) Generally, parolees will be released only to the place of their
legal residence unless the Commission is satisfied that another place of
residence will serve the public interest more effectively or will
improve the probability of the applicant's readjustment.
(c) Where the circumstances warrant, the Commission on its own
motion, or upon recommendation of the probation officer, may require
that an adviser who is a responsible, reputable, and law-abiding citizen
living in or near the community in which the releasee will reside be
available to the releasee. Such advisor shall serve under the direction
of and in cooperation with the probation officer to whom the parolee is
assigned.
(d) When the prisoner has an unsatisfied fine or restitution order,
a reasonable plan for payment [or performance of services, if so ordered
by the court] shall, where feasible, be included in the parole release
plan.
[42 FR 39809, Aug. 5, 1977; 42 FR 44234, Sept. 2, 1977, as amended at 50
FR 36422, Sept. 6, 1985]
Sec. 2.34 Rescission of parole.
(a) When an effective date of parole has been set by the Commission,
release on that date is conditioned upon continued satisfactory conduct
by the prisoner. If a prisoner granted such a date has been found in
violation of institution rules by a disciplinary hearing officer or is
alleged to have committed a new criminal act at any time prior to the
delivery of the certificate of parole, the Regional Commissioner shall
be advised promptly of such information. The prisoner shall not be
released until the institution has been notified that no change has been
made in the Commission's order to parole.
[[Page 131]]
Following receipt of such information, the Regional Commissioner may
reopen the case and retard the parole date for up to 90 days without a
hearing, or schedule a rescission hearing under this section on the next
available docket at the institution or on the first docket following
return to a federal institution from a Community Treatment Center or a
state or local halfway house.
(b) Upon the ordering of a rescission hearing under this section,
the prisoner shall be afforded written notice specifying the information
to be considered at the hearing. The notice shall further state that the
purpose of the hearing will be to decide whether rescission of the
parole date is warranted based on the charges listed on the notice, and
shall advise the prisoner of the procedural rights described below.
(c) A hearing before a disciplinary hearing officer resulting in a
finding that the prisoner has committed a violation of disciplinary
rules may be relied upon by the Commission as conclusive evidence of
institutional misconduct. However, the prisoner will be afforded an
opportunity to explain any mitigating circumstances, and to present
documentary evidence in mitigation of the misconduct at the rescission
hearing.
(d) In the case of allegations of new criminal conduct committed
prior to delivery of the parole certificate, the Commission may consider
documentary evidence and/or written testimony presented by the prisoner,
arresting authorities, or other persons.
(e) The prisoner may be represented at a rescission hearing by a
person of his choice. The function of the prisoner's representative
shall be to offer a statement following the discussion of the charges
with the prisoner, and to provide such additional information as the
examiner panel may require. However, the presiding hearing examiner may
limit or exclude any irrelevant or repetitious statement.
(f) The evidence upon which the rescission hearing is to be
conducted shall be disclosed to the prisoner upon request, subject to
the exemptions set forth at Sec. 2.55. If the parole grant is rescinded,
the Commission shall furnish to the prisoner a written statement of its
findings and the evidence relied upon.
[44 FR 3406, Jan. 16, 1979, as amended at 45 FR 59871, Sept. 11, 1980;
47 FR 2313, Jan. 15, 1982; 54 FR 15173, Apr. 17, 1989]
Sec. 2.35 Mandatory release in the absence of parole.
(a) A prisoner shall be mandatorily released by operation of law at
the end of the sentence imposed by the court less such good time
deductions as he may have earned through his behavior and efforts at the
institution of confinement. If released pursuant to 18 U.S.C. 4164, such
prisoner shall be released, as if on parole, under supervision until the
expiration of the maximum term or terms for which he was sentenced less
180 days. If released pursuant to 18 U.S.C. 4205(f), such prisoner shall
remain under supervision until the expiration of the maximum term or
terms for which he was sentenced. Insofar as possible, release plans
shall be completed before the release of any such prisoner.
(b) It is the Commission's interpretation of the statutory scheme
for parole and good time that the only function of good time credits is
to determine the point in a prisoner's sentence when, in the absence of
parole, the prisoner is to be conditionally released on supervision, as
described in subsection (a). Once an offender is conditionally released
from imprisonment, either by parole or mandatory release, the good time
earned during that period of imprisonment is of no further effect either
to shorten the period of supervision or to shorten the period of
imprisonment which the offender may be required to serve for violation
of parole or mandatory release.
(c) A prisoner committed under the Youth Corrections Act must be
initially released conditionally under supervision not later than two
years before the expiration of the term imposed by the court.
[42 FR 39809, Aug. 5, 1977, as amended at 50 FR 46283, Nov. 7, 1985]
Sec. 2.36 Rescission guidelines.
(a) The following guidelines shall apply to the sanctioning of
disciplinary infractions or new criminal conduct
[[Page 132]]
committed by a prisoner during any period of confinement that is
credited to his current sentence (whether before or after sentence is
imposed), but prior to his release on parole; and by a parole violator
during any period of confinement prior to or following the revocation of
his parole (except when such period of confinement has resulted from
initial parole to a detainer). These guidelines specify the customary
time to be served for such behavior which shall be added to the time
required by the original presumptive or effective date. Credit shall be
given towards service of these guidelines for any time spent in custody
on a new offense that has not been credited towards service of the
original presumptive or effective date. If a new concurrent or
consecutive sentence is imposed for such behavior, these guidelines
shall also be applied at the initial hearing on such term.
(1) Administrative rule infraction(s) (including alcohol abuse)
normally can be adequately sanctioned by postponing a presumptive or
effective date by 0-60 days per instance of misconduct, or by 0-8 months
in the case of use or simple possession of illicit drugs or refusal to
provide a urine sample. Escape or other new criminal conduct shall be
considered in accordance with the guidelines set forth below.
(2) Escape/new criminal behavior in a prison facility (including a
Community Treatment Center). The time required pursuant to the
guidelines set forth in paragraphs (a)(2) (i) and (ii) of this section
shall be added to the time required by the original presumptive or
effective date.
(i) Escape or attempted escape--(A) Escape or attempted escape,
except as listed below--8-16 months.
(B) If from non-secure custody with voluntary return in 6 days or
less--[lE] 6 months.
(C) If by fear or force applied to person(s), grade under (ii) but
not less than Category Five.
Notes: (1) If other criminal conduct is committed during the escape
or during time spent in escape status, then time to be served for the
escape/attempted escape shall be added to that assessed for the other
new criminal conduct.
(2) Time in escape status shall not be credited.
(3) Voluntary return is defined as returning voluntarily to the
facility or voluntarily turning one's self in to a law enforcement
authority as an escapee (not in connection with an arrest on other
charges).
(4) Non-secure custody refers to custody with no significant
physical restraint [e.g., walkaway from a work detail outside the
security perimeter of an institution; failure to return to any
institution from a pass or unescorted furlough; or escape by stealth
from an institution with no physical perimeter barrier (usually a camp
or community treatment center)].
(ii) Other new criminal behavior in a prison facility.
------------------------------------------------------------------------
Severity rating in the new criminal
behavior (from Sec. 2.20) Guideline range
------------------------------------------------------------------------
Category One............................. <<=8 months.
Category Two............................. <<=10 months.
Category Three........................... 12-16 months.
Category Four............................ 20-26 months.
Category Five............................ 36-48 months.
Category Six............................. 52-64 months.
Category Seven........................... 64-92 months.
Category Eight........................... 120+ months.
------------------------------------------------------------------------
Note: Grade unlawful possession of a firearm or explosives in a
prison facility, other than a community treatment center, as Category
Six. Grade unlawful possession of a firearm in a community treatment
center as Category Four. Grade unlawful possession of a dangerous weapon
other than a firearm or explosives (e.g., a knife) in a prison facility
or community treatment center as Category Three.
(3) New criminal behavior in the community (e.g., while on pass,
furlough, work release, or on escape). In such cases, the guidelines
applicable to reparole violators under Sec. 2.21 shall be applied, using
the new offense severity (from Sec. 2.20) and recalculated salient
factor score (such score shall be recalculated as if the prisoner had
been on parole at the time of the new criminal behavior). The time
required pursuant to these guidelines shall be added to the time
required by the original presumptive or effective date.
Note: Offenses committed in a prison or in a Community Treatment
Center that are not limited to the confines of the prison or Community
Treatment Center (e.g., mail fraud of a victim outside the prison) are
graded as new criminal behavior in the community.
(b) The above are merely guidelines. Where the circumstances
warrant, a decision outside the guidelines (above or below) may be
rendered provided
[[Page 133]]
specific reasons are given. For example, a substantial period of good
conduct since the last disciplinary infraction in cases not involving
new criminal conduct may be treated as a mitigating circumstance.
[45 FR 59871, Sept. 11, 1980, as amended at 51 FR 32072, Sept. 9, 1986;
52 FR 5763, Feb. 26, 1987; 52 FR 17399, May 8, 1987; 64 FR 59623, Nov.
3, 1999]
Sec. 2.37 Disclosure of information concerning parolees; Statement of policy.
(a) Information concerning a parolee under the Commission's
supervision may be disclosed to a person or persons who may be exposed
to harm through contact with that particular parolee if such disclosure
is deemed to be reasonably necessary to give notice that such danger
exists.
(b) Information concerning parolees may be released by a Chief U.S.
Probation Officer to a law enforcement agency (1) as deemed appropriate
for the protection of the public or the enforcement of the conditions of
parole or (2) pursuant to a request under 18 U.S.C. 4203(e).
(c) Information deemed to be ``public sector'' information may be
disclosed to third parties without the consent of the file subject.
Public sector information encompasses the following:
(1) Name;
(2) Register number;
(3) Offense of conviction;
(4) Past and current places of incarceration;
(5) Age;
(6) Sentence data on the Bureau of Prisons sentence computation
record (BP-5);
(7) Date(s) of parole and parole revocation hearings; and
(8) The decision(s) rendered by the Commission following a parole or
parole revocation proceeding, including the dates of continuances and
parole dates. An inmate's designated future place of incarceration is
not public information.
[47 FR 13521, Mar. 31, 1982, as amended at 52 FR 33408, Sept. 3, 1987;
63 FR 25772, May 11, 1998]
Sec. 2.38 Community supervision by U.S. Probation Officers.
(a) Pursuant to sections 3655 and 4203(b)(4) of title 18 of the U.S.
Code, U.S. Probation Officers shall provide such parole services as the
Commission may request. In conformity with the foregoing, probation
officers function as parole officers and provide supervision to persons
released by parole or as if on parole (mandatory release) under the
Commission's jurisdiction.
(b) A parolee may be transferred to a new district of supervision
with the permission of the probation officers of both the transferring
and receiving district, provided such transfer is not contrary to
instructions from the Commission.
[44 FR 3409, Jan. 16, 1979]
Sec. 2.39 Jurisdiction of the Commission.
(a) Jurisdiction of the Commission over a parolee shall terminate no
later than the date of expiration of the maximum term or terms for which
he was sentenced, except as provided by Sec. 2.35, Sec. 2.43, or
Sec. 2.52.
(b) The parole of any parolee shall run concurrently with the period
of parole or probation under any other Federal, State, or local
sentence.
(c) Upon the termination of jurisdiction, the Commission shall issue
a certificate of discharge to such parolee and to such other agencies as
it may determine.
[42 FR 39809, Aug. 5, 1977, as amended at 48 FR 22919, May 23, 1983]
Sec. 2.40 Conditions of release.
(a) The following conditions are attached to every grant of parole
and are deemed necessary to provide adequate supervision and to protect
the public welfare. They are printed on the certificates issued to each
parolee and mandatory releasee:
(1) The parolee shall go directly to the district named in the
certificate (unless released to the custody of other authorities).
Within three days after his arrival, he shall report to his parole
adviser, if he has one, and to the U.S. Probation Officer whose name
appears on the certificate. If in any emergency the parolee is unable to
get in touch with his parole adviser or his probation
[[Page 134]]
officer or his office, he shall communicate with the U.S. Parole
Commission, Chevy Chase, Maryland 20815-7286.
(2) If the parolee is released to the custody of other authorities,
and after release from the physical custody of such authorities, he is
unable to report to the U.S. Probation Officer to whom he is assigned
within three days, he shall report instead to the nearest U.S. Probation
Officer.
(3) The parolee shall not leave the limits fixed by his certificate
of parole without written permission from the probation officer.
(4) The parolee shall notify his probation officer within two days
of any change in his place of residence.
(5) The parolee shall make a complete and truthful written report
(on a form provided for that purpose) to his probation officer between
the first and third day of each month, and on the final day of parole.
He shall also report to his probation officer, at other times as the
probation officer directs, providing complete and truthful information.
(6) The parolee shall not violate any law, nor shall he associate
with persons engaged in criminal activity. The parolee shall get in
touch within two days with his probation officer or office if he is
arrested or questioned by a law-enforcement officer.
(7) The parolee shall not enter into any agreement to act as an
informer or special agent for any law-enforcement agency.
(8) The parolee shall work regularly unless excused by his probation
officer, and support his legal dependents, if any, to the best of his
ability. He shall report within two days to his probation officer any
changes in employment.
(9) The parolee shall not drink alcoholic beverages to excess. He
shall not purchase, possess, use, or administer marihuana or narcotic or
other habitforming drugs, unless prescribed or advised by a physician.
The parolee shall not frequent places where such drugs are illegally
sold, dispensed, used, or given away.
(10) The parolee shall not associate with persons who have a
criminal record unless he has permission of his probation officer.
(11) The parolee shall not possess a firearm or other dangerous
weapon.
Note: Such permission may not be considered in cases in which the
parolee is prohibited from such possession by any federal, state, or
local law.
(12) The parolee shall permit confiscation by his Probation Officer
of any materials which the Probation Officer believes may constitute
contraband in the parolee's possession and which he observes in plain
view in the parolee's residence, place of business or occupation,
vehicle(s), or on his person. The Commission may also, when a reasonable
basis for doing is presented, modify the conditions of parole to require
the parolee to permit the U.S. Probation Officer to conduct searches and
seizures of concealed contraband on the parolee's person, and in any
building, vehicle, or other area under the parolee's control, at such
times as the U.S. Probation Officer shall decide.
(13) The parolee shall make a diligent effort to satisfy any fine,
restitution order, court costs or assessment, and/or court ordered child
support or alimony payment that has been, or may be, imposed, and shall
provide such financial information as may be requested, by his Probation
Officer, relevant to the payment of the obligation. If unable to pay the
obligation in one sum, the parolee will cooperate with his Probation
Officer in establishing an installment payment schedule.
(14) The parolee shall submit to a drug test whenever ordered by his
Probation Officer.
(b) The Commission or a member thereof may at any time modify or add
to the conditions of release pursuant to this section, on its own motion
or on the request of the United States Probation Officer supervising the
parolee. The parolee shall receive notice of the proposed modification
and unless waived shall have ten days following receipt of such notice
to express his views thereon. Following such ten day period, the
Commission shall have 21 days, exclusive of holidays, to order such
modification of or addition to the conditions of release.
(c) The Commission may require a parolee to reside in or participate
in the program of a residential treatment
[[Page 135]]
center, or both, for all or part of the period of parole.
(d) The Commission may require a parolee, who is an addict, within
the meaning of section 4251(a), or a drug dependent person within the
meaning of section 2(8) of the Public Health Service Act, as amended, to
participate in the community supervision program authorized by section
4255 for all or part of the period of parole.
(e) The Commission may require that a parolee remain at his place of
residence during nonworking hours and, if the Commission so directs, to
have compliance with this condition monitored by telephone or electronic
signaling devices. A condition under this section may be imposed only as
an alternative to incarceration.
(f) A parolee may petition the Commission on his own behalf for a
modification of conditions pursuant to this section.
(g) The ten-day notice provision of paragraph (b) of this section
shall not apply to a modification of the conditions of parole
(1) Following a revocation hearing,
(2) Upon a finding that immediate modification of the conditions of
parole is required to prevent harm to the parolee or the public, or
(3) In response to a request by the parolee under paragraph (f) of
this section.
(h) A parolee may appeal an order to impose or modify parole
conditions under Sec. 2.26 not later than thirty days after the
effective date of such conditions.
(i) A prisoner who, having been granted a parole date, subsequently
refuses to sign the parole certificate, or any other consent form
necessary to fulfill the conditions of parole, shall be deemed to have
withdrawn the application for parole as of the date of refusal to sign.
To be again considered for parole, the prisoner must reapply for parole
consideration. With respect to prisoners who are required to be released
to supervision through good time reductions (pursuant to 18 U.S.C 4161
and 4164), the conditions of parole set forth in this rule, and any
other special conditions ordered by the Commission, shall be in full
force and effect upon the established release date regardless of any
refusal by the releasee to sign the parole certificate.
(j) Any parolee who absconds from supervision has effectively
prevented his sentence from expiring. Therefore, the parolee remains
bound by the conditions of his release and violations committed at any
time prior to execution of the warrant, whether before or after the
original expiration date, may be charged as a basis for revocation, and
a warrant may be supplemented at any time.
(k) A parolee or mandatory releasee who is released after December
31, 1988, and who is found by the Commission, after a revocation hearing
conducted pursuant to these rules, to have been in possession of a
controlled substance while on parole, shall have his or her parole
revoked. When considering what action to take with regard to a parolee
who fails a drug test, the Commission shall consider appropriate
alternatives to revocation pursuant to 18 U.S.C. 4209(a). In no case
shall parole be revoked upon the basis of a single, unconfirmed positive
drug test that is challenged by the parolee, without other violations
having been found to justify such revocation.
(l)(1) The Commission may require a parolee, when there is evidence
of prior or current alcohol dependence or abuse, to participate in an
alcohol aftercare treatment program. In such a case, the Commission will
require that the parolee abstain from the use of alcohol and/or all
other intoxicants during and after the course of treatment.
(2) The Commission may require a parolee, where there is evidence of
prior or current drug dependence or abuse, to participate in a drug
treatment program, which shall include at least two periodic tests to
determine whether the parolee has reverted to the use of drugs
(including alcohol). In such a case, the Commission will require that
the parolee abstain from the use of alcohol and/or all other intoxicants
during and after the course of treatment. A decision by the Commission
not to impose this special condition shall constitute good cause for
suspension of the drug testing requirements of 18 U.S.C. 4209(a). In the
event such condition is imposed prior to an eligible prisoner's release
from prison,
[[Page 136]]
any grant of parole or reparole shall be contingent upon the prisoner
passing all pre-release drug tests administered by the U.S. Bureau of
Prisons.
[42 FR 39809, Aug. 5, 1977, as amended at 45 FR 84054, Dec. 22, 1980; 46
FR 52354, Oct. 27, 1981; 48 FR 22917, May 23, 1983; 48 FR 23184, May 24,
1983; 49 FR 6717, Feb. 23, 1984; 49 FR 44098, Nov. 2, 1984; 50 FR 28101,
July 10, 1985; 50 FR 36422, Sept. 6, 1985; 54 FR 11687, Mar. 21, 1989;
55 FR 862, Jan. 10, 1990; 56 FR 30871, 30873, July 8, 1991; 59 FR 66735,
Dec. 28, 1994; 60 FR 5461, Jan. 27, 1995; 60 FR 51349, Oct. 2, 1995]
Sec. 2.41 Travel approval.
(a) The probation officer may approve travel outside the district
without approval of the Commission in the following situations:
(1) Vacation trips not to exceed thirty days.
(2) Trips, not to exceed thirty days, to investigate reasonably
certain employment possibilities.
(3) Recurring travel across a district boundary, not to exceed fifty
miles outside the district, for purpose of employment, shopping, or
recreation.
(b) Specific advance approval by the Commission is required for all
foreign travel, employment requiring recurring travel more than fifty
miles outside the district (except employment at offshore locations),
and vacation travel outside the district exceeding thirty days. A
request for such permission shall be in writing and must demonstrate a
substantial need for such travel.
(c) A special condition imposed by the Regional Commissioner
prohibiting certain travel shall supersede any general rules relating to
travel as set forth above.
[42 FR 39809, Aug. 5, 1977, as amended at 44 FR 3408, Jan. 16, 1979; 48
FR 9247, Mar. 4, 1983; 57 FR 59916, Dec. 17, 1992]
Sec. 2.42 Probation officer's reports to Commission.
A supervision report shall be submitted by the responsible probation
officer to the Commission for each parolee after the completion of 24
months of continuous supervision and annually thereafter. The probation
officer shall submit such additional reports as the Commission may
direct.
[51 FR 11017, Apr. 1, 1986]
Sec. 2.43 Early termination.
(a)(1) Upon its own motion or upon request of the parolee, the
Commission may terminate supervision, and thus jurisdiction, over a
parolee prior to the expiration of his maximum sentence.
(2) A committed youth offender sentenced to a term of more than one
year may not be granted an early termination of jurisdiction earlier
than after one year of continuous supervision on parole. When
termination of jurisdiction prior to the expiration of sentence is
granted in the case of a youth offender, his conviction shall be
automatically set aside. A certificate setting aside his conviction
shall be issued in lieu of a certificate of termination.
(b) Two years after release on supervision, and at least annually
thereafter, the Commission shall review the status of each parolee to
determine the need for continued supervision. In calculating such two-
year period there shall not be included any period of release on parole
prior to the most recent release, nor any period served in confinement
on any other sentence. A review will also be conducted whenever early
termination is recommended by the supervising probation officer.
(c)(1) Five years after release on supervision, the Commission shall
terminate supervision over such parolee unless it is determined, after a
hearing conducted in accordance with the procedures prescribed in 18
U.S.C. 4214(a)(2), that such supervision should not be terminated
because there is a likelihood that the parolee will engage in conduct
violating any criminal law. Such hearing may be conducted by a hearing
examiner or other official designated by the Regional Commissioner. In
calculating such five-year period, there shall not be included any
period of release on parole prior to the most recent release or any
period served in confinement on any other sentence.
(2) If supervision is not terminated under paragraph (c)(1) of this
section the parolee may request a hearing annually thereafter, and a
hearing shall
[[Page 137]]
be conducted with respect to termination of supervision not less
frequently than biennially.
(3) A parolee may appeal an adverse decision under paragraphs (c)(1)
or (c)(2) of this section pursuant to Sec. 2.26 or Sec. 2.27 as
applicable.
(d) The Regional Commissioner in the region of supervision shall
have authority to make decisions under this section pursuant to the
guidelines set forth below; except that in the case of a parolee
classified under the provisions of Sec. 2.17, an affirmative decision to
terminate supervision under paragraph (b) of this section, or a decision
to terminate or continue supervision under paragraph (c) of this section
shall be made pursuant to the provisions of Sec. 2.17.
(e) Early termination guidelines. In determining whether to grant
early termination from supervision, the Commission shall apply the
following guidelines:
(1) Absent case-specific factors to the contrary, termination of
supervision shall be considered indicated when:
(i) A parolee originally classified in the very good risk category
(pursuant to Sec. 2.20) has completed two continuous years of
supervision free from any indication of new criminal behavior or serious
parole violation; and
(ii) A parolee originally classified in other than the very good
risk category (pursuant to Sec. 2.20) has completed three continuous
years of supervision free from any indication of new criminal behavior
or serious parole violation.
Note: As used in this section, an indication of new criminal
behavior includes a new arrest if supported by substantial evidence of
guilt, even if no conviction or parole revocation results.
(2) Decisions to continue the parolee under supervision past the
period indicated above may be made where case-specific factors justify a
conclusion that continued supervision is needed to protect the public
welfare. Such case-specific factors may relate to the current behavior
of the parolee (for example, a parolee whose behavior begins to
deteriorate as the normally expected time for termination approaches) or
to the parolee's background (for example, a parolee with a history of
repetitive assaultive conduct or substantial involvement in large scale
or organized criminal activity). In such cases, an additional period of
supervision prior to termination of jurisdiction may be warranted.
(3) Decisions to terminate supervision prior to completion of the
three year period specified in paragraph (e)(1)(ii) of this section may
be made where it appears that the parolee is a better risk than
indicated by the salient factor score as originally calculated. However,
termination of supervision prior to the completion of two years of
difficulty-free supervision will not be granted unless case-specific
factors clearly indicate that continued supervision would be
counterproductive.
(4) Cases with pending criminal charge(s) shall not be terminated
from supervision until disposition of such charge(s) is known.
(5) After five continuous years of supervision, decisions to
terminate will be made in accordance with subsection (c) of this rule.
[46 FR 28649, May 28, 1981, as amended at 46 FR 35639, July 10, 1981; 49
FR 44098, Nov. 2, 1984; 50 FR 36424, Sept. 6, 1985]
Sec. 2.44 Summons to appear or warrant for retaking of parolee.
(a) If a parolee is alleged to have violated the conditions of his
release, and satisfactory evidence thereof is presented, the Commission
or a member thereof may:
(1) Issue a summons requiring the offender to appear for a
preliminary interview or local revocation hearing.
(2) Issue a warrant for the apprehension and return of the offender
to custody.
A summons or warrant may be issued or withdrawn only by the Commission,
or a member thereof.
(b) Any summons or warrant under this section shall be issued as
soon as practicable after the alleged violation is reported to the
Commission, except when delay is deemed necessary. Issuance of a summons
or warrant may be withheld until the frequency or seriousness of
violations, in the opinion of the Commission, requires such issuance. In
the case of any parolee charged with a criminal offense and awaiting
disposition of the charge,
[[Page 138]]
issuance of a summons or warrant may be withheld, a warrant may be
issued and held in abeyance, or a warrant may be issued and a detainer
may be placed.
(c) A summons or warrant may be issued only within the prisoner's
maximum term or terms except that in the case of a prisoner released as
if on parole pursuant to 18 U.S.C. 4164, such summons or warrant may be
issued only within the maximum term or terms, less one hundred eighty
days. A summons or warrant shall be considered issued when signed and
either--
(1) Placed in the mail or
(2) Sent by electronic transmission to the intended authorities.
(d) The issuance of a warrant under this section operates to bar the
expiration of the parolee's sentence. Such warrant maintains the
Commission's jurisdiction to retake the parolee either before or after
the normal expiration date of the sentence and to reach a final decision
as to revocation of parole and forfeiture of time pursuant to
Sec. 2.52(c).
(e) A summons or warrant issued pursuant to this section shall be
accompanied by a statement of the charges against the parolee, the
applicable procedural rights under the Commission's regulations and the
possible actions which may be taken by the Commission. A summons shall
specify the time and place the parolee shall appear for a revocation
hearing. Failure to appear in response to a summons shall be grounds for
issuance of a warrant.
[42 FR 39809, Aug. 5, 1977, as amended at 45 FR 84055, Dec. 22, 1980; 54
FR 11688, Mar. 21, 1989; 63 FR 25771, May 11, 1998]
Sec. 2.45 Same; youth offenders.
(a) In addition to the issuance of a summons or warrant pursuant to
Sec. 2.44 of this part, the Commission or a member thereof, when of the
opinion that a youth offender will be benefitted by further treatment in
an institution or other facility, may direct his return to custody or
issue a warrant for his apprehension and return to custody.
(b) Upon his return to custody, such youth offender shall be
scheduled for a revocation hearing.
Sec. 2.46 Execution of warrant and service of summons.
(a) Any officer of any Federal correctional institution or any
Federal officer authorized to serve criminal process within the United
States, to whom a warrant is delivered shall execute such warrant by
taking the parolee and returning him to the custody of the Attorney
General.
(b) On arrest of the parolee the officer executing the warrant shall
deliver to him a copy of the Warrant Application listing the charges
against the parolee, the applicable procedural rights under the
Commission's regulations and the possible actions which may be taken by
the Commission.
(c) If execution of the warrant is delayed pending disposition of
local charges, for further investigation, or for some other purpose, the
parolee is to be continued under supervision by the probation officer
until the normal expiration of the sentence, or until the warrant is
executed, whichever first occurs. Monthly supervision reports are to be
submitted, and the parolee must continue to abide by all the conditions
of release.
(d) A summons to appear at a preliminary interview or revocation
hearing shall be served upon the parolee in person by delivering to the
parolee a copy of the summons. Service shall be made by any Federal
officer authorized to serve criminal process within the United States,
and certification of such service shall be returned to the appropriate
regional office of the Commission.
[42 FR 39809, Aug. 5, 1977, as amended at 44 FR 3409, Jan. 16, 1979]
Sec. 2.47 Warrant placed as a detainer and dispositional review.
(a) When a parolee is serving a new sentence in a federal, state or
local institution, a parole violation warrant may be placed against him
as a detainer.
(1) If the prisoner is serving a new sentence in a federal
institution, a revocation hearing shall be scheduled within 120 days of
notification of placement of the detainer, or as soon thereafter as
practicable, provided the prisoner is eligible for and has applied for
an initial hearing on the new sentence,
[[Page 139]]
or is serving a new sentence of one year or less. In any other case, the
detainer shall be reviewed on the record pursuant to paragraph (a)(2) of
this section.
(2) If the prisoner is serving a new sentence in a state or local
institution, the violation warrant shall be reviewed by the Regional
Commissioner not later than 180 days following notification to the
Commission of such placement. The parolee shall receive notice of the
pending review, and shall be permitted to submit a written application
containing information relative to the disposition of the warrant. He
shall also be notified of his right to request counsel under the
provisions of Sec. 2.48(b) to assist him in completing this written
application.
(b) If the prisoner is serving a new federal sentence, the Regional
Commissioner, following a dispositional record review, may:
(1) Pursuant to the general policy of the Commission, let the
warrant stand as a detainer and order that the revocation hearing be
scheduled to coincide with the initial hearing on the new federal
sentence or upon release from the new sentence, whichever comes first;
(2) Withdraw the warrant, and either order reinstatement of the
parolee to supervision upon release from confinement or close the case
if the expiration date has passed.
(c) If the prisoner is serving a new state or local sentence, the
Regional Commissioner, following a dispositional record review may:
(1) Withdraw the detainer and order reinstatement of the parolee to
supervision upon release from custody, or close the case if the
expiration date has passed.
(2) Order a revocation hearing to be conducted by a hearing examiner
or an official designated by the Regional Commissioner at the
institution in which the parolee is confined.
(3) Let the detainer stand and order further review at an
appropriate time. If the warrant is not withdrawn and no revocation
hearing is conducted while the prisoner is in state or local custody, an
institutional revocation hearing shall be conducted after the prisoner's
return to federal custody.
(d) Revocation hearings pursuant to this section shall be conducted
in accordance with the provisions governing institutional revocation
hearings, except that a hearing conducted at a state or local facility
may be conducted by a hearing examiner, hearing examiner panel, or other
official designated by the Regional Commissioner. Following a revocation
hearing conducted pursuant to this section, the Commission may take any
action specified in Sec. 2.52.
(e)(1) A parole violator whose parole is revoked shall be given
credit for all time in federal, state, or local confinement on a new
offense for purposes of satisfaction of the reparole guidelines at
Sec. 2.20 and Sec. 2.21.
(2) However, it shall be the policy of the Commission that the
revoked parolee's original sentence (which due to the new conviction,
stopped running upon his last release from federal confinement on
parole) again start to run only upon release from the confinement
portion of the new sentence or the date of reparole granted pursuant of
these rules, whichever comes first. This subsection does not apply to
cases where, by law, the running of the original sentence is not
interrupted by a new conviction (e.g., YCA; NARA; Mexican or Canadian
treaty cases).
(f) If a Regional Commissioner determines that additional
information is required in order to make a decision pursuant to
paragraph (a)(2) of this section, he may schedule a dispositional
hearing at the state or local institution where the parolee is confined
to obtain such information. Such hearing may be conducted by a hearing
examiner, hearing examiner panel, or other official designated by the
Regional Commissioner. The parolee shall have notice of such hearing, be
allowed to testify in his behalf, and have opportunity for counsel as
provided in Sec. 2.48(b).
[52 FR 17400, May 8, 1987, as amended at 61 FR 33657, June 28, 1996]
Sec. 2.48 Revocation: Preliminary interview.
(a) Interviewing officer. A parolee who is retaken on a warrant
issued by a
[[Page 140]]
Commissioner shall be given a preliminary interview by an official
designated by the Regional Commissioner to enable the Commission to
determine if there is probable cause to believe that the parolee has
violated his parole as charged, and if so, whether a revocation hearing
should be conducted. The official designated to conduct the preliminary
interview may be a U.S. Probation Officer in the district where the
prisoner is confined, provided he is not the officer who recommended
that the warrant be issued.
(b) Notice and opportunity to postpone interview. At the beginning
of the preliminary interview, the interviewing officer shall ascertain
that the Warrant Application has been given to the parolee as required
by Sec. 2.46(b), and shall advise the parolee that he may have the
preliminary interview postponed in order to obtain representation by an
attorney or arrange for the attendance of witnesses. The parolee shall
also be advised that if he cannot afford to retain an attorney he may
apply to a U.S. District Court for appointment of counsel to represent
him at the preliminary interview and the revocation hearing pursuant to
18 U.S.C. 3006A. In addition, the parolee may request the Commission to
obtain the presence of persons who have given information upon which
revocation may be based. Such adverse witnesses shall be requested to
attend the preliminary interview unless the parolee admits a violation
or has been convicted of a new offense while on supervision or unless
the interviewing officer finds good cause for their non-attendance.
Pursuant to Sec. 2.51 a subpoena may issue for the appearance of adverse
witnesses or the production of documents.
(c) Review of the charges. At the preliminary interview, the
interviewing officer shall review the violation charges with the
parolee, apprise the parolee of the evidence which has been presented to
the Commission, receive the statements of witnesses and documentary
evidence on behalf of the parolee, and allow cross-examination of those
witnesses in attendance. Disclosure of the evidence presented to the
Commission shall be made pursuant to Sec. 2.50(d).
(d) At the conclusion of the preliminary interview, the interviewing
officer shall inform the parolee of his recommended decision as to
whether there is probable cause to believe that the parolee has violated
the conditions of his release, and shall submit to the Commission a
digest of the interview together with his recommended decision.
(1) If the interviewing officer's recommended decision is that no
probable cause may be found to believe that the parolee has violated the
conditions of his release, the responsible Regional Commissioner shall
review such recommended decision and notify the parolee of his final
decision concerning probable cause as expeditiously as possible
following receipt of the interviewing officer's digest. A decision to
release the parolee shall be implemented without delay.
(2) If the interviewing officer's recommended decision is that
probable cause may be found to believe that the parolee has violated a
condition (or conditions) of his release, the responsible Regional
Commissioner shall notify the parolee of his final decision concerning
probable cause within 21 days of the date of the preliminary interview.
(3) Notice to the parolee of any final decision of a Regional
Commissioner finding probable cause and ordering a revocation hearing
shall state the charges upon which probable cause has been found and the
evidence relied upon.
(e) Release notwithstanding probable cause. If the Commission finds
probable cause to believe that the parolee has violated the conditions
of his release, reinstatement to supervision or release pending further
proceeding may nonetheless be ordered if it is determined that:
(1) Continuation of revocation proceedings is not warranted despite
the violations found; or
(2) Incarceration pending further revocation proceedings is not
warranted by the alleged frequency or seriousness of such violation or
violations, and that the parolee is not likely to fail to appear for
further proceedings, and that the parolee does not constitute a danger
to himself or others.
[[Page 141]]
(f) Conviction as probable cause. Conviction of a Federal, State, or
local crime committed subsequent to release by a parolee shall
constitute probable cause for the purposes of this section and no
preliminary interview shall be conducted unless otherwise ordered by the
Regional Commissioner.
(g) Local revocation hearing. A postponed preliminary interview may
be conducted as a local revocation hearing by an examiner panel or other
interviewing officer designated by the Regional Commissioner provided
that the parolee has been advised that the postponed preliminary
interview will constitute his final revocation hearing.
[42 FR 39809, Aug. 5, 1977, as amended at 44 FR 3408, 3409, Jan. 16,
1979; 46 FR 42842, Aug. 25, 1981; 47 FR 25735, June 15, 1982]
Sec. 2.49 Place of revocation hearing.
(a) If the parolee requests a local revocation hearing, he shall be
given a revocation hearing reasonably near the place of the alleged
violation(s) or arrest, if the following conditions are met:
(1) The parolee has not been convicted of a crime committed while
under supervision; and
(2) The parolee denies that he has violated any condition of his
release.
(b) If there are two or more alleged violations, the hearing may be
conducted near the place of the violation chiefly relied upon as a basis
for the issuance of the warrant or summons as determined by the Regional
Commissioner.
(c) A parolee who voluntarily waives his right to a local revocation
hearing, or who admits any violation of the conditions of his release,
or who is retaken following conviction of a new crime, shall be given a
revocation hearing upon his return to a Federal institution. However,
the Regional Commissioner may, on his own motion, designate a case for a
local revocation hearing.
(d) A parolee retaken on a warrant issued by the Commission shall be
retained in custody until final action relative to revocation of his
release, unless otherwise ordered by the Regional Commissioner under
Sec. 2.48(e)(2). A parolee who has been given a revocation hearing
pursuant to the issuance of a summons under Sec. 2.44 shall remain on
supervision pending the decision of the Commission.
(e) A local revocation hearing shall be scheduled to be held within
sixty days of the probable cause determination. Institutional revocation
hearings shall be scheduled to be held within ninety days of the date of
the execution of the violator warrant upon which the parolee was
retaken. However, if a parolee requests and receives any postponement or
consents to a postponed revocation proceeding, or if a parolee by his
actions otherwise precludes the prompt conduct of such proceedings, the
above-stated time limits may be extended. A local revocation hearing may
be conducted by a hearing examiner, hearing examiner panel, or other
official designated by the Regional Commissioner.
[42 FR 39809, Aug. 5, 1977, as amended at 44 FR 3408, 3409, Jan. 16,
1979]
Sec. 2.50 Revocation hearing procedure.
(a) The purpose of the revocation hearing shall be to determine
whether the parolee has violated the conditions of his release and, if
so, whether his parole or mandatory release should be revoked or
reinstated.
(b) The alleged violator may present witnesses, and documentary
evidence in his behalf. However, the presiding hearing officer or
examiner panel may limit or exclude any irrelevant or repetitious
statement or documentary evidence.
(c) At a local revocation hearing, the Commission may on the request
of the alleged violator or on its own motion, request the attendance of
persons who have given statements upon which revocation may be based.
Those witnesses who are present shall be made available for questioning
and cross-examination in the presence of the alleged violator unless the
presiding hearing officer or examiner panel finds good cause for their
non-attendance. Adverse witnesses will not be requested to appear at
institutional revocation hearings.
(d) All evidence upon which the finding of violation may be based
shall be disclosed to the alleged violator at or before the revocation
hearing. The hearing officer or examiner panel may
[[Page 142]]
disclose documentary evidence by permitting the alleged violator to
examine the document during the hearing, or where appropriate, by
reading or summarizing the document in the presence of the alleged
violator.
(e) In lieu of an attorney, an alleged violator may be represented
at a revocation hearing by a person of his choice. However, the role of
such non-attorney representative shall be limited to offering a
statement on the alleged violator's behalf with regard to reparole or
reinstatement to supervision.
(f) A revocation decision may be appealed under the provisions of
Sec. 2.26 or Sec. 2.27 as applicable.
[42 FR 39809, Aug. 5, 1977, as amended at 44 FR 3408, Jan. 16, 1979; 51
FR 32785, Sept. 16, 1986; 52 FR 33409, Sept. 3, 1987]
Sec. 2.51 Issuance of a subpoena for the appearance of witnesses or production of documents.
(a)(1) Preliminary interview or local revocation hearing: If any
person who has given information upon which revocation may be based
refuses, upon request by the Commission to appear, the Regional
Commissioner may issue a subpoena for the appearance of such witness.
Such subpoena may also be issued at the discretion of the Regional
Commissioner in the event such adverse witness is judged unlikely to
appear as requested.
(2) In addition, the Regional Commissioner may, upon his own motion
or upon a showing by the parolee that a witness whose testimony is
necessary to the proper disposition of his case will not appear
voluntarily at a local revocation hearing or provide an adequate written
statement of his testimony, issue a subpoena for the appearance of such
witness at the revocation hearing.
(3) Both such subpoenas may also be issued at the discretion of the
Regional Commissioner if it is deemed necessary for orderly processing
of the case.
(b) A subpoena issued pursuant to paragraph (a) of this section
above may require the production of documents as well as, or in lieu of,
a personal appearance. The subpoena shall specify the time and the place
at which the person named therein is commanded to appear, and shall
specify any documents required to be produced.
(c) A subpoena may be served by any Federal officer authorized to
serve criminal process. The subpoena may be served at any place within
the judicial district in which the place specified in the subpoena is
located, or any place where the witness may be found. Service of a
subpoena upon a person named therein shall be made by delivering a copy
thereof to such person.
(d) If a person refuses to obey such subpoena, the Commission may
petition a court of the United States for the judicial district in which
the parole proceeding is being conducted, or in which such person may be
found, to require such person to appear, testify, or produce evidence.
The court may issue an order requiring such person to appear before the
Commission, and failure to obey such an order is punishable by contempt.
Sec. 2.52 Revocation decisions.
(a) Whenever a parolee is summoned or retaken by the Commission, and
the Commission finds by a preponderance of the evidence, that the
parolee has violated a condition of the parole, the Commission may take
any of the following actions:
(1) Restore the parolee to supervision including where appropriate:
(i) Reprimand;
(ii) Modification of the parolee's conditions of release;
(iii) Referral to a residential community treatment center for all
or part of the remainder of his original sentence; or
(2) Revoke parole.
(b) If parole is revoked pursuant to this section, the Commission
shall also determine, on the basis of the revocation hearing, whether
reparole is warranted or whether the prisoner should be continued for
further review.
(c) A parolee whose release is revoked by the Commission will
receive credit on service of his sentence for time spent under
supervision, except as provided below:
(1) If the Commission finds that such parolee intentionally refused
or failed to respond to any reasonable request,
[[Page 143]]
order, summons or warrant of the Commission or any agent thereof, the
Commission may order the forfeiture of the time during which the parolee
so refused or failed to respond, and such time shall not be credited to
service of the sentence.
(2) It is the Commission's interpretation of 18 U.S.C. 4210(b)(2)
that, if a parolee has been convicted of a new offense committed
subsequent to his release on parole, which is punishable by any term of
imprisonment, detention, or incarceration in any penal facility,
forfeiture of time from the date of such release to the date of
execution of the warrant is an automatic statutory penalty, and such
time shall not be credited to the service of the sentence. An actual
term of confinement or imprisonment need not have been imposed for such
conviction; it suffices that the statute under which the parolee was
convicted permits the trial court to impose any term of confinement or
imprisonment in any penal facility. If such conviction occurs subsequent
to a revocation hearing the Commission may reopen the case and schedule
a further hearing relative to time forfeiture and such further
disposition as may be appropriate. However, in no event shall the
violator term imposed under this subsection, taken together with the
time served before release, exceed the total length of the original
sentence.
(d)(1) Notwithstanding the above, prisoners committed under the
Narcotic Addict Rehabilitation Act or the Youth Corrections Act shall
not be subject to any forfeiture provision, but shall serve
uninterrupted sentences from the date of conviction, except as provided
in Sec. 2.10 (b) and (c).
(2) The commitment of a juvenile offender under the Federal Juvenile
Delinquency Act may not be extended past the offender's twenty-first
birthday unless the juvenile has attained his nineteenth birthday at the
time of his commitment, in which case his commitment shall not exceed
the lesser of two years or the maximum term which could have been
imposed on an adult convicted of the same offense.
(e) In determining whether to revoke parole for non-compliance with
a condition of fine, restitution, court costs or assessment, and/or
court ordered child support or alimony payment, the Parole Commission
shall consider the parolee's employment status, earning ability,
financial resources, and any other special circumstances that may have a
bearing on the matter. Revocation shall not be ordered unless the
parolee is found to be deliberately evading or refusing compliance.
Appendix to Sec. 2.52--General Statement of Policy
In the case of any revocation hearing conducted within the Ninth
Circuit, the Commission will exercise discretion in determining whether
or not to order forfeiture of all or part of the time spent on parole
pursuant to 18 U.S.C. 4210(b)(2). The Commission's policy shall be to
consider granting credit for time on parole in the case of a parole
violator originally classified in the very good risk category (pursuant
to 28 CFR 2.20) if the following condtions are met. The conviction must
not be for a felony offense. The parole violation behavior (the offense
of conviction plus any other violations) must be non-violent, and not
involve a repeat of the parole violator's original offense behavior.
Further, an adequate period of reimprisonment pursuant to the reparole
guidelines at 28 CFR 2.21, and an adequate period of renewed supervision
following release from reimprisonment or reinstatement to supervision,
must be available without forfeiting street time. In the case of a
parole violator originally classified in other than the ``very good
risk'' category, it shall be the Commission's policy to order the
forfeiture of all time spent on parole absent extraordinary
circumstances. In no instance will the Commission grant credit in the
case of a repeat violator on the current sentence.
[42 FR 39809, Aug. 5, 1977, as amended at 44 FR 3408, 3410, Jan. 16,
1979; 50 FR 36422, Sept. 6, 1985; 53 FR 47187, Nov. 22, 1988; 55 FR
42185, Oct. 18, 1990]
Sec. 2.53 Mandatory parole.
(a) A prisoner (including a prisoner sentenced under the Narcotic
Addict Rehabilitation Act, Federal Juvenile Delinquency Act, or the
provisions of 5010(c) of the Youth Corrections Act) serving a term or
terms of 5 years or longer shall be released on parole after completion
of two-thirds of each consecutive term or terms or after completion of
30 years of each term or terms of more than 45 years (including life
terms), whichever comes earlier, unless pursuant to a hearing under this
section, the Commission determines that
[[Page 144]]
there is a reasonable probability that the prisoner will commit any
Federal, State, or local crime or that the prisoner has frequently or
seriously violated the rules of the institution in which he is confined.
If parole is denied pursuant to this section, such prisoner shall serve
until the expiration of his sentence less good time.
(b) When feasible, at least 60 days prior to the scheduled two-
thirds date, a review of the record shall be conducted by an examiner
panel. If a mandatory parole is ordered following this review, no
hearing shall be conducted.
(c) A prisoner released on mandatory parole pursuant to this section
shall remain under supervision until the expiration of the full term of
his sentence unless the Commission terminates parole supervision
pursuant to Sec. 2.43 prior to the full term date of the sentence.
(d) A prisoner whose parole has been revoked and whose parole
violator term is 5 years or more shall be eligible for mandatory parole
under the provisions of this section upon completion of two-thirds of
the violator term and shall be considered for mandatory parole under the
same terms as any other eligible prisoner.
[43 FR 38822, Aug. 31, 1978]
Sec. 2.54 Reviews pursuant to 18 U.S.C. 4215(c).
The Attorney General, within thirty days after entry of a Regional
Commissioner's decision, may request in writing that the National
Appeals Board review such decision. Within sixty days of the receipt of
the request the National Appeals Board shall, upon the concurrence of
two members, affirm, modify, or reverse the decision, or order a
rehearing at the institutional or regional level. The Attorney General
and the prisoner affected shall be informed in writing of the decision,
and the reasons therefor.
[42 FR 39821, Aug. 5, 1977, as amended at 43 FR 17470, Apr. 25, 1978; 44
FR 3408, Jan. 16, 1979]
Sec. 2.55 Disclosure of file prior to parole hearing.
(a) Processing disclosure requests. At least 60 days prior to a
hearing scheduled pursuant to 28 CFR 2.12 or 2.14 each prisoner shall be
given notice of his right to request disclosure of the reports and other
documents to be used by the Commission in making its determination.
(1) The Commission's file consists mainly of documents provided by
the Bureau of Prisons. Therefore, disclosure of documents used by the
Commission can normally be accomplished by disclosure of documents in a
prisoner's institutional file. Requests for disclosure of a prisoner's
institutional file will be handled under the Bureau of Prison's
disclosure regulations. The Bureau of Prisons has 15 days from date of
receipt of a disclosure request to respond to that request.
(2) A prisoner may also request disclosure of documents used by the
Commission which are contained in the Commission's regional office file
but not in the prisoner's institutional file.
(3) Upon the prisoner's request, a representative shall be given
access to the presentence investigation report reasonably in advance of
the initial hearing, interim hearing, and a 15-year reconsideration
hearing, pursuant and subject to the regulations of the U.S. Bureau of
Prisons. Disclosure shall not be permitted with respect to confidential
material withheld by the sentencing court under Rule 32(c)(3)(A),
F.R.Crim.P.
(b) Scope of disclosure. The scope of disclosure under this section
is limited to reports and other documents to be used by the Commission
in making its determination. At statutory interim hearings conducted
pursuant to 28 CFR 2.14 the Commission only considers information
concerning significant developments or changes in the prisoner's status
since the initial hearing or a prior interim hearing. Therefore,
prehearing disclosure for interm hearings will be limited to such
information.
(c) Exemption to disclosure (18 U.S.C. 4208(c)). A document may be
withheld from disclosure to the extent it contains:
(1) Diagnostic opinions which, if known to the prisoner, could lead
to a serious disruption of his institutional program;
(2) Material which would reveal a source of information obtained
upon a promise of confidentiality; or
[[Page 145]]
(3) Any other information which, if disclosed, might result in harm,
physical or otherwise to any person.
(d) Summarizing nondisclosable documents. If any document or portion
of a document is found by the Commission, the Bureau of Prisons or the
originating agency to fall within an exemption to disclosure, the agency
shall:
(1) Identify the material to be withheld; and
(2) State the exemption to disclosure under paragraph (c) of this
section; and
(3) Provide the prisoner with a summary of the basic content of the
material withheld with as much specificity as possible without revealing
the nondisclosable information.
(e) Waiver of disclosure. When a timely request has been made for
disclosure, if any document or summary of a document relevant to the
parole determination has not been disclosed 30 days prior to the
hearing, the prisoner shall be offered the opportunity to waive
disclosure of such document without prejudice to his right to later
review the document or a summary of the document. The examiner panel may
disclose the document and proceed with the hearing so long as the
prisoner waives his right to advance disclosure. If the prisoner chooses
not to waive prehearing disclosure, the examiner panel shall continue
the hearing to the next docket to permit disclosure. A continuance for
disclosure should not be extended beyond the next hearing docket.
(f) Late received documents. If a document containing new and
significant adverse information is received after a parole hearing but
before all review and appellate procedures have been concluded, the
prisoner shall be given a rehearing on the next docket. A copy of the
document shall be forwarded to the institution for inclusion in the
prisoner's institutional file. The Commission shall notify the prisoner
of the new hearing and his right to request disclosure of the document
pursuant to this section. If a late received document provides favorable
information, merely restates already available information or provides
insignificant information, the case will not be reopened for disclosure.
(g) Reopened cases. Whenever a case is reopened for a new hearing
and there is a document the Commission intends to use in making its
determination, a copy of the document shall be forwarded for inclusion
in the prisoner's institutional file and the prisoner shall be informed
of his right to request disclosure of the document pursuant to this
section.
[50 FR 40374, Oct. 3, 1985]
Sec. 2.56 Disclosure of Parole Commission file.
(a) Procedure. Copies of disclosable records pertaining to a
prisoner or a parolee which are contained in the subject's Parole
Commission file may be obtained by that prisoner or parolee upon written
request pursuant to this section. Such requests shall be answered as
soon as possible in the order of their receipt. Other persons may obtain
copies of such documents only upon proof of authorization from the
prisoner or parolee concerned or to the extent permissable under the
Freedom of Information Act or the Privacy Act of 1974.
(b) Scope of disclosure. Disclosure under this section shall extend
to Commission documents concerning the prisoner or parolee making the
request. Documents which are contained in the regional file and which
are prepared by agencies other than the Commission which are also
subject to the provisions of the Freedom of Information Act, shall be
referred to the appropriate agency for a response pursuant to its
regulations, unless the document has previously been prepared for
disclosure pursuant to Sec. 2.55, or is fully disclosable on its face,
or has been prepared by the Bureau of Prisons. Any Bureau of Prisons
documents in a parole file are duplicates of records in the inmate's
institutional file. Before referring these documents to the Bureau of
Prisons (BOP), the Commission will ask the requestor whether he also
wants the BOP documents in his parole file processed.
(1) Requests that are only for a copy of the tape recording of a
hearing will be processed ahead of requests seeking multiple documents
from the Parole Commission file (priority processing). A requester may
limit the scope of the request to a tape recording only (or to a tape
recording and/or up to two documents) and thereby qualify for priority
[[Page 146]]
processing. For example, a request for the tape recording and the
examiner's summary of a hearing qualifies for priority processing.
(2) [Reserved]
(c) Exemptions to disclosure. A document or segregable portion
thereof may be withheld from disclosure to the extent it contains
material exempt from disclosure under the Freedom of Information Act. 5
U.S.C. 552(b)(1)-(9).
(d) Specification of documents withheld. Documents that are withheld
pursuant to paragraph (c) of this section shall be identified for the
requester together with the applicable exemption for withholding each
document or portion thereof. In addition, the requester must be informed
of the right to appeal any non-disclosure to the Office of the Chairman.
(e) Hearing record. Upon request by the prisoner or parolee
concerned, the Commission shall make available a copy of any verbatim
record (e.g., tape recording) which it has retained of a hearing,
pursuant to 18 U.S.C. 4208(f).
(f) Costs. In any case in which billable costs exceed $14.00 (based
upon the provisions and fee schedules as set forth in the Department of
Justice regulation 28 CFR 16.10), requesters will be notified that they
will be required to reimburse the United States for such costs before
copies are released.
(g) Relation to other provisions. Disclosure under this section is
authorized by 28 CFR 16.85 under which the Parole Commission is exempt
from the record disclosure provisions of the Privacy Act of 1974, as
well as certain other provisions of the Act pursuant to 5 U.S.C.
552a(j)(2). Requests submitted under the Freedom of Information Act or
the Privacy Act for the requester's own records will be processed under
this section. In no event will the Commission consider satisfaction of a
request under this section, the Freedom of Information Act, or the
Privacy Act of 1974, to be a prerequisite to an adequate parole hearing
under 18 U.S.C. 4208 (for which disclosure is exclusively governed by
Sec. 2.55 of this part) or to the exercise of a parole applicant's
appeal rights under 18 U.S.C. 4215. Provisions of the Freedom of
Information Act not specifically addressed by these regulations
(including the reading room) are covered by 28 CFR, part 16, subpart A.
(h) Appeals--(1) Appeals to the Chairman. When a request for access
to Parole Commission records or a waiver of fees has been denied in
whole or in part, or when the Commission fails to respond to a request
within the time limits set forth in the FOIA, the requester may appeal
the denial of the request to the Chairman of the Commission within
thirty days from the date of the notice denying the request. An appeal
to the Chairman shall be made in writing and addressed to the Office of
the Chairman, U.S. Parole Commission, 5550 Friendship Boulevard, Suite
420, Chevy Chase, Maryland 20815.
(2) Decision on appeal. A decision affirming in whole or in part the
denial of a request shall include a brief statement of the reason or
reasons for the affirmance, including each FOIA exemption relied upon
and its relation to each record withheld, and a statement that judicial
review of the denial is available in the U.S. district court for the
judicial district in which the requester resides or has his principal
place of business, the judicial district in which the requested records
are located, or in the District of Columbia. If the denial of a request
is reversed on appeal to the Chairman, the requester shall be so
notified and the request shall be processed promptly by Commission staff
in accordance with the Chairman's decision on appeal.
(i) Expedited processing of Requests. (1) The Commission will
provide expedited processing of a request when a requester has
demonstrated a compelling need as defined in this section and has
presented a statement certified by such person to be true and correct to
the best of such person's knowledge and belief. A requester may
demonstrate ``compelling need'' by establishing one of the following:
(i) That failure to obtain the requested records on an expedited
basis could reasonably be expected to pose an imminent threat to the
life or physical safety of an individual; or
(ii) With respect to a request made by a person primarily engaged in
disseminating information, urgency to inform
[[Page 147]]
the public concerning actual or alleged federal government activity.
(2) A determination as to whether to provide expedited processing
shall be made within ten days after the date of the request. However,
the fact of lawful imprisonment in a correctional facility or revocation
of parole shall not be deemed to pose an imminent threat to the life or
physical safety of an individual. The Commission shall process as soon
as practicable any request for records to which it has granted expedited
processing. An administrative appeal of a denial of expedited processing
may be made to the Chairman of the Commission within thirty days from
the date of notice denying expedited processing.
[50 FR 40375, Oct. 3, 1985, as amended at 52 FR 47921, Dec. 17, 1987; 53
FR 24933, July 1, 1988; 53 FR 47187, Nov. 22, 1988; 54 FR 27839, June
30, 1989; 58 FR 51780, Oct. 5, 1993; 62 FR 51602, Oct. 2, 1997]
Sec. 2.57 Special parole terms.
(a) The Drug Abuse Prevention and Control Act, 21 U.S.C. sections
801 to 966, provides that, on conviction of certain offenses, mandatory
``special parole terms'' must be imposed by the court as part of the
sentence. This term is an additional period of supervision which
commences upon completion of any period on parole or mandatory release
supervision from the regular sentence; or if the prisoner is released
without supervision, commences upon such release.
(b) At the time of release under the regular sentence, whether under
full term expiration or under a mandatory release certificate or a
parole certificate, a separate Special Parole Term certificate will be
issued to the prisoner by the Bureau of Prisons.
(c) Should a parolee be found to have violated conditions of release
during supervision under his regular sentence, i.e., before commencement
of the Special Parole Term, he may be returned as a violator under his
regular sentence; the Special Parole Term will follow unaffected, as in
paragraph (a) of this section. Should a parolee violate conditions of
release during the Special Parole Term he will be subject to revocation
on the Special Parole Term as provided in Sec. 2.52, and subject to
reparole or mandatory release under the Special Parole Term.
Notwithstanding the provisions of Sec. 2.52(c), a special parole term
violator whose parole is revoked shall receive no credit for time spent
on parole pursuant to 21 U.S.C. 841(c).
(d) If a prisoner is reparoled under the revoked Special Parole Term
a certificate of parole to Special Parole Term is issued by the
Commission. If the prisoner is mandatorily released under the revoked
``special parole term'' a certificate of mandatory release to Special
Parole Term will be issued by the Bureau of Prisons.
(e) If regular parole or mandatory release supervision is terminated
under Sec. 2.43, the Special Parole Term commences to run at that point
in time. Early termination from supervision from a Special Parole Term
may occur as in the case of a regular parole term, except that the time
periods considered shall commence from the beginning of the Special
Parole Term.
[42 FR 39809, Aug. 5, 1977, as amended at 44 FR 3410, Jan. 16, 1979.
Redesignated at 44 FR 26551, May 4, 1979, as amended at 54 FR 11689,
Mar. 21, 1989]
Sec. 2.58 Prior orders.
Any order of the United States Board of Parole entered prior to May
14, 1976, including, but not limited to, orders granting, denying,
rescinding or revoking parole or mandatory release, shall be a valid
order of the United States Parole Commission according to the terms
stated in the order.
[42 FR 39809, Aug. 5, 1977. Redesignated at 44 FR 26551, May 4, 1979]
Sec. 2.59 Designation of a Commissioner to act as a hearing examiner.
The Chairman may designate a Commissioner, with the Commissioner's
consent, to serve as a hearing examiner on specified hearing dockets.
The Commissioner who serves as a hearing examiner may not vote in the
same proceeding as a Commissioner.
[60 FR 40094, Aug. 7, 1995]
Sec. 2.60 Superior program achievement.
(a) Prisoners who demonstrate superior program achievement (in
addition
[[Page 148]]
to a good conduct record) may be considered for a limited advancement of
the presumptive date previously set according to the schedule below.
Such reduction will normally be considered at an interim hearing or pre-
release review. It is to be stressed that a clear conduct record is
expected; this reduction applies only to cases with documented sustained
superior program achievement over a period of 9 months or more in
custody.
(b) Superior program achievement may be demonstrated in areas such
as educational, vocational, industry, or counselling programs, and is to
be considered in light of the specifics of each case. A report from the
Bureau of Prisons based upon successful completion of a residential
substance abuse program of at least 500 hours will be given prompt
review by the Commission for a possible advancement under this section.
(c) Upon a finding of superior program achievement, a previously set
presumptive date may be advanced. The normal maximum advancement
permissible for superior program achievement during the prisoner's
entire term shall be as set forth in the following schedule. It is the
intent of the Commission that this maximum be exceeded only in the most
clearly exceptional cases.
(d) Partial advancements may be given (for example, a case with
superior program achievement during only part of the term or a case with
both superior program achievement and minor disciplinary infraction(s)).
Advancements may be given at different times; however, the limits set
forth in the following schedule shall apply to the total combined
advancement.
(e) Schedule of Permissible Reductions for Superior Program
Achievement.
------------------------------------------------------------------------
Total months required by original
presumptive date Permissible reduction
------------------------------------------------------------------------
14 months or less......................... Not applicable.
15 to 22 months........................... Up to 1 month.
23 to 30 months........................... Up to 2 months.
31 to 36 months........................... Up to 3 months.
37 to 42 months........................... Up to 4 months.
43 to 48 months........................... Up to 5 months.
49 to 54 months........................... Up to 6 months.
55 to 60 months........................... Up to 7 months.
61 to 66 months........................... Up to 8 months.
67 to 72 months........................... Up to 9 months.
73 to 78 months........................... Up to 10 months.
79 to 84 months........................... Up to 11 months.
85 to 90 months........................... Up to 12 months.
91 plus months............................ Up to 13 months.\1\
------------------------------------------------------------------------
\1\ Plus up to 1 additional month for each 6 months or fraction thereof,
by which the original date exceeds 96 months.
(f) For cases originally continued to expiration, the statutory good
time date (calculated under 18 U.S.C. 4161) will be used for computing
the maximum reduction permissible and as the base from which the
reduction is to be subtracted for prisoners serving sentences of less
than five years. For prisoners serving sentences of five or more, the
two-thirds date (calculated pursuant to 18 U.S.C. 4206(d)) will be used
for these purposes. If the prisoner's presumptive release date has been
further reduced by extra good time (18 U.S.C. 4162) and such reduction
equals or exceeds the reduction applicable for superior program
achievement, the Commission will not give an additional reduction for
superior program achievement.
[44 FR 55004, Sept. 24, 1979; 44 FR 59527, Oct. 16, 1979, as amended at
49 FR 26580, June 28, 1984; 61 FR 4351, Feb. 6, 1996]
Sec. 2.61 Qualifications of representatives.
(a) A prisoner or parolee may select any person to appear as his or
her representative in any proceeding, and any representative will be
deemed qualified unless specifically disqualified under paragraph (b) or
(c) of this section. However, an examiner or examiner panel may bar an
otherwise qualified representative from participating in a particular
hearing, provided good cause for such action is found and stated in the
record (e.g., willfully disruptive conduct during the hearing by
repeated interruption or use of abusive language). In certain
situations, good cause may be found in advance of the hearing (e.g.,
that the proposed representative is a prisoner in disciplinary
segregation whose presence at the hearing would pose a risk to security,
or has a personal interest in the case which appears to conflict with
that of the parole applicant).
(b) The Commission may disqualify any representative from appearing
before it for up to a five-year period if,
[[Page 149]]
following a hearing, the Commission finds that the representative has
engaged in any conduct which demonstrates a clear lack of personal
integrity or fitness to practice before the Commission (including, but
not limited to, deliberate or repetitive provision of false information
to the Commission, or solicitation of clients on the strength of
purported personal influence with U.S. Parole Commissioners or staff).
(c)(1) In addition to the prohibitions contained in 18 U.S.C. 207,
no former employee of any Federal criminal justice agency (in either the
Executive or Judicial Branch of the Government) with the exception of
the Federal Defender Service, shall be qualified to act as a
representative for hire in any case before the Commission for one year
following termination of Federal employment. However, such persons may
be employed by, or perform consulting services for, a private firm or
other organization providing representation before the agency, to the
extent that such employment or service does not include the performance
of any representational act before the Commission.
(2) No prisoner or parolee may serve as a representative before the
Commission, at the hire of individual clients, in any case.
[48 FR 14377, Apr. 4, 1983, as amended at 48 FR 44528, Sept. 29, 1983]
Sec. 2.62 Rewarding assistance in the prosecution of other offenders; criteria and guidelines.
(a) The Commission may consider as a factor in the parole release
decision-making a prisoner's assistance to law enforcement authorities
in the prosecution of other offenders.
(1) The assistance must have been an important factor in the
investigation and/or prosecution of an offender other than the prisoner.
Other significant assistance (e.g., providing information critical to
prison security) may also be considered.
(2) The assistance must be reported to the Commission in sufficient
detail to permit a full evaluation. However, no promises, express or
implied, as to a Parole Commission reward shall be given any weight in
evaluating a recommendation for leniency.
(3) The release of the prisoner must not threaten the public safety.
(4) The assistance must not have been adequately rewarded by other
official action.
(b) If the assistance meets the above criteria, the Commission may
consider providing a reduction of up to one year from the presumptive
parole date that the Commission would have deemed warranted had such
assistance not occurred. If the prisoner would have been continued to
the expiration of sentence, any reduction will be taken from the actual
date of the expiration of the sentence. Reductions exceeding the one
year limit specified above may be considered only in exceptional
circumstances.
(c) In the case of an eligible DC Code prisoner whose assistance
meets the criteria of this section, the Commission may consider
deducting a point under Category V of the Point Assignment Table at
Sec. 2.80, in addition to any other deduction for positive program
achievement, when considering such prisoner for parole. In the case of a
DC Code prisoner with an unserved minimum term, the Commission may
consider filing an application under Sec. 2.76 for a reduction of up to
one-third of such term less applicable good time.
[52 FR 44389, Nov. 19, 1987. Redesignated at 63 FR 39176, July 21, 1998,
as amended at 64 FR 5613, Feb. 4, 1999]
Sec. 2.63 Quorum.
Any Commission action authorized by law may be taken on a majority
vote of the Commissioners holding office at the time the action is
taken.
[61 FR 55743, Oct. 29, 1996. Redesignated at 63 FR 39176, July 21, 1998]
Sec. 2.64 Youth Corrections Act.
(a) The provisions of this section only apply to offenders serving
sentences imposed under former 18 U.S.C. section 5010 (b) and (c).
(b) Approval of program plans. (1) The criteria outlined in
paragraph (d) of this section (on determining successful response to
treatment) shall be considered in determining whether a proposed program
plan will effectively reduce
[[Page 150]]
the risk to the public welfare presented by the YCA prisoner's release.
(2) If the prisoner's program plan has not already been approved by
the Commission, the examiner panel shall be given the plan at a hearing
for review and approval. The examiners shall indicate their approval or
disapproval of the program plan (with relevant comments and
recommendations) in the hearing summary.
(3) If the examiners consider the plan inadequate, they will discuss
their concerns with institutional staff. If there is still a
disagreement on the plan, the case will be referred by the Commission's
regional administrator to the Bureau's regional correctional programs
administrator with the recommended changes. Unresolved disputes
concerning the adequacy of the program plan shall be decided by the
Regional Commissioner and the Regional Director of the Bureau of
Prisons. The Regional Commissioner shall render the final decision on
approving or disapproving each program plan on behalf of the Commission.
Once the program plan has been approved, subsequent approvals are not
necessary, unless significant modifications are made by institutional
staff.
(c) Parole hearings and progress reports. (1) Initial hearings shall
be conducted in accordance with Secs. 2.12 and 2.13. The examiner panel
will discuss with the prisoner and a staff member who is knowledgeable
about the case the program plan and the importance of good conduct and
program participation is setting the release date.
(2) An interim hearing must be scheduled for an inmate every nine
months if the inmate is serving a sentence of less than seven years. If
the inmate is serving a sentence of seven years or more, the interim
hearing must be scheduled every twelve months. If the inmate has been
continued to the expiration of his sentence, and he has less than twelve
months remaining to be served prior to his release or his transfer to a
community treatment center, no further hearing is required. In addition,
within 60 days of receipt of any special progress report from the warden
recommending parole, the prisoner shall be scheduled for a special
interim hearing, unless the recommendation can be timely considered at a
regularly scheduled interim hearing. An institutional staff member who
has personal knowledge of the case shall be present to assist the
examiners in their evaluation of the prisoner's conduct, program
performance, and response to treatment.
(3) After any interim hearing or review on the record, the
Commission may advance the presumptive release date, let the date stand,
or retard/rescind the date if the prisoner has committed disciplinary
infractions or new criminal conduct.
(4) An interim hearing will not be scheduled after receipt of a
progress report, if the Commission decides on the record to parole the
prisoner as soon as a release plan is approved (normally within 60 days
of the decision).
(5) The institution shall send a progress report to the Commission:
(i) No more than 60 days before each interim hearing;
(ii) Upon determining that a prisoner should be recommended for
parole; and
(iii) Before presumptive parole date to allow for the pre-release
record review under Sec. 2.14(b).
The warden may forward progress reports to the Commission at other times
in his discretion. Progress reports shall also be sent to the Commission
every six months for prisoners who have waived interim hearings to
enable the Commission to verify that these prisoners have satisfied the
conditions of securing their release on an alternative parole date
granted under the former YCA compliance plan (i.e., completion of the
program plan) or the normal presumptive release date (i.e., obedience to
institutional rules).
(6) For prisoners granted earlier parole dates under former
compliance plans in Watts v. Bleaski: A prisoner may waive interim
hearings under this section, in which case he would retain an
alternative parole date previously granted to him or a presumptive
parole date granted as a result of a finding that the prisoner had
responded to treatment. A prisoner who waives an interim hearing under
this section may, at any time, re-apply for the hearing and be
considered under this section in accordance with the application/waiver
provisions at Sec. 2.11. The
[[Page 151]]
Commission will not review the program plans for prisoners who waive
interim hearings pursuant to this paragraph, unless the prisoner
subsequently is scheduled for a hearing to consider new criminal conduct
or a rule infraction and a modification of the original program plan
appears warranted due to the prisoner's new criminal offense or
infraction. If the prisoner is scheduled for a hearing that may not be
waived (e.g., an interim hearing where there has been a finding of a
disciplinary infraction since the last hearing, or any hearing scheduled
pursuant to Sec. 2.20 (b) through (f), this section will be applied at
such hearing.
(7) Warden's recommendation. Based on the completion of the program
by the prisoner, and the quality of effort demonstrated by the prisoner
in completing the plan, the warden will recommend to the Commission a
conditional release date for its consideration. This recommendation
shall be accompanied by a report on the prisoner's participation and
level of achievement in different aspects of his program.
(d) Criteria for finding successful response to treatment programs.
(1) In determining whether a prisoner has successfully ``responded to
treatment'' the Commission shall examine whether the prisoner has shown
that he has received sufficient corrective training, counseling,
education, and therapy that the public would not be endangered by his
release. See former 18 U.S.C. 5006(f) (definition of ``treatment'' under
the YCA). The Bureau of Prisons shall assist the Commission in this
determination by informing the Commission when the prisoner has
completed his program plan and by advising the Commission of the quality
of effort demonstrated by the prisoner in completing the plan.
(2) In determining the extent of a prisoner's positive response to
treatment, the Commission shall examine the degree by which the prisoner
has increased the likelihood that his release would not jeopardize
public welfare through his program performance and conduct record. See
18 U.S.C. 4206(a)(2). The starting report for the analysis of a
prisoner's response to treatment will be the original parole prognosis
reached by the use of the salient factor score, and an evaluation of the
nature of the prisoner's prior criminal history and other
characteristics of the prisoner. The nature of the current offense may
also be considered in determining the risk to the public welfare
presented by the prisoner's release. The Commission will then proceed to
evaluate whether the prisoner's program participation and institutional
conduct has improved the original risk prognosis and evidences an
alteration of his valued system, including an understanding of the
wrongfulness of his past criminal conduct. For those prisoners who have
exhibited serious or violent criminal behavior, the Commission will
exercise more caution in making a finding that the prisoner has
responded to treatment to the degree that he should be released.
(3) With regard to program performance, significant weight will be
given to the following factors in determining a prisoner's response to
treatment. This is not intended as an exhaustive list.
(i) Vocational training: Where the inmate originally had few job
skills, the acquisition of a marketable job skill through vocational
training or an apprenticeship program.
(ii) Education: Participation in educational programs to acquire an
educational level at least the level of a high school graduate.
(iii) Psychological counseling and therapy: Where the prisoner's
behavior has shown that he may be affected by personality disorders or a
mental illness that has hampered his ability to lead a law-abiding life,
or that he may otherwise benefit from such programs, participation in
psychological and/or other specialized programs which lead to a judgment
by the therapist/counselor that the prisoner has significantly improved
his ability to obey the law and favorably modified his value system.
Participation in these programs will normally be required for a
significant advancement of the presumptive release date for a prisoner
who has either committed or attempted a crime of violence.
(iv) Drug/alcohol abuse programs: Where the prisoner has a history
of drug/alcohol abuse, participation in a
[[Page 152]]
drug/alcohol abuse program which leads to the judgment by the therapist/
counselor that there is a significant likelihood that the prisoner will
not revert to drug/alcohol abuse and has thereby significantly improved
his ability to obey the law.
(v) Work: Assuming the prisoner is physically and mentally able to
do so and is not otherwise engaged in an institutional activity which
prevents him from obtaining a job, participation in a job on a regular
basis so as to demonstrate a stable life pattern and a favorable
modification of his value system.
(4) Prison misconduct (i.e., disobedience to institutional rules,
escape) and new criminal conduct in the institution shall be considered
in the decision as to whether (or to what degree) a prisoner has
successfully responded to treatment. The rescission guidelines of 2.36
shall be used in retarding or rescinding the original presumptive
release date set according to the guidelines and the factors described
in 18 U.S.C. 4206. If the original presumptive date has been advanced
based on response to treatment, the rescission guidelines may also be
used to retard or rescind the new date to maintain institutional
discipline, if the misconduct is not deemed serious enough to affect the
decision that the prisoner has responded to treatment. But misconduct
subsequent to the advancement of a release date based on a finding of
response to treatment may also result in a reversal of that finding and
the cancellation of any advancement of the original presumptive release
date.
(e) Setting the parole date (balancing section 4206 factors with
response to treatment). At any hearing or review on the record, the
presumptive release date may be advanced if it is determined that the
prisoner has responded to a sufficient degree to his treatment programs.
The amount of the advancement should be proportional to the degree of
response evidenced by the prisoner. In making the advancement, no rule
restricting the amount of the reduction--whether based on the guidelines
(Sec. 2.20) or the rule on superior program achievement (Sec. 2.60)--
shall be used. The decision will be the result of a case-by-case
evaluation in which response to treatment programs, the seriousness of
the offense, and the original parole prognosis are all weighed by the
Commission with no one factor capable of excluding all others.
(f) Parole violators. Parole violators returned to an institution
following a local revocation hearing shall normally be considered for
reparole under this section at a hearing within six months of their
arrival at the institution.
(g) Early termination from supervision. (1) A review of the YCA
parolee's file will be conducted at the conclusion of each year of
supervision (following receipt of the annual progress report--Form F-3)
and six months prior to the expiration of his sentence (after receipt of
the final report).
(2) A YCA parolee shall not be continued on supervision beyond the
time periods specified in the early termination guidelines (Sec. 2.43),
unless case-specific factors indicate further supervision is warranted.
The guidelines at Sec. 2.43 shall not be routinely used to deny early
discharge to a YCA parolee who has yet to complete two (or three) years
of clean supervision.
(3) The Commission shall consider the facts and circumstances of
each YCA parolee's case, focusing on the risk he poses to the public and
the benefit he may obtain from further supervision. The nature of the
offense and parolee's past criminal record shall be taken into account
only to evaluate the risk that the parolee may still pose to the public.
(4) In denying early discharge, the Commission shall inform the
probation office by letter (with a copy to the YCA parolee) of the
reasons for continued supervision. The reasons should pertain, whenever
possible, to the facts and circumstances of the YCA parolee's case. If
there are no case-specific factors which indicate that discharge should
be either granted to denied and further supervision appears warranted,
the Commission may inform the YCA parolee that he is continued on
supervision because of its experience with similarly situated offenders.
[53 FR 49654, Dec. 9, 1988, as amended at 55 FR 289, Jan. 4, 1990.
Redesignated at 63 FR 39176, July 21, 1998]
[[Page 153]]
Sec. 2.65 Paroling policy for prisoners serving aggregate U.S. and D.C. Code sentences.
(a) Applicability. This regulation applies to all prisoners serving
any combination of U.S. and D.C. Code sentences that have been
aggregated by the U.S. Bureau of Prisons. Such individuals are
considered for parole on the basis of a single parole eligibility and
mandatory release date on the aggregate sentence. Pursuant to Sec. 2.5,
every decision made by the Commission, including the grant, denial, and
revocation of parole, is made on the basis of the aggregate sentence.
(b) Basic policy. The Commission shall apply the guidelines at
Sec. 2.20 to the prisoner's U.S. Code crimes, and the guidelines of the
District of Columbia Board of Parole to the prisoner's D.C. Code crimes.
(c) Determining the federal guideline range. The Commission shall
first consider the U.S. Code offenses pursuant to the guidelines at
Sec. 2.20, and shall determine the appropriate number of months to be
served (the prisoner's ``federal time''). The Commission shall deem the
``federal time'' to have commenced with the prisoner's initial
commitment on the current aggregate sentence, including jail time.
(d) Decisions above the federal guideline range. The ``federal
time'' thus determined may be a decision within, below or above the
federal guidelines, but it shall not exceed the limit of the U.S. Code
sentence, i.e., the number of months that would be required by the
statutory release date if the U.S. Code sentence is less than five
years, or the two-thirds date if the U.S. Code sentence is five years or
more. The D.C. Code criminal behavior may not be used as an aggravating
offense factor, but may be used as predictive basis for exceeding the
federal guideline range to account for the actual degree and/or
seriousness of risk.
(e) Scheduling the D.C. parole hearing. The Commission shall then
schedule a D.C. parole hearing to be conducted not later than four
months prior to the parole eligibility date, or the expiration of the
``federal time,'' whichever is later. At the D.C. parole hearing the
Commission shall apply the point score system of the D.C. Board of
Parole, pursuant to the regulations of the D.C. Board of Parole, to
determine the prisoner's suitability for release on parole.
(f) Granting parole. In determining whether or not to grant parole
pursuant to the point score system of the D.C. Board of Parole, and the
length of any continuance for a rehearing if parole is denied, the
Commission shall presume that the eligible prisoner has satisfied basic
accountability for the D.C. Code offense behavior. However, the
Commission retains the authority to consider any unusual offense
circumstances pursuant to 28 DCMR 204.22 to deny parole despite a
favorable point score, and to set a rehearing date beyond the ordinary
schedule. The Commission shall also consider whether the totality of the
prisoner's offense behaviors (U.S. and D.C. Code) warrants a continuance
to reflect the true seriousness or the degree of the risk that the
release of the prisoner would pose for the public welfare. Nonetheless,
the Commission shall not deny parole or order a continuance, solely on
the ground of punishment for the U.S. Code offenses standing alone, or
on grounds that have been adequately accounted for in a decision to
exceed the federal guideline range.
(g) Hearings. The Commission shall, in accordance with Sec. 2.12 of
these regulations, conduct an initial hearing to determine the federal
time. This portion of the decision shall be subject to appeal pursuant
to Sec. 2.26 of these regulations. A D.C. parole hearing to determine
the prisoner's suitability for parole under the D.C. guidelines shall be
conducted as ordered at the initial hearing. Prior to the D.C. parole
hearing, statutory interim hearings shall be conducted pursuant to
Sec. 2.14 of these regulations, including an interim hearing at
eligibility on the aggregate sentence if no other interim hearing would
be held. After the D.C. parole hearing, rehearings shall be conducted
pursuant to the rules and policy guidelines of the D.C. Board of Parole,
if release on parole is not granted.
(h) Revocation decisions. Violations of parole are violations on the
aggregate sentence, and a parole violation warrant is therefore issued
under the authority of the aggregate sentence. With regard to the
reparole decision, the
[[Page 154]]
Commission shall follow the guidelines at Sec. 2.21 of these rules, but
rehearings shall be scheduled according to the guidelines of the D.C.
Board of Parole.
(i) Forfeiture of street time. All time on parole shall be forfeited
if required under Sec. 2.52(c) of these regulations. If not, the
Commission shall divide the total time on parole (street time) according
to the proportional relationship of the D.C. sentence to the U.S.
sentence, and shall order the forfeiture of the portion corresponding to
the D.C. sentence pursuant to D.C. Code 24-206(a). For example, if the
prisoner is serving a two-year D.C. Code sentence and a three-year U.S.
Code sentence, the D.C. sentence is two-fifths, or 40 percent, of the
total aggregate sentence. If he was on parole 100 days, he therefore
forfeits 40 days. ``Street time'' is measured from the date of release
on parole to the execution of the warrant or confinement on other
charges.
[54 FR 27842, June 30, 1989, as amended at 57 FR 41395, 41396, Sept. 10,
1992. Redesignated at 63 FR 39176, July 21, 1998]
Sec. 2.66 Expedited Revocation Procedure.
(a) In addition to the actions available to the Commission under
Sec. 2.47(a) and (b), and under Sec. 2.48, the Commission may offer an
alleged parole violator an opportunity to accept responsibility for his
violation behavior, to waive a revocation hearing, and to accept the
sanction proposed by the Commission in the Notice of Eligibility for
Expedited Revocation Procedure that is sent to the alleged parole
violator.
(b) The following cases may be considered under the expedited
revocation procedure:
(1) Cases in which the alleged parole violator has been given a
preliminary interview under Sec. 2.48, and the alleged violation
behavior would be graded Category One or Category Two;
(2) Cases in which the alleged violator has been given a preliminary
interview under Sec. 2.48 and the proposed decision is continue to
expiration of sentence, regardless of offense category; and
(3) Cases in which an alleged violator has received a dispositional
review under Sec. 2.47, and the Commission determines that conditional
withdrawal of the warrant would be appropriate, but forfeiture of street
time is deemed necessary to provide an adequate period of supervision.
(c) The alleged violator's consent shall not be deemed to create an
enforceable agreement with respect to any action the Commission is
authorized to take by law or regulation, or to limit in any respect the
normal statutory consequences of a revocation of parole or mandatory
release.
[63 FR 25770, May 11, 1998. Redesignated at 63 FR 39176, July 21, 1998]
Subpart B--Transfer Treaty Prisoners and Parolees
Sec. 2.68 Prisoners transferred pursuant to treaty.
(a) Applicability, jurisdiction and statutory interpretation. (1)
Prisoners transferred pursuant to treaty (transferees) who committed
their offenses on or after November 1, 1987, shall receive a special
transferee hearing pursuant to the procedures found in this section and
18 U.S.C. 4106A. Transferees who committed their offenses prior to
November 1, 1987, are immediately eligible for parole and shall receive
a parole hearing pursuant to procedures found at 28 CFR 2.13. The Parole
Commission shall treat the foreign conviction as though it were a lawful
conviction in a United States District Court.
(2) The jurisdiction of the Commission to set a release date and
periods and conditions of supervised release extends until the
transferee is released from prison or the transferee's case is otherwise
transferred to a district court pursuant to an order of the Commission.
(3) It is the Commission's interpretation of 18 U.S.C. 4106A that
every transferee is entitled to a release date determination by the
Commission after considering the applicable sentencing guidelines in
effect at the time of the hearing. Upon release from imprisonment the
transferee may be required to serve a period of supervised release
pursuant to section 5D1.2 of the sentencing guidelines. The combination
of the period of imprisonment that results from the release date set by
the
[[Page 155]]
Commission and the period of supervised release shall not exceed the
full term of the sentence imposed by the foreign court. The combined
periods of imprisonment and supervised release may be less than the full
term of the sentence imposed by the foreign court unless the applicable
treaty is found to require otherwise.
(4) The applicable offense guideline provision is determined by
selecting the offense in the U.S. Code that is most similar to the
offense for which the transferee was convicted in the foreign court. In
so doing, the Commission considers itself required by law and treaty to
respect the offense definitions contained in the foreign criminal code
under which the prisoner was convicted, as well as the official
documents supplied by the foreign court.
(5) The release date that is determined by the Commission under 18
U.S.C. 4106A(b)(1)(A) is a prison release determination and does not
represent the imposition of a new sentence for the transferee. However,
the release date shall be treated by the Bureau of Prisons as if it were
the full term date of a sentence for the purpose of establishing a
release date pursuant to 18 U.S.C. 4105(c)(1). The Bureau of Prisons
release date shall supersede the release date established by the Parole
Commission under 18 U.S.C. 4106A and shall be the date upon which the
transferee's period of supervised release commences. If the Commission
has ordered ``continue to expiration,'' the 4106A release date is the
same as the full term date of the foreign sentence. It is the
Commission's interpretation of 18 U.S.C. 4105(c)(1) that the deduction
of service credits in either case does not operate to reduce the foreign
sentence or otherwise limit the Parole Commission's authority to
establish a period of supervised release extending from the date of
actual release from prison to the full term date of the foreign
sentence.
(6) If the Commission sets a release date under 18 U.S.C.
4106A(b)(1)(A) that is earlier than the mandatory release date
established by the Bureau of Prisons under 18 U.S.C. 4105(c)(1), then
the release date set by the Commission controls. If the release date set
by the Commission under 18 U.S.C. 4106A(b)(1)(A) is equal to or later
than the mandatory release date established by the Bureau of Prisons
under 18 U.S.C. 4105(c)(1), then the mandatory release date established
by the Bureau of Prisons controls.
(7) It is the Commission's interpretation of 18 U.S.C. 4106A that
U.S. Code provisions for mandatory minimum terms of imprisonment and
supervised release, as well as sentencing guideline provisions
implementing such U.S. Code requirements (e.g., section 5G1.1(b) of the
sentencing guidelines), were not intended by Congress to be applicable
in an 18 U.S.C. 4106A(b)(1)(A) determination. Alternatively, it is the
Commission's position that there is good cause in every transfer treaty
case for a departure from any statutorily required minimum sentence
provision in the sentencing guidelines, including section 5G1.1(b) of
the sentencing guidelines, because Congress did not enact mandatory
sentence laws with transferees in mind. Thus, in every transfer treaty
case, the release date will be determined through an exercise of
Commission discretion, according to the sentencing guideline range that
is derived from a case-specific ``similar offense'' determination,
rather than by reference to any provision concerning mandatory minimum
sentences of imprisonment or terms of supervised release.
(b) Interview upon entry. Following the transferee's entry into the
United States, the transferee shall, without unnecessary delay, be
interviewed by a United States Probation Officer who shall inform the
transferee of his rights under this regulation. The transferee shall be
given the appropriate forms for appointment of counsel pursuant to 18
U.S.C. 3006(A) at the interview if appointment of counsel is requested.
(c) Postsentence report. A postsentence investigation report, which
shall include an estimated sentencing classification and sentencing
guideline range, shall be prepared by the probation office in the
district of entry (or the transferee's home district). Disclosure of the
postsentence report shall be made as soon as the report is completed, by
delivery of a copy of the report to the transferee and his or her
counsel (if any). Confidential material
[[Page 156]]
contained in the postsentence investigation report may be withheld
pursuant to the procedures of 18 U.S.C. 4208(c). Copies of all documents
provided by the transferring country relating to the transferee shall be
appended to the postsentence report when disclosed to the transferee and
when transmitted to the Commission.
(d) Opportunity to object. The transferee (or counsel) shall have
thirty calendar days after disclosure of the postsentence report to
transmit any objections to the report he or she may have, in writing, to
the Commission with a copy to the probation officer. The Commission
shall review the objections and may request that additional information
be submitted by the probation officer in the form of an addendum to the
postsentence report. Any disputes of fact or disputes concerning
application of the sentencing guidelines shall be resolved at the
special transferee hearing.
(e) Special transferee hearing. A special transferee hearing shall
be conducted within 180 days from the transferee's entry into the United
States, or as soon as is practicable following completion of the
postsentence report along with any corrections or addendum to the report
and appointment of counsel for an indigent transferee.
(1) Waivers. The transferee may waive the special transferee hearing
on a form provided for that purpose, and the Commission may either:
(A) Set a release date that falls within 60 days of receipt of the
waiver and establish a period and conditions of supervised release; or
(B) Reject the waiver and schedule a hearing.
(2) Short-term cases. In the case of a transferee who has less than
six months from the date of his entry into the United States to his
release date as calculated by the Bureau of Prisons under 18 U.S.C.
4105, the Commission may, without conducting a hearing or awaiting a
waiver, set a release date and a period and conditions of supervised
release. In such cases, the period of supervised release shall not
exceed the minimum necessary to satisfy the applicable sentencing
guideline (but may extend to the full-term of the foreign sentence if
such period is shorter than the minimum of applicable sentencing
guideline). The transferee may petition the Commission for a more
favorable decision within 60 days of the Commission's determination, and
the Commission may act upon the petition regardless of whether or not
the transferee has been released from prison.
(f) Representation. The transferee shall have the opportunity to be
represented by counsel (retained by the transferee or, if financially
unable to retain counsel, counsel shall be provided pursuant to 18
U.S.C. 3006(A)), at all stages of the proceeding set forth in this
section. The transferee may select a non-lawyer representative as
provided in 28 CFR 2.61.
(g) The decisionmaking criteria. The Commission shall apply the
guidelines promulgated by the United States Sentencing Commission, as
though the transferee were convicted in a United States District Court
of a statutory offense most nearly similar to the offense of which the
transferee was convicted in the foreign court. The Commission shall take
into account the offense definition under foreign law, the length of the
sentence permitted by that law, and the underlying circumstances of the
offense behavior, to establish a guideline range that fairly reflects
the seriousness of the offense behavior committed in the foreign
country.
(h) Hearing procedures. Special transferee hearings shall be
conducted by a hearing examiner. Each special transferee hearing shall
be recorded by a certified court reporter and the proceedings shall be
transcribed if the determination of the Commission is appealed. The
following procedures shall apply at a special transferee proceeding,
unless waived by the transferee:
(1) The examiner shall inquire whether the transferee and his
counsel have had an opportunity to read and discuss the postsentence
investigation report and whether the transferee is prepared to go
forward with the hearing. If not, the transferee shall be given the
opportunity to continue the hearing.
(2) The transferee shall have an opportunity to present documentary
evidence and to testify on his own behalf.
[[Page 157]]
(3) Oral testimony of interested parties may be taken with prior
advance permission of the Regional Commissioner.
(4) The transferee and his counsel shall be afforded the opportunity
to comment upon the guideline estimate contained in the postsentence
investigation report (and the addendum, if any), and to present
arguments and information relating to the Commission's final guideline
determination and decision.
(5) Disputes of material fact shall be resolved by a preponderance
of the evidence, with written recommended findings by the examiner
unless the examiner determines, on the record, not to take the
controverted matter into account.
(6) The transferee shall be notified of the examiner's recommended
findings of fact, and the examiner's recommended determination and
reasons therefore, at the conclusion of the hearing. The case shall
thereafter be reviewed by the Executive Hearing Examiner pursuant to
Sec. 2.23, and the Commission shall make its determination upon a panel
recommendation.
(i) Final decision. (1) The Commission shall render a decision as
soon as practicable and without unnecessary delay. Decisions shall be
made upon a concurrence of two votes of the National Commissioners. The
decision shall set a release date and a period and conditions of
supervised release. If the Commission determines that the appropriate
release date under 18 U.S.C. 4106A is the full term date of the foreign
sentence, the Commission will order the transferee to ``continue to
expiration''.
(2) Whenever the Bureau of Prisons applies service credits under 18
U.S.C. 4105 to a release date established by the Commission, the release
date used by the Bureau of Prisons shall be the date established by the
Parole Commission pursuant to the sentencing guidelines and not a date
that resulted from any adjustment made to achieve comparable punishment
with a similarly-situated U.S. Code offender. The application of service
credits under 18 U.S.C. 4105 shall supersede any previous release date
set by the Commission. The Commission may, for the purpose of
facilitating the application of service credits by the Bureau of
Prisons, reopen any case on the record to clarify the correct release
date to be used, and the period of supervised release to be served.
(3) The Commission may, in its discretion, defer a decision and
order a rehearing, provided that a statement of the reason for ordering
a rehearing is issued to the transferee and the transferee's counsel (if
any).
(4) The Commission's final decision shall be supported by a
statement of reasons explaining:
(i) The similar offense selected as the basis for the Commission's
decision;
(ii) The basis for the guideline range applied; and
(iii) The reason for making a release determination above or below
the guideline range. If the release date is within a guideline range
that exceeds twenty-four months, the Commission shall identify the
reason for the release date selected.
(j) Appeal. The transferee shall be advised of his right to appeal
the decision of the Commission to the United States Court of Appeals
that has jurisdiction over the district in which the transferee is
confined.
(k) Reopening or modification of a determination prior to transfer
of jurisdiction. (1) A hearing and assistance of counsel will be
provided to the transferee whenever a case is reopened under
subparagraphs (2), (3), (4), and (5) below unless:
(i) Waived by the transferee; or
(ii) The action to be taken is favorable and no factual issue must
be resolved.
(2) The Commission may reopen and modify a determination based upon
information which was not previously considered. Such information must,
however, be contained in the record of the foreign sentencing court.
(3) The Commission may reopen and modify a determination of the
terms and conditions of supervised release. Modifications may include
approval or disapproval of the transferee's release plan.
(4) The Commission shall reopen and modify a determination that has
been found on appeal to have been imposed in violation of the law, to
have been
[[Page 158]]
imposed as a result of an incorrect application of the sentencing
guidelines, or to have been unreasonable.
(5) The Commission may reopen and modify a determination upon
consideration of the factors listed in section 5K1.1 of the sentencing
guidelines if the transferee provides substantial assistance to law
enforcement authorities, and that assistance was not previously
considered by the Commission. The Commission will treat a request from a
foreign or a domestic law enforcement authority as the equivalent of a
``motion of the government.''
(6) The Commission may modify a determination based upon a clerical
mistake or other error in accordance with Federal Rules of Criminal
Procedure Rule 36.
(7) The Commission may reopen and modify the release date if it
determines that a circumstance set forth in 18 U.S.C. 3582(c) is
satisfied.
(l) Supervised release. (1) If a period of supervised release is
imposed, the Commission presumes that the recommended conditions of
supervised release in section 5B1.4(a) of the sentencing guidelines, a
condition requiring the transferee to report to the probation office
within 72 hours of release from the custody of the Bureau of Prisons, a
condition that the transferee not commit another Federal, state or local
crime, and a condition that the transferee not possess a firearm or
other dangerous weapon are reasonably necessary in every case. These
conditions, therefore, shall be imposed unless the Commission finds
otherwise. The Commission may also impose special conditions of
supervised release whenever deemed reasonably necessary in an individual
case.
(2) If the transferee is released pursuant to a date established by
the Bureau of Prisons under 18 U.S.C. 4105(c)(1), then the period of
supervised release commences upon the transferee's release from
imprisonment.
[54 FR 27840, June 30, 1989, as amended at 55 FR 39269, Sep. 26, 1990;
58 FR 30705, May 27, 1993; 59 FR 26425, May 20, 1994; 60 FR 18354, Apr.
11, 1995; 61 FR 38570, July 25, 1996; 61 FR 54096, 54097, Oct. 17, 1996;
62 FR 40270, July 28, 1997. Redesignated at 63 FR 39176, July 21, 1998]
Sec. 2.69 [Reserved]
Subpart C--District of Columbia Code: Prisoners and Parolees
Source: 65 FR 45888, July 26, 2000, unless otherwise noted.
Sec. 2.70 Authority and functions of the U.S. Parole Commission with respect to District of Columbia Code offenders.
(a) The U.S. Parole Commission shall exercise authority over
District of Columbia Code offenders pursuant to section 11231 of the
National Capital Revitalization and Self-Government Improvement Act of
1997, Public Law 105-33, 111 Stat. 712, and D.C. Code 24-209. The rules
in this subpart shall govern the operation of the U.S. Parole Commission
with respect to D.C. Code offenders and shall constitute the parole
rules of the District of Columbia, as amended and supplemented pursuant
to section 11231(a)(1) of the Act.
(b) The Commission shall have sole authority to grant parole, and to
establish the conditions of release, for all District of Columbia Code
prisoners who are serving sentences for felony offenses, and who are
eligible for parole by statute, including offenders who have been
returned to prison upon the revocation of parole or mandatory release.
(D.C. Code 24-208). The above authority shall include youth offenders
who are committed to prison for treatment and rehabilitation based on
felony convictions under the D.C. Code. (D.C. Code 24-804(a).)
(c) The Commission shall have authority to recommend to the Superior
Court of the District of Columbia a reduction in the minimum sentence of
a District of Columbia Code prisoner, if the Commission deems such
recommendation to be appropriate. (D.C. Code 24-201(c).)
(d) The Commission shall have authority to grant parole to a
prisoner who is found to be geriatric, permanently incapacitated, or
terminally ill, notwithstanding the minimum term imposed by the
sentencing court. (D.C. Code 24-263 through 267.)
(e) The Commission shall have authority over all District of
Columbia Code felony offenders who have been
[[Page 159]]
released to parole or mandatory release supervision, including the
authority to return such offenders to prison upon an order of
revocation. (D.C. Code 24-206.)
Sec. 2.71 Application for parole.
(a) A prisoner (including a committed youth offender) desiring to
apply for parole shall execute an application form as prescribed by the
Commission. Such forms shall be available at each institution and shall
be provided to a prisoner who is eligible for parole consideration. The
Commission may then conduct an initial hearing or grant an effective
date of parole on the record. A prisoner who receives an initial hearing
need not apply for subsequent hearings.
(b) To the extent practicable, the initial hearing for an eligible
adult prisoner who has applied for parole shall be held at least 180
days prior to such prisoner's date of eligibility for parole. The
initial hearing for a committed youth offender shall be scheduled during
the first 120 days after admission to the institution that is
responsible for developing his rehabilitative program.
(c) A prisoner may knowingly and intelligently waive any parole
consideration on a form provided for that purpose. A prisoner who
declines either to apply for or waive parole consideration shall be
deemed to have waived parole consideration.
(d) A prisoner who waives parole consideration may later apply for
parole and be heard during the next visit of the Commission to the
institution at which the prisoner is confined, provided that the
prisoner has applied for parole at least 60 days prior to the first day
of the month in which such visit of the Commission occurs. In no event,
however, shall such prisoner be heard at an earlier date than that set
forth in paragraph (b) of this section.
Sec. 2.72 Hearing procedure.
(a) Each eligible prisoner for whom an initial hearing has been
scheduled shall appear in person before an examiner of the Commission.
The examiner shall review with the prisoner the guidelines at Sec. 2.80,
and shall discuss with the prisoner such information as the examiner
deems relevant, including the prisoner's offense behavior, criminal
history, institutional record, health status, release plans, and
community support. If the examiner determines that the available file
material is not adequate for this purpose the examiner may order the
hearing to be postponed to the next docket so that the missing
information can be requested.
(b) Parole hearings may be held in District of Columbia facilities
(including District of Columbia contract facilities) and federal
facilities (including federal contract facilities).
(c) A prisoner appearing for a parole hearing in a federal facility
(including federal contract facilities) may have a representative
pursuant to Sec. 2.13(b). A prisoner appearing for a parole hearing in
any other facility shall not be accompanied by counsel or any other
person (except a staff member of the facility), except in such
facilities as the Commission may designate as suitable for the
appearance of representatives.
(d) Prehearing disclosure of file material pursuant to Sec. 2.55
will be available to prisoners and their representatives only in the
case of prisoners confined in federal facilities (including federal
contract facilities).
(e) A victim of a crime, or a representative of the immediate family
of a victim if the victim has died, shall have the right:
(1) To be present at the parole hearings of each offender who
committed the crime, and
(2) To testify and/or offer a written or recorded statement as to
whether or not parole should be granted, including information and
reasons in support of such statement. A written statement may be
submitted at the hearing or provided separately. The prisoner may be
excluded from the hearing room during the appearance of a victim or
representative who gives testimony. In lieu of appearing at a parole
hearing, a victim or representative may request permission to appear
before an examiner (or other staff member), who shall record and
summarize the victim's or representative's testimony. Whenever new and
significant information is provided under this rule, the hearing
examiner will summarize the information at the parole hearing and will
give the prisoner an opportunity to respond.
[[Page 160]]
Such summary shall be consistent with a reasonable request for
confidentiality by the victim or representative.
(f) Attorneys, family members, relatives, friends of the prisoner,
or other interested persons desiring to submit information pertinent to
any prisoner, may do so at any time, but such information must be
received by the Commission at least 30 days prior to a scheduled hearing
in order to be considered at that hearing. Such persons may also request
permission to appear at the offices of the Commission to speak to a
Commission staff member, provided such request is received at least 30
days prior to the scheduled hearing. The purpose of this office visit
will be to supplement the Commission's record with pertinent factual
information concerning the prisoner, which shall be placed in the record
for consideration at the hearing. An office visit at a time other than
set forth in this paragraph may be authorized only if the Commission
finds good cause based upon a written request setting forth the nature
of the information to be discussed. See Sec. 2.22.
(g) A full and complete recording of every parole hearing shall be
retained by the Commission. Upon a request pursuant to Sec. 2.56, the
Commission shall make available to any eligible prisoner such record as
the Commission has retained of the hearing.
(h) Because parole decisions must be reached through a record-based
hearing and voting process, no contacts shall be permitted between any
person attempting to influence the Commission's decision-making process,
and the examiners and Commissioners of the Commission, except as
expressly provided in this subpart.
Sec. 2.73 Parole suitability criteria.
(a) In accordance with D.C. Code 24-204(a), the Commission shall be
authorized to release a prisoner on parole in its discretion after the
prisoner has served the minimum term of the sentence imposed, if the
following criteria are met:
(1) The prisoner has substantially observed the rules of the
institution;
(2) There is a reasonable probability that the prisoner will live
and remain at liberty without violating the law; and
(3) In the opinion of the Commission, the prisoner's release is not
incompatible with the welfare of society.
(b) It is the policy of the Commission with respect to District of
Columbia Code offenders that the minimum term imposed by the sentencing
court presumptively satisfies the need for punishment for the crime of
which the prisoner has been convicted, and that the responsibility of
the Commission is to account for the degree and the seriousness of the
risk that the release of the prisoner would entail. This responsibility
is carried out by reference to the Salient Factor Score and the Point
Assignment Table at Sec. 2.80. However, there may be exceptional cases
in which the gravity of the offense is sufficient to warrant an upward
departure from Sec. 2.80 and denial of parole.
Sec. 2.74 Decision of the Commission.
(a) Following each initial or subsequent hearing, the Commission
shall render a decision granting or denying parole, and shall provide
the prisoner with a notice of action that includes an explanation of the
reasons for the decision. The decision shall ordinarily be issued within
21 days of the hearing, excluding weekends and holidays.
(b) Whenever a decision is rendered within the applicable guideline
established in this subpart, it will be deemed a sufficient explanation
of the Commission's decision for the notice of action to set forth how
the guideline was calculated. If the decision is a departure from the
guidelines, the notice of action shall include the reasons for such
departure.
(c) Relevant issues of fact shall be resolved by the Commission in
accordance with Sec. 2.19(c). All final parole decisions (granting,
denying, or revoking parole) shall be based on the concurrence of two
Commissioner votes, except that three Commissioner votes shall be
required if the decision differs from the decision recommended by the
examiner panel by more than six months. A final decision releasing a
parolee from active supervision shall also be based on the concurrence
of two
[[Page 161]]
Commissioner votes. All other decisions may be based on a single
Commissioner vote, except as expressly provided in these rules.
Sec. 2.75 Reconsideration proceedings.
(a)(1) Prisoners subject to guidelines at Sec. 2.80. (i) In the case
of a prisoner subject to the guidelines at Sec. 2.80, the Commission
may, following an initial or subsequent hearing:
(A) Set an effective parole date within nine months of the date of
the hearing;
(B) Set a presumptive parole date at least ten months but not more
than three years from the date of the hearing;
(C) Continue the prisoner to the expiration of sentence if the
prisoner's mandatory release date is within three years of the date of
the hearing; or
(D) Schedule a reconsideration hearing at three years from the month
of the hearing.
(ii) Exception: If the prisoner's current offense behavior resulted
in the death of a victim and the prisoner is more than three years below
the minimum of the applicable guideline range at the time of the
hearing, the Commission may, in its discretion, schedule a
reconsideration hearing at a later date that does not exceed the minimum
of the applicable guideline range and is not more than five years from
the month of the last hearing.
(2) Prisoners subject to guidelines at the appendix to Sec. 2.80.
(i) In the case of a prisoner subject to the guidelines at the appendix
to Sec. 2.80, if the Commission denies parole, it shall establish an
appropriate reconsideration date in accordance with the provisions of
the appendix to Sec. 2.80. If the prisoner's mandatory release date will
occur before the reconsideration date deemed appropriate by the
Commission pursuant to the appendix to Sec. 2.80, the Commission may
order that the prisoner be released by the expiration of his sentence
less good time (``continue to expiration'').
(ii) The first reconsideration date shall be calculated from the
prisoner's eligibility date, except that in the case of a youth offender
or any prisoner who has waived the initial hearing, the first
reconsideration date shall be calculated from the date the initial
hearing is held. In all cases, any subsequent reconsideration date shall
be calculated from the date of the last hearing. In the case of a waiver
or substantial delay in holding the initial hearing, the Commission may
conduct a combined initial hearing and such rehearings nunc pro tunc as
would otherwise have been held during the delay.
(iii) Notwithstanding the provisions of paragraph (a)(2)(i) of this
section, the Commission shall not set a reconsideration date in excess
of five years from the date of the prisoner's last hearing, nor shall
the Commission continue a prisoner to the expiration of his or her
sentence, if more than five years remains from the date of the last
hearing until the prisoner's scheduled mandatory release.
(b) When a rehearing is scheduled, the prisoner shall be given a
rehearing during the month specified by the Commission, or on the docket
of hearings immediately preceding that month if no docket of hearings is
scheduled for the month specified.
(c) At a reconsideration hearing, the Commission may take any action
that it could take at an initial hearing. The scheduling of a
reconsideration hearing does not imply that parole will be granted at
such hearing.
(d) Prior to a parole reconsideration hearing, the Commission shall
review the prisoner's record, including an institutional progress report
which shall be submitted 60 days prior to the hearing. Based on its
review of the record, the Commission may grant an effective date of
parole without conducting the scheduled in-person hearing.
(e) Notwithstanding a previously established reconsideration
hearing, the Commission may reopen any case for a special
reconsideration hearing, as provided in Sec. 2.28, upon the receipt of
new and significant information concerning the prisoner.
[65 FR 70664, Nov. 27, 2000]
Sec. 2.76 Reduction in minimum sentence.
(a) A prisoner who has served three or more years of the minimum
term of his or her sentence may request the Commission to file an
application with the sentencing court for a reduction in the minimum
term pursuant to D.C. Code 24-201c. The prisoner's request to
[[Page 162]]
the Commission shall be in writing and shall state the reasons that the
prisoner believes such request should be granted. The Commission shall
require the submission of a special progress report before approving
such a request.
(b) Approval of a prisoner's request under this section shall
require the concurrence of a majority of the Commissioners holding
office.
(c) Pursuant to D.C. Code 24-201c, the Commission may file an
application to the sentencing court for a reduction of a prisoner's
minimum term if the Commission finds that:
(1) The prisoner has completed three years of the minimum term
imposed by the court;
(2) The prisoner has shown, by report of the responsible prison
authorities, an outstanding response to the rehabilitative program(s) of
the institution;
(3) The prisoner has fully observed the rules of each institution in
which the prisoner has been confined;
(4) The prisoner appears to be an acceptable risk for parole based
on both the prisoner's pre- and post-incarceration record; and
(5) Service of the minimum term imposed by the court does not appear
necessary to achieve appropriate punishment and deterrence.
(d) If the Commission approves a prisoner's request under this
section, an application for a reduction in the prisoner's minimum term
shall be forwarded to the U.S. Attorney for the District of Columbia for
filing with the sentencing court. If the U.S. Attorney objects to the
Commission's recommendation, the U.S. Attorney shall provide the
government's objections in writing for consideration by the Commission.
If, after consideration of the material submitted, the Commission
declines to reconsider its previous decision, the U.S. Attorney shall
file the application with the sentencing court.
(e) If a prisoner's request under this section is denied by the
Commission, there shall be a waiting period of two years before the
Commission will again consider the prisoner's request, absent
exceptional circumstances.
Sec. 2.77 Medical parole.
(a) Upon receipt of a report from the institution in which the
prisoner is confined that the prisoner is terminally ill, or is
permanently and irreversibly incapacitated by a physical or medical
condition that is not terminal, the Commission shall determine whether
or not to release the prisoner on medical parole. Release on medical
parole may be ordered by the Commission at any time, whether or not the
prisoner has completed his or her minimum sentence. Consideration for
medical parole shall be in addition to any other parole for which a
prisoner may be eligible.
(b) A prisoner may be granted a medical parole on the basis of
terminal illness if:
(1) The institution's medical staff has provided the Commission with
a reasonable medical judgment that the prisoner is within six months of
death due to an incurable illness or disease; and
(2) The Commission finds that:
(i) The prisoner will not be a danger to himself or others; and
(ii) Release on parole will not be incompatible with the welfare of
society.
(c) A prisoner may be granted a medical parole on the basis of
permanent and irreversible incapacitation only if the Commission finds
that:
(1) The prisoner will not be a danger to himself or others because
his condition renders him incapable of continued criminal activity; and
(2) Release on parole will not be incompatible with the welfare of
society.
(d) The seriousness of the prisoner's crime shall be considered in
determining whether or not a medical parole should be granted prior to
completion of the prisoner's minimum sentence.
(e) A prisoner, or the prisoner's representative, may apply for a
medical parole by submitting an application to the institution case
management staff, who shall forward the application, accompanied by a
medical report and any recommendations, within 15 days. The Commission
shall render a decision within 15 days of receiving the application and
report.
(f) A prisoner, the prisoner's representative, or the institution
may request the Commission to reconsider its decision on the basis of
changed circumstances.
[[Page 163]]
(g) Notwithstanding any other provision of this section :
(1) A prisoner who has been convicted of first degree murder or who
has been sentenced for a crime committed while armed under D.C. Code 22-
2903, 22-3202, or 22-3204(b), shall not be eligible for medical parole
(D.C. Code 24-267); and
(2) A prisoner shall not be eligible for medical parole on the basis
of a physical or medical condition that existed at the time the prisoner
was sentenced (D.C. Code 24-262).
Sec. 2.78 Geriatric parole.
(a) Upon receipt of a report from the institution in which the
prisoner is confined that a prisoner who is at least 65 years of age has
a chronic infirmity, illness, or disease related to aging, the
Commission shall determine whether or not to release the prisoner on
geriatric parole. Release on geriatric parole may be ordered by the
Commission at any time, whether or not the prisoner has completed his or
her minimum sentence. Consideration for geriatric parole shall be in
addition to any other parole for which a prisoner may be eligible.
(b) A prisoner may be granted a geriatric parole if the Commission
finds that:
(1) There is a low risk that the prisoner will commit new crimes;
and
(2) The prisoner's release would not be incompatible with the
welfare of society.
(c) The seriousness of the prisoner's crime, and the age at which it
was committed, shall be considered in determining whether or not a
geriatric parole should be granted prior to completion of the prisoner's
minimum sentence.
(d) A prisoner, or a prisoner's representative, may apply for a
geriatric parole by submitting an application to the institution case
management staff, who shall forward the application, accompanied by a
medical report and any recommendations, within 30 days. The Commission
shall render a decision within 30 days of receiving the application and
report.
(e) In determining whether or not to grant a geriatric parole, the
Commission shall consider the following factors (D.C. Code 24-265(c)(1)-
(7)):
(1) Age of the prisoner;
(2) Severity of illness, disease, or infirmities;
(3) Comprehensive health evaluation;
(4) Institutional behavior;
(5) Level of risk for violence;
(6) Criminal history; and
(7) Alternatives to maintaining geriatric long-term prisoners in
traditional prison settings.
(f) A prisoner, the prisoner's representative, or the institution,
may request the Commission to reconsider its decision on the basis of
changed circumstances.
(g) Notwithstanding any other provision of this section:
(1) A prisoner who has been convicted of first degree murder or who
has been sentenced for a crime committed while armed under D.C. Code 22-
2903, 22-3202, or 22-3204(b), shall not be eligible for geriatric parole
(D.C. Code 24-267); and (2) A prisoner shall not be eligible for
geriatric parole on the basis of a physical or medical condition that
existed at the time the prisoner was sentenced (D.C. Code 24-262).
Sec. 2.79 Good time forfeiture.
Although a forfeiture of good time will not bar a prisoner from
receiving a parole hearing, D.C. Code 24-204 permits the Commission to
parole only those prisoners who have substantially observed the rules of
the institution. Consequently, the Commission will consider a grant of
parole for a prisoner with forfeited good time only after a thorough
review of the circumstances underlying the disciplinary infraction(s).
The Commission must be satisfied that the prisoner has served a period
of imprisonment sufficient to outweigh the seriousness of the prisoner's
misconduct.
Sec. 2.80 Guidelines for D.C. Code offenders.
(a) Applicability. This guideline applies to any initial hearing for
an adult prisoner conducted on or after December 4, 2000, and any
rehearing for an adult prisoner who was given an initial hearing on or
after August 5,1998, but before December 4, 2000, and who did not
receive any positive points for disciplinary infractions or negative
points for superior program achievement at
[[Page 164]]
the initial hearing or any rehearing conducted before December 4, 2000.
Any other prisoner will continue to have his case decided under the rule
previously in effect (as set forth in the appendix to this section).
(b) Guidelines. In determining whether an eligible prisoner should
be paroled, the Commission shall apply the guidelines set forth in this
section. The guidelines assign numerical values to pre-and post-
incarceration factors. Decisions outside the guidelines may be made,
where warranted, pursuant to paragraph (n) of this section.
(c) Salient factor score and criminal record. The prisoner's Salient
Factor Score shall be determined by reference to the Salient Factor
Scoring Manual in Sec. 2.20. The Salient Factor Score is used to assist
the Commission in assessing the probability that an offender will live
and remain at liberty without violating the law. The prisoner's record
of criminal conduct (including the nature and circumstances of the
current offense) shall be used to assist the Commission in determining
the probable seriousness of the recidivism that is predicted by the
Salient Factor Score.
(d) Disciplinary infractions. The Commission shall assess whether
the prisoner has been found guilty of committing significant
disciplinary infractions while under confinement for the current
offense.
(e) Program achievement. (1) The Commission shall assess whether the
prisoner has demonstrated ordinary or superior achievement in the area
of prison programs, industries, or work assignments while under
confinement for the current offense. Superior program achievement means
program achievement that is beyond the level that the prisoner might
ordinarily be expected to accomplish. Credit for program achievement may
be granted regardless of whether the guidelines for disciplinary
infractions have been applied for misconduct during the same period. The
guidelines in this section presume that the prisoner will have ordinary
program achievement.
(2) In the case of a prisoner who has declined to participate in
institutional programming, a decision in the upper half of the
applicable guideline range generally will be warranted, except that in
the case of a prisoner who has a base point score of 3 or less, or who
has a criminal record involving violence or sexual offenses and who has
not participated in available programming to address a potential for
criminal behavior of a violent or sexual nature, a decision above the
guidelines may be warranted.
(f) Base point score. Add the applicable points from Categories I-
III of the Point Assignment Table to determine the base point score.
Point Assignment Table
------------------------------------------------------------------------
Categories Points
------------------------------------------------------------------------
CATEGORY I: RISK OF RECIDIVISM (Salient Factor Score)
------------------------------------------------------------------------
10-8 (Very Good Risk)........................................ +0
7-6 (Good Risk).............................................. +1
5-4 (Fair Risk).............................................. +2
3-0 (Poor Risk).............................................. +3
------------------------------------------------------------------------
CATEGORY II: CURRENT OR PRIOR VIOLENCE (Type of Risk)
Note: Use the highest applicable subcategory. If no subcategory is
applicable, score = 0.
------------------------------------------------------------------------
A. Violence in current offense, and any felony violence in +4
two or more prior offenses..................................
B. Violence in current offense, and any felony violence in +3
one prior offense...........................................
C. Violence in current offense............................... +2
D. No violence in current offense and any felony violence in +2
two or more prior offenses..................................
E. Possession of firearm in current offense if current +2
offense is not scored as a crime of violence................
F. No violence in current offense and any felony violence in +1
one prior offense...........................................
------------------------------------------------------------------------
CATEGORY III: DEATH OF VICTIM OR HIGH LEVEL VIOLENCE
Note: Use highest applicable subcategory. If no subcategory is
applicable, score = 0. A current offense that involved high level
violence must be scored under both Category II (A, B, or C) and under
Category III.
------------------------------------------------------------------------
A. Current offense was high level or other violence with +3
death of victim resulting...................................
B. Current offense involved attempted murder, conspiracy to +2
murder, solicitation to murder, or any willful violence in
which the victim survived despite death having been the most
probable result at the time the offense was committed
C. Current offense involved high level violence (other than +1
the behaviors described above)
------------------------------------------------------------------------
BASE POINT SCORE (Total of Categories I-III)
------------------------------------------------------------------------
(g) Definitions and instructions for application of point assignment
table.
(1) Salient factor score means the salient factor score set forth at
Sec. 2.20.
[[Page 165]]
(2) High level violence in Category III means any of the following
offenses--
(i) Murder;
(ii) Voluntary manslaughter;
(iii) Arson of a building in which a person other than the offender
was present or likely to be present at the time of the offense;
(iv) Forcible rape or forcible sodomy (first degree sexual abuse);
(v) Kidnapping, hostage taking, or any armed abduction of a victim
during a carjacking or other offense;
(vi) Burglary of a residence while armed with any weapon if a victim
was in the residence during the offense;
(vii) Obstruction of justice through violence or threats of
violence;
(viii) Any offense involving sexual abuse of a person less than
sixteen years of age;
(ix) Mayhem, malicious disfigurement, or any offense defined as
other violence in paragraph (g)(4) of this section that results in
serious bodily injury as defined in paragraph (g)(3) of this section;
(x) Any offense defined as other violence in paragraph (g)(4) of
this section in which the offender intentionally discharged a firearm;
(3) Serious bodily injury means bodily injury that involves a
substantial risk of death, unconsciousness, extreme physical pain,
protracted and obvious disfigurement, or protracted loss or impairment
of the function of a bodily member, organ, or mental faculty.
(4) Other violence means any of the following felony offenses that
does not qualify as high level violence
(i) Robbery;
(ii) Residential burglary;
(iii) Felony assault;
(iv) Felony offenses involving a threat, or risk, of bodily harm;
(v) Felony offenses involving sexual abuse or sexual contact;
(vi) Involuntary manslaughter (excluding negligent homicide).
(5) Attempts, conspiracies, and solicitations shall be scored by
reference to the substantive offense that was the object of the attempt,
conspiracy, or solicitation; except that Category IIIA shall apply only
if death actually resulted.
(6) Current offense means any criminal behavior that is either:
(i) Reflected in the offense of conviction, or
(ii) Is not reflected in the offense of conviction but is found by
the Commission to be related to the offense of conviction (i.e., part of
the same course of conduct as the offense of conviction). In probation
violation cases, the current offense includes both the original offense
and the violation offense, except that the original offense shall be
scored as a prior conviction (with a prior commitment) rather than as
part of the current offense, if the prisoner served more than six months
in prison for the original offense before his probation commenced
(7) Category IIE applies whenever a firearm is possessed by the
offender during, or is used by the offender to commit, any offense that
is not scored under Category II(A-D). Category IIE also applies when the
current offense is felony unlawful possession of a firearm and there is
no other current offense. Possession for purposes of Category IIE
includes constructive possession.
(8) Category IIIA applies if the death of a victim is:
(i) Caused by the offender, or
(ii) Caused by an accomplice and the killing was planned or approved
by the offender in furtherance of a joint criminal venture.
(h) Determining the base guideline range. Determine the base
guideline range for adult prisoners from the following table:
------------------------------------------------------------------------
Base
guideline
Base point score range
(months)
------------------------------------------------------------------------
3 or less.................................................. 0
4.......................................................... 12-18
5.......................................................... 18-24
6.......................................................... 36-48
7.......................................................... 54-72
8.......................................................... 72-96
9.......................................................... 110-140
10......................................................... 136-172
------------------------------------------------------------------------
(i) Months to parole eligibility. Determine the total number of
months until parole eligibility.
(j) Guideline range for disciplinary infractions. Determine the
applicable guideline range from Sec. 2.36 for any significant
disciplinary infractions since the beginning of confinement on the
current offense in the case of an initial hearing, and since the last
hearing in the case of a rehearing. If there are no
[[Page 166]]
significant disciplinary infractions, this step is not applicable.
(k) Guidelines for superior program achievement. If superior program
achievement is found, the award for superior program achievement shall
be one-third of the number of months during which the prisoner
demonstrated superior program achievement. The award is determined on
the basis of all time in confinement on the current offense in the case
of an initial hearing, and on the basis of time in confinement since the
last hearing in the case of a rehearing. If superior program achievement
is not found, this step is not applicable.
Note: When superior program achievement is found, it is presumed
that the award will be based on the total number of months since the
beginning of confinement on the current offense in the case of an
initial hearing, or since the last hearing in the case of a rehearing.
Where, however, the Commission determines that the prisoner did not have
superior program achievement during the entire period, it may base its
decision solely on the number of months during which the prisoner had
superior program achievement.
(l) Determining the total guideline range at an initial hearing. At
an initial hearing
(1) Add together the minimum of the base point guideline range (from
paragraph (h) of this section), the number of months required by the
prisoner's parole eligibility date (from (i) of this section), and the
minimum of the guideline range for disciplinary infractions, if
applicable (from paragraph (j) of this section). Then subtract the award
for superior program achievement, if applicable (from paragraph (k) of
this section). The result is the minimum of the Total Guideline Range.
(2) Add together the maximum of the base point guideline range (from
paragraph (h) of this section), the number of months required by the
prisoner's parole eligibility date (from paragraph (i) of this section),
and the maximum of the guideline range for disciplinary infractions, if
applicable (from paragraph (j) of this section). Then subtract the award
for superior program achievement, if applicable (from paragraph (k) of
this section). The result is the maximum of the Total Guideline Range.
(m) Determining the total guideline range at a reconsideration
hearing. At a reconsideration hearing--
(1) Add together the minimum of the Total Guideline Range from the
previous hearing, and the minimum of the guideline range for
disciplinary infractions since the previous hearing, if applicable (from
paragraph (j) of this section). Then subtract the award for superior
program achievement, if applicable (from paragraph (k) of this section).
The result is the minimum of the Total Guideline Range for the current
hearing.
(2) Add together the maximum of the Total Guideline Range from the
previous hearing, and the maximum of the guideline range for
disciplinary infractions since the previous hearing, if applicable (from
paragraph (j) of this section). Then subtract the award for superior
program achievement since the previous hearing, if applicable (from
paragraph (k) of this section). The result is the maximum of the Total
Guideline Range for the current hearing.
(n) Decisions outside the guidelines.
(1) The Commission may, in unusual circumstances, grant or deny
parole to a prisoner notwithstanding the guidelines. Unusual
circumstances are case-specific factors that are not fully taken into
account in the guidelines, and that are relevant to the grant or denial
of parole. In such cases, the Commission shall specify in the notice of
action the specific factors that it relied on in departing from the
applicable guideline or guideline range. If the prisoner is deemed to be
a poorer or more serious risk than the guidelines indicate, the
Commission shall determine what Base Point Score would more
appropriately fit the prisoner's case, and shall render its initial and
rehearing decisions as if the prisoner had that higher Base Point Score.
It is to be noted that, in some cases, an extreme level of risk
presented by the prisoner may make it inappropriate for the Commission
to contemplate a parole at any hearing without a significant change in
the prisoner's circumstances.
(2) Factors that may warrant a decision above the guidelines
include, but are not limited to, the following:
[[Page 167]]
(i) Poorer parole risk than indicated by salient factor score. The
offender is a poorer parole risk than indicated by the salient factor
score because of--
(A) Unusually persistent failure under supervision (pretrial
release, probation, or parole);
(B) Unusually persistent history of criminally related substance
(drug or alcohol) abuse and resistance to treatment efforts; or
(C) Unusually extensive prior record (sufficient to make the
offender a poorer risk than the ``poor'' prognosis category).
(ii) More serious parole risk. The offender is a more serious parole
risk than indicated by the total point score because of--
(A) Prior record of violence more extensive or serious than that
taken into account in the guidelines;
(B) Current offense demonstrates extraordinary criminal
sophistication, criminal professionalism in the employment of violence
or threats of violence, or leadership role in instigating others to
commit a serious offense;
(C) Unusual cruelty to the victim (beyond that accounted for by
scoring the offense as high level violence), or predation upon extremely
vulnerable victim;
(D) Unusual propensity to inflict unprovoked and potentially
homicidal violence, as demonstrated by the circumstances of the current
offense; or
(E) Additional serious offense(s) committed after (or while on bond
or fugitive status from) current offense that show unusual capacity for
sustained, repeated violent criminal activity.
(3) Factors that may warrant a decision below the guidelines
include, but are not limited to, the following:
(i) Better parole risk than indicated by salient factor score. The
offender is a better parole risk than indicated by the salient factor
score because of (applicable only to offenders who are not already in
the very good risk category)--
(A) A prior criminal record resulting exclusively from minor
offenses;
(B) A substantial crime-free period in the community for which
credit is not already given on the Salient Factor Score;
(C) A change in the availability of community resources leading to a
better parole prognosis;
(ii) Other factors:
(A) Unusually lengthy period of incarceration on the minimum
sentence (in relation to the seriousness of the offense and prior
record) that warrants an initial parole determination as if the offender
were being considered at a rehearing;
(B) Substantial period in custody on other sentence(s) sufficient to
warrant a finding in paragraph (n)(3) of this section; or
(C) Clearly exceptional program achievement.
Appendix to Sec. 2.80
(a) Applicability. (1) The guidelines in this Appendix apply to:
(i) Any adult offender who received an initial hearing on or after
August 5, 1998 and before December 4, 2000, and who also received
positive points for disciplinary infractions or negative points for
superior program achievement at any hearing (initial or rehearing)
during the above period; and
(ii) Any youth offender who received an initial hearing on or after
August 5, 1998.
(2) For prisoners whose initial hearings were held prior to August
5, 1998, the Commission shall render its decisions by reference to the
guidelines applied by the D.C. Board of Parole. However, when a decision
outside such guidelines has been made by the Board, or is ordered by the
Commission, the Commission may determine the appropriateness and extent
of the departure by comparison with the guidelines in this appendix. The
Commission may also correct any error in the calculation of the D.C.
Board's guidelines.
(b) Guidelines. Apply Sec. 2.80(b).
(c) Salient factor score and criminal record. Apply Sec. 2.80(c).
(d) Disciplinary infractions. The Commission shall assess whether
the prisoner has been found guilty of committing disciplinary
infractions while under confinement for the current offense. The
Commission shall refer to the offense classification tables of the D.C.
Department of Corrections or the Bureau of Prisons, as applicable, in
determining whether the prisoner's disciplinary record should be counted
on the point score. A single Class I or Code 100 offense, or two or more
Class II or Code 200 offenses, shall be counted as negative
institutional behavior at an initial hearing or any rehearing. A
persistent record of lesser offenses may also be counted as negative
institutional behavior at an initial hearing or a rehearing. At initial
hearings, an infraction-free period of at least
[[Page 168]]
three years preceding the date of the hearing may be considered by the
Commission as sufficient to exclude from consideration a previous record
of Class I (or Code 100) or Class II (or Code 200) offenses, provided
that such offenses would result in not more than one point added to the
prisoner's score.
(e) Program achievement. The Commission shall assess whether the
prisoner has demonstrated ordinary or superior achievement in the area
of prison programs, industries, or work assignments while under
confinement for the current offense. Superior Program Achievement means
program achievement that is beyond the level that the prisoner might
ordinarily be expected to accomplish. Where prison programs and work
assignments are limited or unavailable, the Commission may exercise
discretion based on the prisoner's record of behavior. Points may be
deducted for program achievement regardless of whether points have been
added for negative institutional behavior during the same period.
(f) Base Point Score. Add the applicable points from Categories I-
III of the Point Assignment Table in Sec. 2.80 (f) to determine the Base
Point Score (using the definitions in Sec. 2.80(g)).
(g) Negative institutional behavior. Determine the points
applicable, if any, for negative institutional behavior (Category IV).
CATEGORY IV: NEGATIVE INSTITUTIONAL BEHAVIOR
Notes:
(1) Use the highest applicable subcategory. If no subcategory is
applicable, score = 0.
(2) In some cases, negative institutional behavior that involves
violence will result in a higher score if scored as an additional
current offense under Categories II and/or III, than if scored under
Category IVA. In such cases, the prisoner's point score is recalculated
to reflect the conduct as an additional current offense under Categories
II and/or III, rather than as a disciplinary infraction under Category
IVA. For example, the attempted murder of another inmate will result in
a higher score when treated as an additional current offense under
Categories II and III, if the offense of conviction was scored under
Category IIC only as violence in current offense. If negative
institutional behavior is treated as an additional current offense,
points may nonetheless be assessed under Category IVA or B for other
disciplinary infractions.
A. Aggravated negative institutional behavior involving: (1) +2
assault upon a correctional staff member, with bodily harm
inflicted or threatened, (2) possession of a deadly weapon,
(3) setting a fire so as to risk human life, (4) introduction
of drugs for purposes of distribution, or (5) participating in
a violent demonstration or riot...............................
B. Ordinary negative institutional behavior.................... +1
(h) Superior program achievement. Determine the (minus) points
applicable, if any, for superior or ordinary program achievement
(Category V).
CATEGORY V: PROGRAM ACHIEVEMENT
Note: Use the highest applicable subcategory. If no subcategory is
applicable, score = 0.
A. No program achievement...................................... 0
B. Ordinary program achievement................................ -1
C. Superior program achievement................................ -2
(i) Determine the Total Point Score by adding the Base Point Score
(Categories I, II, and III) to any points applicable for Negative
Institutional Behavior (Category IV) and then subtracting any points
applicable for Program Achievement (Category V).
(j) Guidelines for decisions at initial hearing--adult offenders. In
considering whether to parole an adult offender at an initial hearing,
the Commission shall determine the offender's Total Point Score and then
consult the following guidelines for the appropriate action:
[[Page 169]]
------------------------------------------------------------------------
Total points Guideline recommendation
------------------------------------------------------------------------
(1) If Points =0.................. Parole at initial hearing with low
level of supervision indicated.
(2) If Points =1.................. Parole at initial hearing with high
level of supervision indicated.
(3) If Points =2.................. Parole at initial hearing with
highest level of supervision
indicated.
(4) If Points =3+................. Deny parole at initial hearing and
schedule rehearing in accordance
with Sec. 2.75(c) and the time
ranges set forth in paragraph (l)
of this appendix.
------------------------------------------------------------------------
(k) Guidelines for decisions at initial hearing--youth offenders. In
considering whether to parole a youth offender at an initial hearing,
the Commission shall determine the youth offender's total point score
and then consult the following guidelines for the appropriate action:
------------------------------------------------------------------------
Total points Guideline recommendation
------------------------------------------------------------------------
(1) If Points = 0................. Parole at initial hearing with
conditions established to address
treatment needs.
(2) If Points = 1+................ Deny parole at initial hearing and
schedule a rehearing based on
estimated time to achieve program
objectives or by reference to the
time ranges in paragraph (l) of
this Appendix, whichever is less.
------------------------------------------------------------------------
(l) Guidelines for time to rehearing--adult offenders. (1) If parole
is denied or rescinded, the time to the subsequent hearing for an adult
offender shall be determined by the following guidelines:
------------------------------------------------------------------------
Months to
Base point score (Categories I through III) rehearing
------------------------------------------------------------------------
0-4........................................................ 12-18
5.......................................................... 18-24
6.......................................................... 18-24
7.......................................................... 18-24
8.......................................................... 18-24
9.......................................................... 22-28
10......................................................... 26-32
------------------------------------------------------------------------
(2) The time to a rehearing shall be determined by the prisoner's
Base Point Score, and not by the Total Point Score at the current
hearing, which indicates only whether parole should be granted or
denied. Exception: In the case of institutional misconduct deemed
insufficiently serious to warrant the addition of one or more points for
negative institutional behavior, the Commission may nonetheless deny or
rescind parole and render a decision based on the guideline ranges at
Sec. 2.36.
(3) At any initial hearing or rehearing, if the prisoner's Total
Point Score is 4 or less, the Commission may order both a rehearing date
and a presumptive parole date that is not more than 9 months from the
rehearing date. Such presumptive date may be converted to a parole
effective date following the rehearing, or the case may be reopened
based on new favorable information and a parole effective date granted
on the record.
(m) Guidelines for decisions at subsequent hearing--adult offenders.
In determining whether to parole an adult offender at a rehearing or
rescission hearing, the Commission shall take the Total Point Score from
the initial hearing or last rehearing, as the case may be, and adjust
that score according to the institutional record of the candidate since
the last hearing. The following guidelines are applicable:
------------------------------------------------------------------------
Total points Guideline recommendation
------------------------------------------------------------------------
If Points = 0-3................... Parole with highest level of
supervision indicated.
If Points = 4+.................... Deny parole at rehearing and
schedule a further rehearing in
accordance with Sec. 2.75(c) and
the time ranges set forth in
paragraph (l) of this appendix.
------------------------------------------------------------------------
(n) Guidelines for decisions at subsequent hearing--youth offenders. (1)
In determining whether to parole a youth offender appearing at a
rehearing or rescission hearing, the Commission shall take the Total
Point Score from the initial hearing or last rehearing, as the case may
be, and adjust that score according to the institutional record of the
candidate since the last hearing. The following guidelines are
applicable:
------------------------------------------------------------------------
Total points Guideline recommendation
------------------------------------------------------------------------
If Points = 0-3................... Parole with highest level of
supervision indicated.
If Points = 4+.................... Deny parole and schedule a rehearing
based on estimated time to achieve
program objectives or by reference
to the time ranges in paragraph (l)
of this appendix, whichever is
less.
------------------------------------------------------------------------
[[Page 170]]
(2) Prison officials may in any case recommend an earlier rehearing
date than ordered by the Commission if the Commission's program
objectives have been met.
(o)(1) The Commission may, in unusual circumstances, waive the
Salient Factor Score and the pre- and post-incarceration factors set
forth in this section to grant or deny parole to a prisoner
notwithstanding the guidelines, or to schedule a reconsideration hearing
at a time different from that indicated in paragraph (l) of this
appendix. Unusual circumstances are case-specific factors that are not
fully taken into account in the guidelines, and that are relevant to the
grant or denial of parole. In such cases, the Commission shall specify
in the notice of action the specific factors that it relied on in
departing from the applicable guideline or guideline range. For examples
of factors that may warrant a decision outside the applicable guideline
range, see Sec. 2.80(n).
(2) If the prisoner is deemed to be a poorer or more serious risk
than the guidelines indicate, the Commission shall determine what Base
Point Score would more appropriately fit the prisoner's case, and shall
render its initial and rehearing decisions as if the prisoner had that
higher Base Point Score. If possible, the factors justifying such a
departure shall be fully accounted for in the initial continuance, so
that the guidelines can be followed at subsequent hearings. In some
cases, however, an extreme level of risk presented by the prisoner may
make it inappropriate for the Commission to contemplate a parole at any
hearing without a significant change in the prisoner's circumstances.
[65 FR 70665, Nov. 27, 2000]
Sec. 2.81 Reparole decisions.
(a) If the prisoner is not serving a new, parolable D.C. Code
sentence, the Commission's decision to grant or deny reparole on the
parole violation term shall be made by reference to the reparole
guidelines at Sec. 2.21. The Commission shall establish a presumptive or
effective release date pursuant to Sec. 2.12(b), and conduct interim
hearings pursuant to Sec. 2.14.
(b) If the prisoner is eligible for parole on a new D.C. Code felony
sentence that has been aggregated with the prisoner's parole violation
term, the Commission shall make a decision to grant or deny parole on
the basis of the aggregate sentence, and in accordance with the
guidelines at Sec. 2.80.
(c) If the prisoner is eligible for parole on a new D.C. Code felony
sentence but the prisoner's parole violation term has not commenced
(i.e., the warrant has not been executed), the Commission shall make a
single parole/reparole decision by applying the guidelines at Sec. 2.80.
The Commission shall establish an appropriate date for the execution of
the outstanding warrant in order for the guidelines at Sec. 2.80 to be
satisfied. In cases where the execution of the warrant will not result
in the aggregation of the new sentence and the parole violation term,
the Commission shall make parole and reparole decisions that are
consistent with the guidelines at Sec. 2.80.
(d) All reparole hearings shall be conducted according to the
procedures set forth in Sec. 2.72, and may be combined with the holding
of a revocation hearing if the prisoner's parole has not previously been
revoked. If the prisoner is serving a period of imprisonment imposed
upon revocation of his parole by the D.C. Board of Parole, the
Commission shall consider all available and relevant information
concerning the prisoner's conduct while on parole, including any
allegations of criminal or administrative violations left unresolved by
the Board, pursuant to the procedures applicable to initial hearings
under Sec. 2.72 and Sec. 2.19(c). The same procedures shall apply in the
case of any new information concerning criminal or administrative
violations of parole presented to the Commission for the first time
following the conclusion of a revocation proceeding that resulted in the
revocation of parole and the return of the offender to prison.
[65 FR 45888, July 26, 2000, as amended at 66 FR 37137, July 17, 2001]
Sec. 2.82 Effective date of parole.
(a) A parole release date may be granted up to nine months from the
date of the hearing in order to permit the prisoner's placement in a
halfway house or to allow for release planning. Otherwise, a grant of
parole shall ordinarily be effective not more than six months from the
date of the hearing.
(b) Except in the case of a medical or geriatric parole, a parole
that is granted prior to the completion of the prisoner's minimum term
shall not become effective until the prisoner becomes eligible for
release on parole.
[[Page 171]]
Sec. 2.83 Release planning.
(a) All grants of parole shall be conditioned on the development of
a suitable release plan and the approval of that plan by the Commission.
A parole certificate shall not be issued until a release plan has been
approved by the Commission. In the case of mandatory release, the
Commission shall review each prisoner's release plan to determine
whether the imposition of any special conditions should be ordered to
promote the prisoner's rehabilitation and protect the public safety.
(b) If a parole date has been granted, but the prisoner has not
submitted a proposed release plan, the appropriate correctional or
supervision staff shall assist the prisoner in formulating a release
plan for investigation.
(c) After investigation by a Supervision Officer, the proposed
release plan shall be submitted to the Commission 30 days prior to the
prisoner's parole or mandatory release date.
(d) A Commissioner may retard a parole date for purposes of release
planning for up to 120 days without a hearing. If efforts to formulate
an acceptable release plan prove futile by the expiration of such
period, or if the Offender Supervision staff reports that there are
insufficient resources to provide effective supervision for the
individual in question, the Commission shall be promptly notified in a
detailed report. If the Commission does not order the prisoner to be
paroled, the Commission shall suspend the grant of parole and conduct a
reconsideration hearing on the next available docket. Following such
reconsideration hearing, the Commission may deny parole if it finds that
the release of the prisoner without a suitable plan would fail to meet
the criteria set forth in Sec. 2.73. However, if the prisoner
subsequently presents an acceptable release plan, the Commission may
reopen the case and issue a new grant of parole.
(e) The following shall be considered in the formulation of a
suitable release plan:
(1) Evidence that the parolee will have an acceptable residence;
(2) Evidence that the parolee will be legitimately employed as soon
as released; provided, that in special circumstances, the requirement
for immediate employment upon release may be waived by the Commission;
(3) Evidence that the necessary aftercare will be available for
parolees who are ill, or who have any other demonstrable problems for
which special care is necessary, such as hospital facilities or other
domiciliary care; and
(4) Evidence of availability of, and acceptance in, a community
program in those cases where parole has been granted conditioned upon
acceptance or participation in a specific community program.
Sec. 2.84 Release to other jurisdictions.
The Commission, in its discretion, may parole any prisoner to live
and remain in a jurisdiction other than the District of Columbia.
Sec. 2.85 Conditions of release.
(a) The following conditions are attached to every grant of parole
and are deemed necessary to provide adequate supervision and to protect
the public welfare. They are printed on the certificate issued to each
parolee and mandatory releasee:
(1) The parolee shall go directly to the district named in the
certificate (unless released to the custody of other authorities).
Within three days after his release, he shall report to the Supervision
Officer whose name appears on the certificate. If in any emergency the
parolee is unable to get in touch with his supervision office, he shall
communicate with the U.S. Parole Commission, Chevy Chase, Maryland
20815-7286.
(2) If the parolee is released to the custody of other authorities,
and after release from the physical custody of such authorities, he is
unable to report to the Supervision Officer to whom he is assigned
within three days, he shall report instead to the nearest U.S. Probation
Officer.
(3) The parolee shall not leave the limits fixed by his certificate
of parole without written permission from his Supervision Officer.
(4) The parolee shall notify his Supervision Officer within two days
of any change in his place of residence.
(5) The parolee shall make a complete and truthful written report
(on a form provided for that purpose) to his
[[Page 172]]
Supervision Officer between the first and third day of each month. He
shall also report to his Supervision Officer at other times as the
officer directs, providing complete and truthful information.
(6) The parolee shall not violate any law, nor shall he associate
with persons engaged in criminal activity. The parolee shall report
within two days to his Supervision Officer (or supervision office) if he
is arrested or questioned by a law-enforcement officer.
(7) The parolee shall not enter into any agreement to act as an
informer or special agent for any law-enforcement agency without
authorization from the Commission.
(8) The parolee shall work regularly unless excused by his
Supervision Officer, and support his legal dependents, if any, to the
best of his ability. He shall report within two days to his Supervision
Officer any changes in employment or employment status.
(9) The parolee shall not drink alcoholic beverages to excess. He
shall not purchase, possess, use, or administer controlled substances
(marijuana or narcotic or other habit-forming drugs) unless prescribed
or advised for the parolee by a physician. The parolee shall not
frequent places where such drugs are illegally sold, dispensed, used, or
given away.
(10) The parolee shall not associate with persons who have a
criminal record without the permission of his Supervision Officer.
(11) The parole shall not possess a firearm or other dangerous
weapon.
(12) The parolee shall permit visits by his Supervision Officer to
his residence and to his place of business or occupation. He shall
permit confiscation by his Supervision Officer of any materials which
the officer believes may constitute contraband in the parolee's
possession and which he observes in plain view in the parolee's
residence, place of business or occupation, vehicle(s), or on his
person. The Commission may also, when a reasonable basis for so doing is
presented, modify the conditions of parole to require the parolee to
permit the Supervision Officer to conduct searches and seizures of
concealed contraband on the parolee's person, and in any building,
vehicle, or other area under the parolee's control, at such times as the
officer shall decide.
(13) The parolee shall make a diligent effort to satisfy any fine,
restitution order, court costs or assessment, and/or court ordered child
support or alimony payment that has been, or may be, imposed, and shall
provide such financial information as may be requested by his
Supervision Officer that is relevant to the payment of the obligation.
If unable to pay the obligation in one sum, the parolee shall cooperate
with his Supervision Officer in establishing an installment payment
schedule.
(14) The parolee shall submit to a drug test whenever ordered by his
Supervision Officer.
(15) If released to the District of Columbia, the parolee shall
submit to the sanctions imposed by his Supervision Officer (within the
limits established by the approved Schedule of Accountability Through
Graduated Sanctions), if the Supervision Officer finds that the parolee
has tested positive for illegal drugs or that he has committed any non-
criminal violation of the conditions of his parole. Graduated sanctions
may include community service, curfew with electronic monitoring, and/or
a period of time in a community treatment center. The parolee's failure
to cooperate with a graduated sanction imposed by his Supervision
Officer will subject the parolee to the issuance of a summons or warrant
by the Commission, and a revocation hearing at which the parolee will be
afforded the opportunity to contest the violation charge(s) upon which
the sanction was based. If the Commission finds that the parolee has
violated parole as alleged, the parolee will also be found to have
violated this condition. In addition, the Commission may override the
imposition of a graduated sanction at any time and issue a warrant or
summons if it finds that the parolee is a risk to the public safety or
that he is not complying with this condition in good faith.
(b) The Commission or a member thereof may at any time modify or add
to the conditions of release. The parolee shall receive notice of the
proposed modification and unless waived shall have ten days following
receipt of
[[Page 173]]
such notice to express his views thereon. Following such ten day period,
the Commission shall have 21 days, exclusive of holidays, to order such
modification of or addition to the conditions of release. The ten-day
notice requirement shall not apply to a modification of the conditions
of parole in the following circumstances:
(1) Following a revocation hearing;
(2) Upon a finding that immediate modification of the conditions of
parole is required to prevent harm to the parolee or to the public; or
(3) In response to a request by the parolee for a modification of
the conditions of parole.
(c) The Commission may, as a condition of parole, require a parolee
to reside in a community corrections center, or participate in the
program of a residential treatment center, or both, for all or part of
the period of parole.
(d) The Commission may require that a parolee remain at his place of
residence during nonworking hours and, if the Commission so directs, to
have compliance with this condition monitored by telephone or electronic
signaling devices. A condition under this paragraph may be imposed only
as an alternative to incarceration.
(e) A prisoner who, having been granted a parole date, subsequently
refuses to sign the parole certificate, or any other consent form
necessary to fulfill the conditions of parole, shall be deemed to have
withdrawn the application for parole as of the date of his refusal to
sign. To be considered for parole again, the prisoner must reapply for
parole.
(f) With respect to prisoners who are required to be released to
supervision through good time reductions (mandatory release), the
conditions of parole set forth in this rule, and any other special
conditions ordered by the Commission, shall be in full force and effect
upon the established release date regardless of any refusal by the
prisoner to sign his certificate.
(g) Any parolee who absconds from supervision has effectively
prevented his sentence from expiring. Therefore, the parolee remains
bound by the conditions of his release and violations committed at any
time prior to execution of a warrant issued by the Commission, whether
before or after the original expiration date, may be charged as a basis
for revocation. In such a case, the warrant may be supplemented at any
time.
(h) The Commission may require a parolee, when there is evidence of
prior or current alcohol dependence or abuse, to participate in an
alcohol aftercare treatment program. In such a case, the Commission will
require that the parolee abstain from the use of alcohol and/or all
other intoxicants during and after the course of treatment.
(i) The Commission may require a parolee, where there is evidence of
prior or current drug dependence or abuse, to participate in a drug
treatment program, which shall include at least two periodic tests to
determine whether parolee has reverted to the use of drugs (including
alcohol). In such a case, the Commission will require that the parolee
abstain from the use of alcohol and/or all other intoxicants during and
after the course of treatment. In the event such condition is imposed
prior to an eligible prisoner's release from prison, any grant of parole
or reparole shall be contingent upon the prisoner passing all pre-
release drug tests administered by prison officials.
(j) Parolees are expected by the Commission to understand the
conditions of parole according to their plain meaning, and to seek the
guidance of their Supervision Officers before engaging in any conduct
that may constitute a violation thereof. Supervision Officers may issue
instructions to parolees to refrain from particular conduct that would
violate parole, or to take specific steps to avoid or correct a
violation of parole, as well as such other directives as may be
authorized by the conditions imposed by the Commission.
Sec. 2.86 Release on parole; rescission for misconduct.
(a) When a parole effective date has been set, actual release on
parole on that date shall be conditioned upon the individual maintaining
a good conduct record in the institution or prerelease program to which
the prisoner has been assigned.
[[Page 174]]
(b) The Commission may reconsider any grant of parole prior to the
prisoner's actual release on parole, and may advance or retard a parole
effective date or rescind a parole date previously granted based upon
the receipt of any new and significant information concerning the
prisoner, including disciplinary infractions. The Commission may retard
a parole date for disciplinary infractions (e.g., to permit the use of
graduated sanctions) for up to 120 days without a hearing, in addition
to any retardation ordered under Sec. 2.83(d).
(c) If a parole effective date is rescinded for disciplinary
infractions, an appropriate sanction shall be determined--
(1) By reference to Sec. 2.36 in the case of a prisoner subject to
the guidelines at Sec. 2.80; or
(2) In the case of a prisoner subject to the guidelines at the
appendix to Sec. 2.80, either by adding the appropriate points for
negative institutional behavior to the prisoner's Total Point Score, or
by reference to Sec. 2.36 if the misconduct is not sufficiently serious
to warrant a continuance under Sec. 2.80 (k). A Total Point Score of 0-2
shall be adjusted to a total point score of 3 prior to adding points for
negative institutional behavior pursuant to the Point Assignment Table
at Sec. 2.80(f).
(c) After a prisoner has been granted a parole effective date, the
institution shall notify the Commission of any serious disciplinary
infractions committed by the prisoner prior to the date of actual
release. In such case, the prisoner shall not be released until the
institution has been advised that no change has been made in the
Commission's order granting parole.
(d) A grant of parole becomes operative upon the authorized delivery
of a certificate of parole to the prisoner, and the signing of that
certificate by the prisoner, who thereafter becomes a parolee.
[65 FR 70669, Nov. 27, 2000]
Sec. 2.87 Mandatory release.
(a) When a prisoner has been denied parole at the initial hearing
and all subsequent considerations, or parole consideration is expressly
precluded by statute, the prisoner shall be released at the expiration
of his or her imposed sentence less the time deducted for any good time
allowances provided by statute.
(b) Any prisoner having served his or her term or terms less
deduction for good time shall, upon release, be deemed to be released on
parole until the expiration of the maximum term or terms for which he or
she was sentenced, except that if the offense of conviction was
committed before April 11, 1987, such expiration date shall be less one
hundred eighty (180) days. Every provision of these rules relating to an
individual on parole shall be deemed to include individuals on mandatory
release.
Sec. 2.88 Confidentiality of parole records.
(a) Consistent with the Privacy Act of 1974 (5 U.S.C. 552(b)), the
contents of parole records shall be confidential and shall not be
disclosed outside the Commission except as provided in paragraphs (b)
and (c) of this section.
(b) Information that is subject to release to the general public
without the consent of the prisoner shall be limited to the information
specified in Sec. 2.37.
(c) Information other than as described in Sec. 2.37 may be
disclosed without the consent of the prisoner only pursuant to the
provisions of the Privacy Act of 1974 (5 U.S.C. 552(b)) and Sec. 2.56.
Sec. 2.89 Miscellaneous provisions.
Except to the extent otherwise provided by law, the following
sections in Subpart A of this part are also applicable to District of
Columbia Code offenders:
2.5 (Sentence aggregation)
2.7 (Committed fines and restitution orders)
2.8 (Mental competency procedures)
2.10 (Date service of sentence commences)
2.16 (Parole of prisoner in State, local, or territorial institution)
2.19 (Information considered)
2.23 (Delegation to hearing examiners)
2.30 (False information or new criminal conduct; Discovery after
release)
2.32 (Parole to local or immigration detainers)
2.56 (Disclosure of Parole Commission file)
2.62 (Rewarding assistance in the prosecution of other offenders:
criteria and guidelines)
2.65 (Paroling policy for prisoners serving aggregated U.S. and D.C.
Code sentences)
[[Page 175]]
Sec. 2.90 Prior orders of the Board of Parole.
Any order entered by the Board of Parole of the District of Columbia
shall be accorded the status of an order of the Parole Commission unless
duly reconsidered and changed by the Commission at a regularly scheduled
hearing. It shall not constitute grounds for reopening a case that the
prisoner is subject to an order of the Board of Parole that fails to
conform to a provision of this part.
Sec. 2.91 Supervision responsibility.
(a) Pursuant to D.C. Code 24-1233(c) and 4203(b)(4), the District of
Columbia Court Services and Offender Supervision Agency (CSOSA) shall
provide supervision, through qualified Supervision Officers, for all
D.C. Code parolees and mandatory releasees under the jurisdiction of the
Commission who are released to the District of Columbia. Individuals
under the jurisdiction of the Commission who are released to districts
outside the D.C. metropolitan area, or who are serving mixed U.S. and
D.C. Code sentences, shall be supervised by a U.S. Probation Officer
pursuant to 18 U.S.C. 3655.
(b) A parolee or mandatory releasee may be transferred to a new
district of supervision with the permission of the supervision offices
of both the transferring and receiving district, provided such transfer
is not contrary to instructions from the Commission.
Sec. 2.92 Jurisdiction of the Commission.
(a) Pursuant to D.C. Code 24-431(a), the jurisdiction of the
Commission over a parolee shall expire on the date of expiration of the
maximum term or terms for which he was sentenced, subject to the
provisions of this subpart relating to warrant issuance, time in
absconder status, and the forfeiture of credit for time on parole in the
case of revocation.
(b) The parole of any parolee shall run concurrently with the period
of parole, probation, or supervised release under any other Federal,
State, or local sentence.
(c) Upon the expiration of the parolee's maximum term as specified
in the release certificate, the parolee's Supervision Officer shall
issue a certificate of discharge to such parolee and to such other
agencies as may be appropriate.
(d) A termination of parole pursuant to an order of revocation shall
not affect the Commission's jurisdiction to grant and enforce any
further periods of parole, up to the expiration of the offender's
maximum term.
Sec. 2.93 Travel approval.
(a) A parolee's Supervision Officer may approve travel outside the
district of supervision without approval of the Commission in the
following situations:
(1) Vacation trips not to exceed thirty days.
(2) Trips, not to exceed thirty days, to investigate reasonably
certain employment possibilities.
(3) Recurring travel across a district boundary, not to exceed fifty
miles outside the district, for purpose of employment, shopping, or
recreation.
(b) Specific advance approval by the Commission is required for all
foreign travel, employment requiring recurring travel more than fifty
miles outside the district, and vacation travel outside the district of
supervision exceeding thirty days. A request for such permission shall
be in writing and must demonstrate a substantial need for such travel.
(c) A special condition imposed by the Commission prohibiting
certain travel shall apply instead of any general rules relating to
travel as set forth in paragraph (a) of this section.
(d) The district of supervision for a parolee under the supervision
of the D.C. Community Supervision Office of CSOSA shall be the District
of Columbia, except that for the purpose of travel permission under this
section the district of supervision will include the D.C. metropolitan
area as defined in the certificate of parole.
Sec. 2.94 Supervision reports to Commission.
An initial supervision report to confirm the satisfactory initial
progress of the parolee shall be submitted to the Commission 90 days
after the parolee's release from prison, by the officer responsible for
the parolee's supervision. A regular supervision report shall be
[[Page 176]]
submitted to the Commission by the officer responsible for the
supervision of the parolee after the completion of 12 months of
continuous community supervision and annually thereafter. The
Supervision Officer shall submit such additional reports and information
concerning both the parolee, and the enforcement of the conditions of
the parolee's supervision, as the Commission may direct. All reports
shall be submitted according to the format established by the
Commission.
Sec. 2.95 Release from active supervision.
(a) The Commission, in its discretion, may release a parolee or
mandatory releasee from further supervision prior to the expiration of
the maximum term or terms for which he or she was sentenced.
(b) Two years after release on supervision, and at least annually
thereafter, the Commission shall review the status of each parolee to
determine the need for continued supervision. In calculating such two-
year period there shall not be included any period of release on parole
prior to the most recent release, nor any period served in confinement
on any other sentence. A review shall also be conducted whenever release
from supervision is specially recommended by the parolee's Supervision
Officer.
(c) In determining whether to grant release from supervision, the
Commission shall apply the following guidelines, provided that case-
specific factors do not indicate a need for continued supervision:
(1) For a parolee originally classified in the very good risk
category and whose current offense did not involve violence, release
from supervision may be ordered after two continuous years of incident-
free parole in the community;
(2) For a parolee originally classified in the very good risk
category and whose current offense involved violence other than high
level violence, release from supervision may be ordered after three
continuous years of incident-free parole in the community;
(3) For a parolee originally classified in the very good risk
category and whose current offense involved high level violence (without
death of victim resulting), release from supervision may be ordered
after four continuous years of incident-free parole in the community;
(4) For a parolee originally classified in other than the very good
risk category, whose current offense did not involve violence, and whose
prior record includes not more than one episode of felony violence,
release from supervision may be ordered after three continuous years of
incident-free parole in the community;
(5) For a parolee originally classified in other than the very good
risk category, and whose current offense involved violence other than
high level violence, or whose prior record includes two or more episodes
of felony violence, release from supervision may be ordered after four
continuous years of incident-free parole in the community;
(6) For a parolee who was originally classified in other than the
very good risk category and whose current offense involved high level
violence (without death of victim resulting), release from supervision
may be ordered after five continuous years of incident-free parole in
the community;
(7) For any parolee whose current offense involved high level
violence with death of victim resulting, release from supervision may be
ordered only upon a case-specific finding that, by reason of age,
infirmity, or other compelling factors, the parolee is unlikely to be a
threat to the public safety.
(d) Decisions to release from supervision prior to completion of the
periods specified in this section may be made where it appears that the
parolee is a better risk than indicated by the salient factor score (if
originally classified in other than the very good risk category), or a
less serious risk than indicated by a violent current offense or prior
record (if any). However, release from supervision prior to the
completion of two years of incident-free supervision will not be granted
in any case unless case-specific factors clearly indicate that continued
supervision would be counterproductive to the parolee's rehabilitation.
(e) Except as provided in Sec. 2.99(c), cases with pending criminal
charge(s) shall not be released from supervision until the disposition
of such charge(s)
[[Page 177]]
is known. The term ``incident-free'' parole shall include both any
reported violations, and any arrest or law enforcement investigation
that raises a reasonable doubt as to whether the parolee has been able
to refrain from law violations while on parole.
Sec. 2.96 Order of release.
(a) When the Commission approves a recommendation for release from
active supervision, a written order of release from supervision shall be
issued and a copy thereof shall be delivered to the releasee.
(b) Each order of release shall state that the conditions of the
releasee's parole are waived, except that it shall remain a condition
that the releasee shall not violate any law or engage in any conduct
that might bring discredit to the parole system, under penalty of
possible withdrawal of the order of release or revocation of parole.
(c) An order of release from supervision shall not release the
parolee from the custody of the Attorney General or from the
jurisdiction of the Commission before the expiration of the term or
terms being served.
Sec. 2.97 Withdrawal of order of release.
If, after an order of release from supervision has been issued by
the Commission, and prior to the expiration date of the sentence(s)
being served, the parolee commits any new criminal offense or engages in
any conduct that might bring discredit to the parole system, the
Commission may, in its discretion, do any of the following:
(a) Issue a summons or warrant to commence the revocation process;
(b) Withdraw the order of release from supervision and return the
parolee to active supervision; or
(c) Impose any special conditions to the order of release from
supervision.
Sec. 2.98 Summons to appear or warrant for retaking of parolee.
(a) If a parolee is alleged to have violated the conditions of his
release, and satisfactory evidence thereof is presented, the Commission
or a member thereof may:
(1) Issue a summons requiring the offender to appear for a probable
cause hearing or local revocation hearing; or
(2) Issue a warrant for the apprehension and return of the offender
to custody.
(b) A summons or warrant under paragraph (a)(1) of this section may
be issued or withdrawn only by the Commission, or a member thereof.
(c) Any summons or warrant under this section shall be issued as
soon as practicable after the alleged violation is reported to the
Commission, except when delay is deemed necessary. Issuance of a summons
or warrant may be withheld until the frequency or seriousness of the
violations, in the opinion of the Commission, requires such issuance. In
the case of any parolee who is charged with a criminal offense and who
is awaiting disposition of such charge, issuance of a summons or warrant
may be:
(1) Temporarily withheld;
(2) Issued by the Commission and held in abeyance;
(3) Issued by the Commission and a detainer lodged with the
custodial authority; or
(4) Issued for the retaking of the parolee.
(d) A summons or warrant may be issued only within the prisoner's
maximum term or terms, except that in the case of a prisoner who has
been mandatorily released from a sentence imposed for an offense
committed before April 11, 1987, such summons or warrant may be issued
only within the maximum term or terms less one hundred eighty days. A
summons or warrant shall be considered issued when signed and either:
(1) Placed in the mail; or
(2) Sent by electronic transmission to the appropriate law
enforcement authority.
(e) The issuance of a warrant under this section operates to bar the
expiration of the parolee's sentence. Such warrant maintains the
Commission's jurisdiction to retake the parolee either before or after
the normal expiration date of the sentence and to reach a final decision
as to the revocation of parole and the forfeiture of time pursuant to
D.C. Code 24-206(a).
(f) A summons or warrant issued pursuant to this section shall be
accompanied by a warrant application (or other notice) stating:
[[Page 178]]
(1) The charges against the parolee;
(2) The specific reports and other documents upon which the
Commission intends to rely in determining whether a violation occurred
and whether to revoke parole;
(3) Notice of the Commission's intent, if the parolee is arrested
within the District of Columbia, to hold a probable cause hearing within
five days of the parolee's arrest;
(4) A statement of the purpose of the probable cause hearing;
(5) The days of the week on which the Commission regularly holds its
dockets of probable cause hearings at the Central Detention Facility;
(6) The parolee's procedural rights in the revocation process; and
(7) The possible actions that the Commission may take.
(g) Every warrant issued by the Board of Parole of the District of
Columbia prior to August 5, 2000, shall be deemed to be a valid warrant
of the U.S. Parole Commission unless withdrawn by the Commission. Such
warrant shall be executed as provided in Sec. 2.99, and every offender
retaken upon such warrant shall be treated for all purposes as if
retaken upon a warrant issued by the Commission.
[65 FR 45888, July 26, 2000, as amended at 67 FR 2569, Jan. 18, 2002]
Sec. 2.99 Execution of warrant and service of summons.
(a) Any officer of any Federal or District of Columbia correctional
institution, any Federal Officer authorized to serve criminal process,
or any officer or designated civilian employee of the Metropolitan
Police Department of the District of Columbia, to whom a warrant is
delivered, shall execute such warrant by taking the parolee and
returning him to the custody of the Attorney General.
(b) Upon the arrest of the parolee, the officer executing the
warrant shall deliver to the parolee a copy of the warrant application
(or other notice provided by the Commission) containing the information
described in Sec. 2.98 (f).
(c) If execution of the warrant is delayed pending disposition of
local charges, for further investigation, or for some other purpose, the
parolee is to be continued under supervision by the Supervision Officer
until the normal expiration of the sentence, or until the warrant is
executed, whichever first occurs. Monthly supervision reports are to be
submitted, and the parolee must continue to abide by all the conditions
of release.
(d) If any other warrant for the arrest of the parolee has been
executed or is outstanding at the time the Commission's warrant is
executed, the arresting officer may, within 72 hours of executing the
Commission's warrant, release the parolee to such other warrant and
lodge the Commission's warrant as a detainer, voiding the execution
thereof, if such action is consistent with the instructions of the
Commission. In other cases, a parolee may be released from an executed
warrant whenever the Commission finds such action necessary to serve the
ends of justice.
(e) A summons to appear at a probable cause hearing or revocation
hearing shall be served upon the parolee in person by delivering to the
parolee a copy of the summons and the application therefor. Service
shall be made by any Federal or District of Columbia officer authorized
to serve criminal process and certification of such service shall be
returned to the Commission.
(f) Official notification of the issuance of a Commission warrant
shall authorize any law enforcement officer within the United States to
hold the parolee in custody until the warrant can be executed in
accordance with paragraph (a) of this section.
[ 65 FR 45888, July 26, 2000, as amended at 67 FR 2569, Jan. 18, 2002]
Sec. 2.100 Warrant placed as detainer and dispositional review.
(a) When a parolee is in the custody of other law enforcement
authorities, or is serving a new sentence of imprisonment imposed for a
crime committed while on parole or for a violation of some other form of
community supervision, a parole violation warrant may be lodged against
him as a detainer.
(b) If the parolee is serving a new sentence of imprisonment, and is
eligible and has applied for parole under the Commission's jurisdiction,
a dispositional revocation hearing shall be scheduled simultaneously
with the
[[Page 179]]
initial hearing on the new sentence. In such cases, the warrant shall
not be executed except upon final order of the Commission following such
hearing, as provided in Sec. 2.81(c). In any other cases, the detainer
shall be reviewed on the record pursuant to paragraph (c) of this
section.
(c) If the parolee is serving a new sentence of imprisonment that
does not include eligibility for parole under the Commission's
jurisdiction, the Commission shall review the detainer upon the request
of the parolee. Following such review, the Commission may:
(1) Withdraw the detainer and order reinstatement of the parolee to
supervision upon release from custody, or close the case if the
expiration date has passed.
(2) Order a dispositional revocation hearing to be conducted by a
hearing examiner or an official designated by the Commission at the
institution in which the parolee is confined. In such case, the warrant
shall not be executed except upon final order of the Commission
following such hearing.
(3) Let the detainer stand until the new sentence is completed.
Following the release of the parolee, and the execution of the
Commission's warrant, an institutional revocation hearing shall be
conducted after the parolee is returned to federal custody.
(d) Dispositional revocation hearings pursuant to this section shall
be conducted in accordance with the provisions at Sec. 2.103 governing
institutional revocation hearings, except that a hearing conducted at a
state or local facility may be conducted by a hearing examiner, hearing
examiner panel, or other official designated by the Commission.
Following a revocation hearing conducted pursuant to this section, the
Commission may take any action specified in Sec. 2.105.
(1) The date the violation term commences is the date the
Commission's warrant is executed. It shall be the policy of the
Commission that the parolee's violation term (i.e., the unexpired term
that remained to be served at the time the parolee was last released on
parole) shall start to run only upon his release from the confinement
portion of the sentence for the new offense, or the date of reparole
granted pursuant to this subpart, whichever comes first.
(2) A parole violator whose parole is revoked shall be given credit
for all time in confinement resulting from any new offense or violation
that is considered by the Commission as a basis for revocation, but
solely for the limited purpose of satisfying the time ranges in the
reparole guidelines at Sec. 2.81. The computation of the prisoner's
sentence, and forfeiture of time on parole pursuant to D.C. Code 24-
206(a), is not affected by such guideline credit.
Sec. 2.101 Probable cause hearing and determination.
(a) Hearing. A parolee who is retaken and held in custody in the
District of Columbia on a warrant issued by the Commission (or by the
Board of Parole of the District of Columbia), and who has not been
convicted of a new crime, shall, no later than five days from the date
of such retaking, be given a probable cause hearing by an examiner of
the Commission. The purpose of the probable cause hearing is to
determine whether there is probable cause to believe that the parolee
has violated parole as charged, and if so, whether a local or
institutional revocation hearing should be conducted.
(b) Notice and opportunity to postpone hearing. Prior to the
commencement of each docket of probable cause hearings, a list of the
parolees who are scheduled for probable cause hearings, together with a
copy of the warrant application for each parolee, shall be sent to the
DC Public Defender Service. At or before the probable cause hearing, the
parolee (or the parolee's attorney) may submit a written request that
the hearing be postponed for any period up to thirty days, and the
Commission shall ordinarily grant such requests. Prior to the
commencement of the probable cause hearing, the examiner shall advise
the parolee that the parolee may accept representation by the attorney
from the DC Public Defender Service who is assigned to that docket,
waive the assistance of an attorney at the probable cause hearing, or
have the probable cause hearing postponed in order to obtain another
attorney and/or witnesses on his behalf. In addition,
[[Page 180]]
the parolee may request the Commission to require the attendance of
adverse witnesses (i.e., witnesses who have given information upon which
revocation may be based) at a postponed probable cause hearing. Such
adverse witnesses may be required to attend either a postponed probable
cause hearing, or a combined postponed probable cause and local
revocation hearing, provided the parolee meets the requirements of
Sec. 2.102(a) for a local revocation hearing. The parolee shall also be
given notice of the time and place of any postponed probable cause
hearing.
(c) Review of the charges. At the beginning of the probable cause
hearing, the examiner shall ascertain that the notice required by
Sec. 2.99 (b) has been given to the parolee. The examiner shall then
review the violation charges with the parolee and shall apprise the
parolee of the evidence that has been submitted in support of the
charges. The examiner shall ascertain whether the parolee admits or
denies each charge listed on the warrant application (or other notice of
charges), and shall offer the parolee an opportunity to rebut or explain
the allegations contained in the evidence giving rise to each charge.
The examiner shall also receive the statements of any witnesses and
documentary evidence that may be presented by the parolee. At a
postponed probable cause hearing, the examiner shall also permit the
parolee to confront and cross-examine any adverse witnesses in
attendance, unless good cause is found for not allowing confrontation.
Whenever a probable cause hearing is postponed to secure the appearance
of adverse witnesses, the Commission will ordinarily order a combined
probable cause and local revocation hearing as provided in paragraph (i)
of this section.
(d) Probable cause determination. At the conclusion of the probable
cause hearing, the examiner shall determine whether probable cause
exists to believe that the parolee has violated parole as charged, and
shall so inform the parolee. The examiner shall then take either of the
following actions:
(1) If the examiner determines that no probable cause exists for any
violation charge, the examiner shall order that the parolee be released
from the custody of the warrant and either reinstated to parole, or
discharged from supervision if the parolee's sentence has expired.
(2) If the hearing examiner determines that probable cause exists on
any violation charge, and the parolee has requested (and is eligible
for) a local revocation hearing in the District of Columbia as provided
by Sec. 2.102 (a), the examiner shall schedule a local revocation
hearing for a date that is within 65 days of the parolee's arrest. After
the probable cause hearing, the parolee (or the parolee's attorney) may
submit a written request for a postponement. Such postponements will
normally be granted if the request is received no later than fifteen
days before the date of the revocation hearing. A request for a
postponement that is received by the Commission less than fifteen days
before the scheduled date of the revocation hearing will be granted only
for a compelling reason. The parolee (or the parolee's attorney) may
also request, in writing, a hearing date that is earlier than the date
scheduled by the examiner, and the Commission will accommodate such
request if practicable.
(e) Institutional revocation hearing. If the parolee is not eligible
for a local revocation hearing as provided by Sec. 2.102 (a), or has
requested to be transferred to an institution for his revocation
hearing, the Commission will request the Bureau of Prisons to designate
the parolee to an appropriate institution, and an institutional
revocation hearing shall be scheduled for a date that is within ninety
days of the parolee's retaking.
(f) Digest of the probable cause hearing. At the conclusion of the
probable cause hearing, the examiner shall prepare a digest summarizing
the evidence presented at the hearing, the responses of the parolee, and
the examiner's findings as to probable cause.
(g) Release notwithstanding probable cause. Notwithstanding a
finding of probable cause, the Commission may order the parolee's
reinstatement to supervision or release pending further proceedings, if
it determines that:
(1) Continuation of revocation proceedings is not warranted despite
the finding of probable cause; or
[[Page 181]]
(2) Incarceration pending further revocation proceedings is not
warranted by the frequency or seriousness of the alleged violation(s),
and the parolee is neither likely to fail to appear for further
proceedings, nor is a danger to himself or others.
(h) Conviction as probable cause. Conviction of any crime committed
subsequent to release by a parolee shall constitute probable cause for
the purposes of this section, and no probable cause hearing shall be
conducted unless a hearing is needed to consider additional violation
charges that may be determinative of the Commission's decision whether
to revoke parole.
(i) Combined probable cause and local revocation hearing. A
postponed probable cause hearing may be conducted as a combined probable
cause and local revocation hearing, provided such hearing is conducted
within 65 days of the parolee's arrest and the parolee has been notified
that the postponed probable cause hearing will constitute his final
revocation hearing. The Commission's policy is to conduct a combined
probable cause and local revocation hearing whenever adverse witnesses
are required to appear and give testimony with respect to contested
charges.
(j) Late received charges. If the Commission is notified of an
additional charge after probable cause has been found to proceed with a
revocation hearing, the Commission may:
(1) Remand the case for a supplemental probable cause hearing if the
new charge may be contested by the parolee and possibly result in the
appearance of witness(es) at the revocation hearing;
(2) Notify the parolee that the additional charge will be considered
at the revocation hearing without conducting a supplemental probable
cause hearing; or
(3) Determine that the new charge shall not be considered at the
revocation hearing.
[67 FR 2569, Jan. 18, 2002]
Sec. 2.102 Place of revocation hearing.
(a) If the parolee requests a local revocation hearing, he shall be
given a revocation hearing reasonably near the place of the alleged
violation(s) or arrest, with the opportunity to contest the charges
against him, if the following conditions are met:
(1) The parolee has not been convicted of a crime committed while
under supervision; and
(2) The parolee denies all charges against him.
(b) The parolee shall also be given a local revocation hearing if he
admits (or has been convicted of) one or more charged violations, but
denies at least one unadjudicated charge that may be determinative of
the Commission's decision regarding revocation and/or reparole, and
requests the presence of one or more adverse witnesses regarding that
contested charge. If the appearance of such witness at the hearing is
precluded by the Commission for good cause, a local revocation hearing
shall not be ordered.
(c) If there are two or more contested charges, a local revocation
hearing may be conducted near the place of the violation chiefly relied
upon by the Commission as a basis for the issuance of the warrant or
summons.
(d) A parolee who voluntarily waives his right to a local revocation
hearing, or who admits one or more charged violations without contesting
any unadjudicated charge that may be determinative of the Commission's
decision regarding revocation and/or reparole, or who is retaken
following release from a sentence of imprisonment for a new crime, shall
be given an institutional revocation hearing upon his return or
recommitment to an institution. An institutional revocation hearing may
also be conducted in the District of Columbia jail or prison facility in
which the parolee is being held. (However, a Commissioner may, on his
own motion, designate any such case for a local revocation hearing
instead.) The difference in procedures between a ``local revocation
hearing'' and an ``institutional revocation hearing'' is set forth in
Sec. 2.103.
(e) A parolee retaken on a warrant issued by the Commission shall be
retained in custody until final action relative to revocation of his
parole, unless otherwise ordered by the Commission under
Sec. 2.101(e)(3). A parolee who has been given a revocation hearing
pursuant to the issuance of a summons shall
[[Page 182]]
remain on supervision pending the decision of the Commission, unless the
Commission has provided otherwise.
(f) A local revocation hearing shall be held not later than sixty-
five days from the retaking of the parolee on the parole violation
warrant. An institutional revocation hearing shall be held within ninety
days of the retaking of the parolee on the parole violation warrant. If
the parolee requests and receives any postponement, or consents to any
postponement, or by his actions otherwise precludes the prompt
completion of revocation proceedings in his case, the above-stated time
limits shall be correspondingly extended.
[65 FR 45888, July 26, 2000, as amended at 67 FR 2570, Jan. 18, 2002]
Sec. 2.103 Revocation hearing procedure.
(a) The purpose of the revocation hearing shall be to determine
whether the parolee has violated the conditions of his release and, if
so, whether his parole or mandatory release should be revoked or
reinstated.
(b) At a local revocation hearing, the alleged violator may present
voluntary witnesses and documentary evidence in his behalf. The alleged
violator may also seek the compulsory attendance of any adverse
witnesses for cross-examination, and any relevant favorable witnesses
who have not volunteered to attend. At an institutional revocation
hearing, the alleged violator may present voluntary witnesses and
documentary evidence in his behalf, but may not request the Commission
to secure the attendance of any adverse or favorable witness. At any
hearing, the presiding hearing officer or examiner may limit or exclude
any irrelevant or repetitious statement or documentary evidence, and may
prohibit the parolee from contesting matters already adjudicated against
him in other forums.
(c) At a local revocation hearing, the Commission shall, on the
request of the alleged violator, require the attendance of any adverse
witnesses who have given statements upon which revocation may be based.
The adverse witnesses who are present shall be made available for
questioning and cross-examination in the presence of the alleged
violator. The Commission may also require the attendance of adverse
witnesses on its own motion, and may excuse any requested adverse
witness from appearing at the hearing (or from appearing in the presence
of the alleged violator) if it finds good cause for so doing. A finding
of good cause for the non-appearance of a requested adverse witness may
be based, for example, on a significant possibility of harm to the
witness, the witness not being reasonably available, and/or the
availability of documentary evidence that is an adequate substitute for
live testimony.
(d) All evidence upon which a finding of violation may be based
shall be disclosed to the alleged violator before the revocation
hearing. Such evidence shall include the Community Supervision Officer's
letter summarizing the parolee's adjustment to parole and requesting the
warrant, all other documents describing the charged violation or
violations of parole, and any additional evidence upon which the
Commission intends to rely in determining whether the charged violation
or violations, if sustained, would warrant revocation of parole. If the
parolee is represented by an attorney, the attorney shall be provided,
prior to the revocation hearing, with a copy of the parolee's
presentence investigation report, if such report is available to the
Commission. If disclosure of any information would reveal the identity
of a confidential informant or result in harm to any person, that
information may be withheld from disclosure, in which case a summary of
the withheld information shall be disclosed to the parolee prior to the
revocation hearing.
(e) An alleged violator may be represented by an attorney at either
a local or an institutional revocation hearing. In lieu of an attorney,
an alleged violator may be represented at any revocation hearing by a
person of his choice. However, the role of such non-attorney
representative shall be limited to offering a statement on the alleged
violator's behalf. Only licensed attorneys shall be permitted to
question witnesses, make objections, and otherwise provide legal
representation for parolees, except in the case of law students
appearing before the Commission as part of a court-approved clinical
practice program, with the consent
[[Page 183]]
of the alleged violator, and under the personal direction of a lawyer or
law professor who is physically present at the hearing.
(f) At a local revocation hearing, the Commission shall secure the
presence of the parolee's Community Supervision Officer, or a substitute
Community Supervision Officer, who shall bring the parolee's supervision
file, if the parolee's Community Supervision Officer is not available.
At the request of the hearing examiner, such officer shall provide
testimony at the hearing concerning the parolee's adjustment to parole.
(g) After the revocation hearing, the hearing examiner shall prepare
a summary of the hearing that includes a description of the evidence
against the parolee and the evidence submitted by the parolee in defense
or mitigation of the charges, a summary of the arguments against
revocation presented by the parolee, and the examiner's recommended
decision. The hearing examiner's summary, together with the parolee's
file (including any documentary evidence and letters submitted on behalf
of the parolee), shall be given to another examiner for review. When two
hearing examiners concur in a recommended disposition, that
recommendation, together with the parolee's file and the hearing
examiner's summary of the hearing, shall be submitted to the Commission
for decision.
[65 FR 45888, July 26, 2000, as amended at 67 FR 2570, Jan. 18, 2002]
Sec. 2.104 Issuance of subpoena for appearance of witnesses or production of documents.
(a)(1) If any adverse witness (i.e., a person who has given
information upon which revocation may be based) refuses, upon request by
the Commission, to appear at a probable cause hearing or local
revocation hearing, a Commissioner may issue a subpoena for the
appearance of such witness. Such subpoena may also be issued at the
discretion of a Commissioner in the event such adverse witness is judged
unlikely to appear as requested.
(2) In addition, a Commissioner may, upon a showing by the parolee
that a witness whose testimony is necessary to the proper disposition of
his case will not appear voluntarily at a local revocation hearing or
provide an adequate written statement of his testimony, issue a subpoena
for the appearance of such witness at the revocation hearing.
(3) Such subpoenas may also be issued at the discretion of a
Commissioner if deemed necessary for the orderly processing of the case.
(b) A subpoena issued pursuant to paragraph (a) of this section may
require the production of documents as well as, or in lieu of, a
personal appearance. The subpoena shall specify the time and the place
at which the person named therein is commanded to appear, and shall
specify any documents required to be produced.
(c) A subpoena may be served by any Federal or District of Columbia
officer authorized to serve criminal process. The subpoena may be served
at any place within the judicial district in which the place specified
in the subpoena is located, or any place where the witness may be found.
Service of a subpoena upon a person named therein shall be made by
delivering a copy thereof to such a person.
(d) If a person refuses to obey such subpoena, the Commission may
petition a court of the United States for the judicial district on which
the parole proceeding is being conducted, or in which such person may be
found, to require such person to appear, testify, or produce evidence.
If the court issues an order requiring such person to appear before the
Commission, failure to obey such an order is punishable as contempt. 18
U.S.C. 4214 (1976).
[65 FR 45888, July 26, 2000, as amended at 67 FR 2571, Jan. 18, 2002]
Sec. 2.105 Revocation decisions.
(a) Whenever a parolee is summoned or retaken by the Commission, and
the Commission finds by a preponderance of the evidence that the parolee
has violated one or more conditions of parole, the Commission may take
any of the following actions:
(1) Restore the parolee to supervision, including where appropriate:
(i) Reprimand the parolee;
(ii) Modify the parolee's conditions of release; or
[[Page 184]]
(iii) Refer the parolee to a residential community treatment center
for all or part of the remainder of his original sentence; or
(2) Revoke parole.
(b) If parole is revoked pursuant to this section, the Commission
shall also determine whether immediate reparole is warranted or whether
parole should be terminated pursuant to D.C. Code 24-206(a). Termination
of parole shall return the parolee to prison. If the parolee is returned
to prison, the Commission shall also determine a presumptive release
date pursuant to Sec. 2.81.
(c) Decisions under this section shall be made upon the concurrence
of two Commissioner votes, except that a decision to override an
examiner panel recommendation shall require the concurrence of three
Commissioner votes. The final decision following a local revocation
hearing shall be issued within 86 days of the retaking of the parolee on
the parole violation warrant. The final decision following an
institutional revocation hearing shall be issued within 21 days of the
hearing, excluding weekends and holidays.
(d) Pursuant to D.C. Code 24-206(a), a parolee whose parole is
revoked by the Commission shall receive no credit toward his sentence
for time spent on parole, including any time the parolee may have spent
in confinement on other sentences (or in a halfway house as a condition
of parole) prior to the execution of the Commission's warrant.
(e) Notwithstanding paragraphs (a) through (d) of this section,
prisoners committed under the Federal Youth Corrections Act shall not be
subject to forfeiture of time on parole, but shall serve uninterrupted
sentences from the date of conviction except as provided in Sec. 2.10(b)
and (c). This exception from D.C. Code 24-206(a) does not apply to
prisoners serving sentences under the D.C. Youth Rehabilitation Act, to
which D.C. Code 24-206(a) is fully applicable.
(f) In determining whether to revoke parole for non-compliance with
a condition requiring payment of a fine, restitution, court costs or
assessment, and/or court ordered child support or alimony payment, the
Commission shall consider the parolee's employment status, earning
ability, financial resources, and any other special circumstances that
may have a bearing on the matter. Revocation shall not be ordered unless
the parolee is found to be deliberately evading or refusing compliance.
[65 FR 45888, July 26, 2000, as amended at 67 FR 2571, Jan. 18, 2002]
Sec. 2.106 Youth Rehabilitation Act.
(a) Regulations governing YRA offenders and D.C. Code FYCA
offenders. The provisions of this section shall apply to offenders
sentenced pursuant to the Youth Rehabilitation Act of 1985 (D.C. Code
24-801 et seq.) (YRA), and to D.C. Code offenders sentenced under the
former Federal Youth Corrections Act (former 18 U.S.C. 5005 et seq.)
(FYCA).
(b) Application of this subpart to YRA offenders. All provisions of
this subpart that apply to adult offenders also apply to YRA offenders
unless a specific exception is made for YRA (or youth) offenders. The
specific exceptions for YRA offenders, apart from this section, are
found in Sec. 2.71(b) (timing of initial parole hearings), Sec. 2.75(b)
(timing of reconsideration hearings), Sec. 2.80(i) (guidelines for
decisions at initial hearings), and Sec. 2.80(l) (guidelines for
decisions at subsequent hearings).
(c) No further benefit finding. If there is a finding that a YRA
offender will derive no further benefit from treatment, such prisoner
shall be considered for parole, and for any other action, exclusively
under the provisions of this subpart that are applicable to adult
offenders. Such a finding may be made pursuant to D.C. Code 24-805 by
the Department of Corrections or by the Bureau of Prisons, and shall be
promptly forwarded to the Commission. However, if the finding is
appealed to the sentencing judge, the prisoner will continue to be
treated under the provisions pertaining to YRA offenders until the judge
makes a final decision denying the appeal.
(d) Program plans. At a YRA prisoner's initial parole hearing, a
program plan for the prisoner's treatment shall be submitted by
institutional staff and reviewed by the hearing examiner. Any proposed
modifications to the plan
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shall be discussed at the hearing, although further relevant information
may be presented and considered after the hearing. The plan shall
adequately account for the risk implications of the prisoner's current
offense and criminal history and shall address the prisoner's need for
rehabilitational training. The program plan shall also include an
estimated date of completion. The criteria at Sec. 2.64(d) for
successful response to treatment programs shall be considered by the
Commission in determining whether the proposed program plan would
effectively reduce the risk to the public welfare.
(e) Parole violators. A YRA parolee who has had his parole revoked
shall be scheduled for a rehearing within six months of the revocation
hearing to review the new program plan prepared by institutional staff,
unless a parole effective date is granted after the revocation hearing.
Such program plan shall reflect a thorough reassessment of the
prisoner's rehabilitational needs in light of the prisoner's failure on
parole. Decisions on reparole shall be made using the guidelines at
Sec. 2.80. If a YRA parolee is sentenced to a new prison term of one
year or more for a crime committed while on parole, the case shall be
referred to correctional authorities for consideration of a ``no further
benefit'' finding.
(f) Unconditional discharge from supervision. (1) A YRA parolee may
be unconditionally discharged from supervision after service of one year
on parole supervision if the Commission finds that supervision is no
longer needed to protect the public safety. A review of the parolee's
file shall be conducted after the conclusion of each year of supervision
upon receipt of an annual progress report, and upon receipt of a final
report to be submitted by the supervision officer six months prior to
the sentence expiration date.
(2) In making a decision concerning unconditional discharge, the
Commission shall consider the facts and circumstances of each case,
focusing on the risk the parolee poses to the public and the benefit he
may obtain from further supervision. The decision shall be made after an
analysis of case-specific factors, including, but not limited to, the
parolee's prior criminal history, the offense behavior that led to his
conviction, record of drug or alcohol dependence, employment history,
stability of residence and family relationships, and the number and
nature of any incidents while under supervision (including new arrests,
alleged parole violations, and criminal investigations).
(3) An order of unconditional discharge from supervision terminates
the YRA offender's sentence. Whenever a YRA offender is unconditionally
discharged from supervision, the Commission shall issue a certificate
setting aside the offender's conviction. If the YRA offender is not
unconditionally discharged from supervision prior to the expiration of
his sentence, a certificate setting aside the conviction may be issued
nunc pro tunc if the Commission finds that the failure to issue the
decision on time was due to administrative delay or error, or that the
Supervision Officer failed to present the Commission with a progress
report before the end of the supervision term, and the offender's own
actions did not contribute to the absence of the final report. However,
the offender must have deserved to be unconditionally discharged from
supervision before the end of his supervision term for a nunc pro tunc
certificate to issue.
Sec. 2.107 Interstate Compact.
(a) Pursuant to D.C. Code 24-1233(b)(2)(G), the Director of the
Court Services and Offender Supervision Agency (CSOSA), or his designee,
shall be the Compact Administrator with regard to the following
individuals on parole supervision pursuant to the Interstate Parole and
Probation Compact authorized by D.C. Code 24-251:
(1) All D.C. Code parolees who are under the supervision of agencies
in jurisdictions outside the District of Columbia; and
(2) All parolees from other jurisdictions who are under the
supervision of CSOSA within the District of Columbia.
(b) Transfers of supervision pursuant to the Interstate Compact,
where appropriate, may be arranged by the
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Compact Administrator, or his designee, and carried out with the
approval of the Parole Commission. A D.C. Code parolee who is under the
Parole Commission's jurisdiction will ordinarily be released or
transferred to the supervision of a U.S. Probation Office outside the
District of Columbia.
(c) Upon receipt of a report that a D.C. Code parolee, who is under
supervision pursuant to the Interstate Compact in a jurisdiction outside
the District of Columbia, has violated his or her parole, the Commission
may issue a warrant pursuant to the procedures of Sec. 2.98. The warrant
may be executed as provided as in Sec. 2.99. A parolee who is arrested
on such a warrant shall be considered to be a prisoner in federal
custody, and may be returned to the District of Columbia or designated
to a facility of the Bureau of Prisons at the request of the Commission.
(d) If a parolee from another jurisdiction, who is under the
supervision of CSOSA pursuant to the Interstate Compact, is alleged to
have violated his or her parole, the Compact Administrator or his
designee may issue a temporary warrant to secure the arrest of the
parolee pending issuance of a warrant by the original paroling agency.
If so requested, the Commission will conduct a courtesy revocation
hearing on behalf of the original paroling agency whenever a revocation
hearing within the District of Columbia is required.
(e) The term ``D.C. Code parolee'' shall include any felony offender
who is serving a period of parole or mandatory release supervision
pursuant to a sentence of imprisonment imposed under the District of
Columbia Code.
Subpart D--District of Columbia Code Supervised Releasees
Source: 65 FR 70467, Nov. 24, 2000, unless otherwise noted.
Sec. 2.200 Authority, jurisdiction, and functions of the U.S. Parole Commission with respect to offenders serving terms of supervised release imposed by the
Superior Court of the District of Columbia.
(a) The U.S. Parole Commission has jurisdiction, pursuant to D.C.
Code 24-1233(c)(2), over all offenders serving terms of supervised
release imposed by the Superior Court of the District of Columbia under
the Sentencing Reform Amendment Act of 2000.
(b) The U.S. Parole Commission shall have and exercise the same
authority with respect to a term of supervised release as is vested in
the United States district courts by 18 U.S.C. 3583(d) through(i),
except that:
(1) The procedures followed by the Commission in exercising that
authority shall be those set forth with respect to offenders on federal
parole at 18 U.S.C. 4209 through 4215 (Chapter 311 of 18 United States
Code); and
(2) An extension of a term of supervised release under subsection
(e)(2) of 18 U.S.C. 3583 may only be ordered by the Superior Court upon
motion from the Commission.
(c) Within the District of Columbia, supervision of offenders on
terms of supervised release under the Commission's jurisdiction is
carried out by the Community Supervision Officers of the Court Services
and Offender Supervision Agency (CSOSA), pursuant to D.C. Code 24-
1233(c)(2). Outside the District of Columbia, supervision is carried out
by United States Probation Officers pursuant to 18 U.S.C. 3655. For the
purpose of this subpart, any reference to a ``Supervision Officer''
shall include both a Community Supervision Officer of CSOSA and a United
States Probation Officer in the case of a releasee who is under
supervision outside the District of Columbia.
Sec. 2.201 Period of supervised release.
A period of supervised release that is subject to the Commission's
jurisdiction begins to run on the day the offender is released from
prison and continues to the expiration of the full term imposed by the
Superior Court, unless early termination is granted by the Commission.
In the case of multiple terms of supervised release imposed by the
Superior Court, all terms are deemed to be absorbed by the longest term
imposed, which shall be the controlling term for all purposes under this
part, including the calculation of the maximum authorized penalties that
may be imposed if supervised release is revoked. A term of supervised
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release shall run concurrently with any federal, state, or local term of
probation, parole or supervised release for another offense, but does
not run while the offender is imprisoned in connection with a conviction
for a federal, state, or local crime unless the period of imprisonment
is less than 30 days. Such interruption of the term of supervised
release is automatic, and is not dependent upon the issuance of a
warrant or an order of revocation by the Commission.
Sec. 2.202 Prerelease procedures.
(a) At least three months, but not more than six months, prior to
the release of a prisoner who has been sentenced to a term or terms of
supervised release by the Superior Court, the responsible prison
officials shall have the prisoner's release plan forwarded to CSOSA (or
to the appropriate U.S. Probation Office) for investigation. If the
CSOSA Supervision Officer (or U.S. Probation Officer) believes that any
special condition of supervised release should be imposed prior to the
release of the prisoner, he shall forward a request for such condition
to the Commission. The Commission may, upon such request or of its own
accord, impose any special condition in addition to the standard
conditions specified in Sec. 2.204, which shall take effect on the day
the prisoner is released.
(b) Upon the release of the prisoner, the responsible prison
officials shall instruct the prisoner, in writing, to report to his
assigned Supervision Officer within 72 hours, and shall inform the
prisoner that failure to report on time shall constitute a violation of
supervised release. If the prisoner is released to the custody of other
authorities, the prisoner shall report to his Supervision Officer within
72 hours after his release from the physical custody of such
authorities. If he is outside the District of Columbia and is unable to
report to the Supervision Officer to whom he is assigned within 72
hours, he shall report instead to the nearest U.S. Probation Office.
Sec. 2.203 Certificate of supervised release.
When an offender who has been released from prison to serve a term
of supervised release imposed by the Superior Court reports to his
Supervision Officer for the first time, the Supervision Officer shall
deliver to the releasee a certificate bearing the conditions of
supervised release imposed by the Commission and shall explain the
conditions to the releasee.
Sec. 2.204 Conditions of supervised release.
(a) The following conditions shall apply to every term of supervised
release, and are deemed by the Commission to be necessary to provide
adequate supervision and to protect the public from further crimes of
the releasee:
(1) The releasee shall not commit any federal, state, or local crime
during the term of supervision, nor shall he associate with persons
engaged in criminal activity. The releasee shall report within two days
to his Supervision Officer if he is arrested or questioned by any law
enforcement officer.
(2) The releasee shall not drink alcoholic beverages to excess. He
shall not purchase, possess, use or administer any controlled substance
unless prescribed for the releasee by a physician. The releasee shall
not frequent places where such controlled substances are illegally sold,
dispensed, used, or given away.
(3) The releasee shall submit to a drug urinalysis test, within 15
days of being placed on supervision, and to at least two periodic drug
tests thereafter, as ordered by his Supervision Officer. The Commission
may modify or suspend this condition if the record indicates that there
is a low risk of future substance abuse by the releasee.
(4) The releasee shall submit to a drug or alcohol test at any time
during the term of supervision, whenever such testing is ordered by his
Supervision Officer.
(5) The releasee shall not leave the limits fixed by his certificate
of supervised release without permission from his Supervision Officer.
(6) The releasee shall notify his Supervision Officer of the address
where he will reside and of any change in his place of residence within
two days of such change.
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(7) The releasee shall make a complete and truthful written report
(on a form provided for that purpose) to his Supervision Officer between
the first and third day of each month. He shall also report to his
Supervision Officer at other times as the officer directs, providing
complete and truthful information.
(8) The releasee shall not enter into any agreement to act as an
informant or special agent for any law-enforcement agency without prior
authorization from the Commission.
(9) The releasee shall work regularly unless excused by his
Supervision Officer, and shall support his legal dependants, if any, to
the best of his ability. He shall report within two days to his
Supervision Officer any changes in his employment or employment status.
(10) The releasee shall not associate with persons who have a
criminal record without the permission of his Supervision Officer.
(11) The releasee shall not possess a firearm or other dangerous
weapon.
(12) The releasee shall permit visits by his Supervision Officer to
his residence and to his place of business or occupation. He shall
permit confiscation by his Supervision Officer of any material which the
officer believes may constitute contraband in the releasee's residence,
place of business or occupation, vehicle, or on his person. The
Commission may also, when a reasonable basis for so doing is presented,
modify the conditions of supervised release to require the releasee to
permit his Supervision Officer to conduct searches and seizures of
concealed contraband on the releasee's person, and in any building,
vehicle, or other area under the releasee's control, at such times as
the officer shall decide.
(13) The releasee shall make a diligent effort to satisfy any fine,
restitution order, court costs or assessment, and/or court ordered child
support or alimony payment that has been, or may be, imposed, and shall
provide such financial information as may be requested by his
Supervision Officer that is relevant to the payment of the obligation.
If unable to pay the obligation in one sum, the releasee shall cooperate
with his Supervision Officer in establishing an installment payment
schedule. In determining whether to revoke supervised release for non-
compliance with this condition, the Commission shall consider the
releasee's employment status, earning ability, financial resources, and
any other special circumstances that may have a bearing on the matter.
Revocation shall not be ordered unless the releasee is found to be
deliberately evading or refusing compliance.
(14) If released to the District of Columbia, the releasee shall
submit to the sanctions imposed by his Community Supervision Officer
(within the limits established by the CSOSA Administrative Sanctions
Schedule) if the Community Supervision Officer finds that the releasee
has tested positive for illegal drugs or that he has committed any non-
criminal violation of the conditions of supervised release. Graduated
sanctions may include community service, curfew with electronic
monitoring, and/or a period of time in a community corrections center.
The releasee's failure to cooperate with a graduated sanction imposed by
his Supervision Officer will subject the releasee to the issuance of a
summons or warrant by the Commission, and a revocation hearing at which
the releasee will be afforded the opportunity to contest the allegations
upon which the sanction was based. In addition, the Commission may
override the imposition of a graduated sanction at any time and issue a
warrant or summons if it believes that the releasee is a risk to the
public safety or that he is not complying with this condition in good
faith.
(b) The Commission or a member thereof may at any time modify the
conditions of supervised release, which may include imposing additional
conditions. In so doing, the Commission shall consider the factors
referenced in 18 U.S.C. 3583(d). The releasee shall receive notice of
the proposed modification and unless waived shall have ten days
following receipt of such notice to express his views thereon. Following
the ten day period, the Commission
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shall have 21 days, exclusive of holidays, to modify the conditions of
supervised release. The ten-day notice requirement shall not apply to a
modification of the conditions of release in the following
circumstances:
(1) Following a revocation hearing;
(2) Upon a finding that immediate modification of the conditions of
release is required to prevent harm to the releasee or to the public; or
(3) In response to a request by the releasee.
(c) The Commission may, as a condition of supervised release,
require the releasee to reside in a community corrections center, or to
participate in the program of a residential treatment center, or both,
for all or part of the period of supervised release, as part of a
program of treatment.
(d) The Commission may require the releasee to remain at his place
of residence during non-working hours and, if the Commission so directs,
to have compliance with this condition monitored by telephone or
electronic signaling devices. A condition under this paragraph may be
imposed only as an alternative to incarceration.
(e) The Commission may require a releasee, when there is evidence of
prior or current alcohol dependence or abuse, to participate in an
alcohol aftercare treatment program. In such a case, the Commission will
require that the releasee abstain from the use of alcohol and/or all
other intoxicants during and after the course of treatment.
(f) The Commission may require a releasee, where there is evidence
of prior or current drug dependence or abuse, to participate in a drug
treatment program, which shall include at least two periodic tests to
determine whether the releasee has reverted to the use of drugs
(including alcohol). In such a case, the Commission will require that
the releasee abstain from the use of alcohol and/or all other
intoxicants during and after the course of treatment.
(g) If the conviction resulting in the term of supervised release is
the releasee's first conviction for a crime of domestic violence as
defined in 18 U.S.C. 3561(b), the releasee shall, at the direction of
his Supervision Officer, attend a public, private, or private nonprofit
offender rehabilitation program that has been approved by CSOSA (or the
U.S. Probation Office), in consultation with a State Coalition Against
Domestic Violence or other appropriate experts, if such an approved
program is readily available within a 50-mile radius of the legal
residence of the releasee. For the purposes of this condition, a ``court
of the United States'' in 18 U.S.C. 3561(b) shall include the District
of Columbia Superior Court. The Commission shall not be limited by this
requirement from imposing any appropriate condition with respect to a
repeat offender.
(h) A releasee who has committed an offense for which sex offender
registration is required under D.C. Code 24-1121 et seq., shall comply
with the registration requirements of Chapter 11 of Title 24, D.C. Code,
and with the sex offender registration laws of any state in which the
releasee resides, works, or attends school.
(i) Any releasee who absconds from supervision has effectively
prevented his term of supervised release from expiring. Therefore, the
releasee remains bound by the conditions of his release, and violations
committed at any time prior to execution of a warrant issued by the
Commission, whether before or after the originally scheduled expiration
date of the term of supervised release, may be charged as a basis for
revocation. In such a case, the warrant may be supplemented at any time.
(j) Releasees are expected by the Commission to understand the
conditions of supervision according to their plain meaning, and to seek
the guidance of their Supervision Officers before engaging in any
conduct that may constitute a violation thereof. Supervision Officers
may issue instructions to releasees to refrain from particular conduct
that would violate supervised release, or to take specific steps to
avoid or correct a violation thereof, as well as such other directives
as may be authorized by the conditions imposed by the Commission.
Sec. 2.205 Confidentiality of supervised release records.
(a) Consistent with the Privacy Act of 1974 (5 U.S.C. 552a(b)), the
contents of supervised release records shall be
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confidential and shall not be disclosed outside the Commission and CSOSA
(or the U.S. Probation Office) except as provided in paragraphs (b) and
(c) of this section.
(b) Information pertaining to a releasee may be disclosed to the
general public, without the consent of the releasee, as authorized by
Sec. 2.37.
(c) Information other than as described in Sec. 2.37 may be
disclosed without the consent of the releasee only pursuant to the
provisions of the Privacy Act of 1974 (5 U.S.C. 552a(b)) and the
implementing rules of the Commission or CSOSA, as applicable.
Sec. 2.206 Travel approval and transfers of supervision.
(a) A releasee's Supervision Officer may approve travel outside the
district of supervision without approval of the Commission in the
following situations:
(1) Trips not to exceed thirty days for family emergencies,
vacations, and similar personal reasons;
(2) Trips, not to exceed thirty days, to investigate reasonably
certain employment possibilities; and
(3) Recurring travel across a district boundary, not to exceed fifty
miles outside the district, for purpose of employment, shopping, or
recreation.
(b) Specific advance approval by the Commission is required for all
foreign travel, employment requiring recurring travel more than fifty
miles outside the district, and vacation travel outside the district of
supervision exceeding thirty days. A request for such permission shall
be in writing and must demonstrate a substantial need for such travel.
(c) A special condition imposed by the Commission prohibiting
certain travel shall apply instead of any general rules relating to
travel as set forth in paragraph (a) of this section.
(d) The district of supervision for a releasee under the supervision
of CSOSA shall be the District of Columbia, except that for the purpose
of travel permission under this section, the district of supervision
shall include the D.C. metropolitan area as defined in the certificate
of supervised release.
(e) A supervised releasee who is under the jurisdiction of the
Commission, and who is released or transfers to a district outside the
District of Columbia, shall be supervised by a U.S. Probation Officer
pursuant to 18 U.S.C. 3655.
(f) A supervised releasee may be transferred to a new district of
supervision with the permission of the supervision offices of both the
transferring and receiving district, provided such transfer is not
contrary to instructions from the Commission.
Sec. 2.207 Supervision reports to Commission.
An initial supervision report to confirm the satisfactory initial
progress of the releasee shall be submitted to the Commission 90 days
after the offender's release from prison, by the Supervision Officer
responsible for the releasee's supervision. A regular supervision report
shall be submitted to the Commission by the officer responsible for the
supervision of the releasee after the completion of 12 months of
continuous community supervision and annually thereafter. The
Supervision Officer shall submit such additional reports and information
concerning both the releasee, and the enforcement of the conditions of
supervised release, as the Commission may direct. All reports shall be
submitted according to the format established by the Commission.
Sec. 2.208 Termination of a term of supervised release.
(a) The Commission, in its discretion, may terminate a term of
supervised release and discharge the releasee from further supervision
at any time after the expiration of one year of supervised release, if
the Commission is satisfied that such action is warranted by the conduct
of the releasee and the interest of justice.
(b) Two years after release on supervision, and at least annually
thereafter, the Commission shall review the status of each releasee to
determine the need for continued supervision. In calculating such two-
year period there shall not be included any period of release prior to
the most recent release, nor any period served in confinement on any
other sentence. A review shall
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also be conducted whenever termination of supervision is specially
recommended by the releasee's Supervision Officer. If the term of
supervised release imposed by the court is two years or less,
termination of supervision shall be considered only if specially
recommended by the releasee's Supervision Officer.
(c) In determining whether to grant early termination of
supervision, the Commission shall calculate for the releasee a Salient
Factor Score under Sec. 2.20, and shall apply the following early
termination guidelines, provided that case-specific factors do not
indicate a need for continued supervision:
(1) For a releasee classified in the very good risk category and
whose current offense did not involve violence, termination of
supervision may be ordered after two continuous years of incident-free
supervision in the community.
(2) For a releasee classified in the very good risk category and
whose current offense involved violence other than high level violence,
termination of supervision may be ordered after three continuous years
of incident-free supervision in the community.
(3) For a releasee classified in the very good risk category and
whose current offense involved high level violence (without death of
victim resulting), termination of supervision may be ordered after four
continuous years of incident-free supervision in the community.
(4) For a releasee classified in other than the very good risk
category, whose current offense did not involve violence, and whose
prior record includes not more than one episode of felony violence,
termination of supervision may be ordered after three continuous years
of incident-free supervision in the community.
(5) For a releasee classified in other than the very good risk
category whose current offense involved violence other than high level
violence, or whose current offense did not involve violence but his
prior record includes two or more episodes of felony violence,
termination of supervision may be ordered after four continuous years
incident-free supervision in the community.
(6) For releasees in the following categories, release from
supervision prior to five years may be ordered only upon a case-specific
finding that, by reason of age, infirmity, or other compelling factors,
the releasee is unlikely to be a threat to the public safety:
(i) A releasee in other than the very good risk category whose
current offense involved high level violence;
(ii) A releasee whose current offense involved high level violence
with death of victim resulting; and
(iii) A releasee who is a sex offender serving a term of supervised
release that exceeds five years.
(7) The terms ``violence'' and ``high level violence'' are defined
in Sec. 2.80. The term ``incident-free supervision'' means that the
releasee has had no reported violations, and has not been the subject of
any arrest or law enforcement investigation that raises a reasonable
doubt as to whether the releasee has been able to refrain from law
violations while under supervision.
(d) Except in the case of a releasee covered by paragraph (c)(6) of
this section, a decision to terminate supervision below the guidelines
may be made if it appears that the releasee is a better risk than
indicated by the salient factor score (if classified in other than the
very good risk category), or is a less serious risk to the public safety
than indicated by a violent current offense or prior record. However,
termination of supervision prior to the completion of two years of
incident-free supervision will not be granted in any case unless case-
specific factors clearly indicate that continued supervision would be
counterproductive to the releasee's rehabilitation.
(e) A releasee with a pending criminal charge who is otherwise
eligible for an early termination from supervision shall not be
discharged from supervision until the disposition of such charge is
known.
Sec. 2.209 Order of termination.
When the Commission orders the termination of a term of supervised
release, it shall issue a certificate to the releasee granting the
releasee a full discharge from his term of supervised release. The
termination and discharge shall take effect only upon the actual
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delivery of the certificate of discharge to the releasee by his
Supervision Officer, and may be rescinded for good cause at any time
prior to such delivery.
Sec. 2.210 Extension of term.
(a) At any time during service of a term of supervised release, the
Commission may move the Superior Court to extend the term of supervised
release to the maximum term authorized by law, if less than the maximum
authorized term was originally imposed. If the Superior Court grants the
Commission's motion prior to the expiration of the term originally
imposed, the extension ordered by the Court shall take effect upon its
issuance.
(b) The Commission may move the Superior Court for an extension of a
term of supervised release if, for any reason, it finds that the
rehabilitation of the releasee, and/or the protection of the public
safety, is likely to require a longer period of supervision than the
Court originally contemplated. The Commission's grounds for making such
a finding shall be stated in the motion filed with the Court.
(c) The provisions of this section shall not apply to the
Commission's determination of an appropriate period of further
supervised release following revocation of a term of supervised release.
Sec. 2.211 Summons to appear or warrant for retaking releasee.
(a) If a releasee is alleged to have violated the conditions of his
release, and satisfactory evidence thereof is presented, a Commissioner
may:
(1) Issue a summons requiring the releasee to appear for a
preliminary interview or local revocation hearing; or
(2) Issue a warrant for the apprehension and return of the releasee
to custody.
(b) A summons or warrant under paragraph (a) of this section may be
issued or withdrawn only by a Commissioner.
(c) Any summons or warrant under this section shall be issued as
soon as practicable after the alleged violation is reported to the
Commission, except when delay is deemed necessary. Issuance of a summons
or warrant may be withheld until the frequency or seriousness of the
violations, in the opinion of a Commissioner, requires such issuance. In
the case of any releasee who is charged with a criminal offense and who
is awaiting disposition of such charge, issuance of a summons or warrant
may be:
(1) Temporarily withheld;
(2) Issued by the Commission and held in abeyance;
(3) Issued by the Commission and a detainer lodged with the
custodial authority; or
(4) Issued for the retaking of the releasee.
(d) A summons or warrant may be issued only within the maximum term
or terms of the period of supervised release being served by the
releasee, except as provided for an absconder from supervision in
Sec. 2.204(i). A summons or warrant shall be considered issued when
signed and either:
(1) Placed in the mail; or
(2) Sent by electronic transmission to the appropriate law
enforcement authority.
(e) The issuance of a warrant under this section operates to bar the
expiration of the term of supervised release. Such warrant maintains the
Commission's jurisdiction to retake the releasee either before or after
the normal expiration date of his term, and for such time as may be
reasonably necessary for the Commission to reach a final decision as to
revocation of the term of supervised release.
(f) A summons or warrant issued pursuant to this section shall be
accompanied by a warrant application stating the charges against the
releasee, the applicable procedural rights under the Commission's
regulations, and the possible actions which may be taken by the
Commission. A summons shall specify the time and place the releasee
shall appear. Failure to appear in response to a summons shall be
grounds for issuance of a warrant.
Sec. 2.212 Execution of warrant and service of summons.
(a) Any officer of any Federal or District of Columbia correctional
institution, any Federal Officer authorized to serve criminal process,
or any officer
[[Page 193]]
or designated civilian employee of the Metropolitan Police Department of
the District of Columbia, to whom a warrant is delivered, shall execute
such warrant by taking the releasee and returning him to the custody of
the Attorney General.
(b) Upon the arrest of the releasee, the officer executing the
warrant shall deliver to him a copy of the warrant application.
(c) If execution of the warrant is delayed pending disposition of
local charges, for further investigation, or for some other purpose, the
releasee is to be continued under supervision by the Supervision Officer
until the normal expiration of the sentence, or until the warrant is
executed, whichever first occurs. Monthly supervision reports are to be
submitted, and the releasee must continue to abide by all the conditions
of release.
(d) If any other warrant for the arrest of the releasee has been
executed or is outstanding at the time the Commission's warrant is
executed, the arresting officer may, within 72 hours of executing the
Commission's warrant, release the arrestee to such other warrant and
lodge the Commission's warrant as a detainer, voiding the execution
thereof, provided such action is consistent with the instructions of the
Commission. In other cases, the arrestee may be released from an
executed warrant whenever the Commission finds such action necessary to
serve the ends of justice.
(e) A summons to appear at a preliminary interview or revocation
hearing shall be served upon the releasee in person by delivering to the
releasee a copy of the summons and the application therefore. Service
shall be made by any Federal or District of Columbia officer authorized
to serve criminal process and certification of such service shall be
returned to the Commission.
(f) Official notification of the issuance of a Commission warrant
shall authorize any law enforcement officer within the United States to
hold the releasee in custody until the warrant can be executed in
accordance with paragraph (a) of this section.
Sec. 2.213 Warrant placed as detainer and dispositional review.
(a) When a releasee is a prisoner in the custody of other law
enforcement authorities, or is serving a new sentence of imprisonment
imposed for a crime (or for a violation of some other form of community
supervision) committed while on supervised release, a violation warrant
may be lodged against him as a detainer.
(b) The Commission shall review the detainer upon the request of the
prisoner pursuant to the procedure set forth in Sec. 2.47(a)(2).
Following such review, the Commission may:
(1) Withdraw the detainer and order reinstatement of the prisoner to
supervision upon release from custody;
(2) Order a dispositional revocation hearing to be conducted at the
institution in which the prisoner is confined; or
(3) Let the detainer stand until the new sentence is completed.
Following the execution of the Commission's warrant, and the transfer of
the prisoner to an appropriate federal facility, an institutional
revocation hearing shall be conducted.
(c) Dispositional revocation hearings pursuant to this section shall
be conducted in accordance with the provisions at Sec. 2.216 governing
institutional revocation hearings. A hearing conducted at a state or
local facility may be conducted either by a hearing examiner or by any
federal, state, or local official designated by a Commissioner.
Following a revocation hearing conducted pursuant to this section, the
Commission may take any action authorized by Sec. 2.218 and 2.219.
(d) The date the violation term commences is the date the
Commission's warrant is executed. A releasee's violation term (i.e., the
term of imprisonment and/or further term of supervised release that the
Commission may require the releasee to serve after revocation) shall
start to run only upon the offender's release from the confinement
portion of the intervening sentence.
(e) An offender whose supervised release is revoked shall be given
credit for all time in confinement resulting from any new offense or
violation that is considered by the Commission as a
[[Page 194]]
basis for revocation, but solely for the purpose of satisfying the time
ranges in the reparole guidelines at Sec. 2.21. The computation of the
offender's sentence, and the forfeiture of time on supervised release,
are not affected by such guideline credit.
Sec. 2.214 Revocation; Preliminary interview.
(a) Interviewing officer. A releasee who is retaken on a warrant
issued by the Commission shall promptly be offered a preliminary
interview by a Supervision Officer (or other official designated by the
Commission). The purpose of the preliminary interview is to enable the
Commission to determine if there is probable cause to believe that the
releasee has violated his conditions of release as charged, and if so,
whether a local or institutional revocation hearing should be conducted.
Any Supervision Officer or U.S. Probation Officer in the district where
the releasee is confined may conduct the preliminary interview, provided
he is not the officer who recommended that the warrant be issued.
(b) Notice and opportunity to postpone interview. (1) At the
beginning of the preliminary interview, the interviewing officer shall
ascertain that the warrant application has been given to the releasee as
required by Sec. 2.212(b). The interviewing officer shall advise the
releasee that he may go forward with the interview, or have the
interview postponed in order to obtain an attorney and/or witnesses and
evidence on his behalf. A postponement may be requested by signing the
form provided by the interviewing officer, and by indicating on such
form the reason for the requested postponement. If the releasee wishes
to be represented by counsel, and counsel is not already available and
present, the releasee may request a postponement to engage the services
of counsel, to apply for counsel to be assigned by the D.C. Public
Defender Service, or to apply for appointment of counsel under 28 U.S.C.
3006A in cases where the releasee has been arrested outside the District
of Columbia.
(2) If a postponement is requested, the releasee may request the
Commission to obtain the presence of adverse witnesses (i.e., persons
who have given information upon which revocation may be based). Such
adverse witnesses may be requested to attend the postponed preliminary
interview if the releasee meets the requirements at Sec. 2.215(a) for a
local revocation hearing. The releasee shall be given advance notice of
the time and place of a postponed preliminary interview.
(c) Review of the charges. At the preliminary interview, the
interviewing officer shall review the violation charges with the
releasee and shall apprise the releasee of the evidence that has been
presented to the Commission. The interviewing officer shall ascertain
whether the releasee admits or denies each charge listed on the warrant
application, as well as the releasee's explanation of the facts giving
rise to each charge. The officer shall also receive the statements of
any witnesses and documentary evidence on behalf of the releasee. At a
postponed preliminary interview, the hearing officer shall also permit
the cross-examination of any adverse witnesses in attendance. However,
in such cases, the Commission will ordinarily have ordered a combined
preliminary interview and local revocation hearing as provided in
paragraph (f) of this section.
(d) Probable cause determination. At the conclusion of the
preliminary interview, the interviewing officer shall inform the
releasee of his recommended decision as to whether there is probable
cause to believe that the releasee has violated the conditions of
release, and shall submit to the Commission a digest of the interview
together with a recommended decision.
(1) If the interviewing officer's recommended decision is that there
is no probable cause to believe that the releasee has violated the
conditions of his release, a Commissioner shall review the recommended
decision and notify the releasee of his final decision concerning
probable cause as expeditiously as possible. A finding of no probable
cause shall be implemented without delay.
(2) If the interviewing officer's recommended decision is that there
is probable cause to believe that the releasee has violated the
conditions of
[[Page 195]]
his release, the Commissioner shall notify the releasee of the final
decision concerning probable cause within 21 days of the date of the
preliminary interview. The Commission shall either schedule a revocation
hearing, or offer the releasee the option of an expedited revocation
without a hearing, pursuant to the procedure set forth in Sec. 2.66.
(3) If the Commission finds probable cause to believe that the
releasee has violated the conditions of his release, reinstatement to
supervision or release pending further proceedings may be ordered in the
Commission's discretion if it determines that:
(i) Continuation of revocation proceedings is not warranted despite
the violations found; or
(ii) Incarceration pending further revocation proceedings is not
warranted by the alleged frequency or seriousness of such violation or
violations, and the releasee is neither likely to fail to appear for
further proceedings, nor constitutes a danger to himself or others.
(e) Conviction as probable cause. Conviction of any Federal,
District of Columbia, State, or local crime committed subsequent to the
commencement of the term of supervised release shall constitute probable
cause for the purposes of this section, and no preliminary interview
shall be conducted unless ordered by a Commissioner to consider
additional violation charges that may be determinative of the
Commission's decision regarding revocation.
(f) Local revocation hearing. A postponed preliminary interview may
be conducted as a local revocation hearing if the releasee has been
advised that the postponed preliminary interview will constitute his
final revocation hearing. It shall be the Commission's policy to conduct
a combined preliminary interview and local revocation hearing whenever
adverse witnesses are required to appear and give testimony with respect
to contested charges.
(g) Late received charges. If, after probable cause has been found
to proceed with a revocation hearing, the Commission is notified of an
additional charge, the Commission may:
(1) Remand the case for a supplemental preliminary interview if the
new charge may require a local revocation hearing;
(2) Notify the releasee that the additional charge will be
considered at the revocation hearing without conducting a supplemental
interview; or
(3) Determine that the new charge will not be considered at the
revocation hearing.
Sec. 2.215 Place of revocation hearing.
(a) If the releasee requests a local revocation hearing, he shall be
given a revocation hearing reasonably near the place of the alleged
violation(s) or arrest, with the opportunity to contest the charges
against him, if the following conditions are met:
(1) The releasee has not been convicted of a crime committed while
under supervision; and
(2) The releasee denies all charges against him.
(b) The releasee shall also be given a local revocation hearing if
he admits (or has been convicted of) one or more charged violations, but
denies at least one unadjudicated charge that may be determinative of
the Commission's decision regarding revocation or the length of any new
term of imprisonment, and the releasee requests the presence of one or
more adverse witnesses regarding that contested charge. If the
appearance of such witnesses at the hearing is precluded by the
Commission for good cause, a local revocation hearing shall not be
ordered.
(c) If there are two or more contested charges, a local revocation
hearing may be conducted near the place of the violation chiefly relied
upon by the Commission as a basis for the issuance of the warrant or
summons.
(d) A releasee who voluntarily waives his right to a local
revocation hearing, or who admits one or more charged violations without
contesting any unadjudicated charge that may be determinative of the
Commission's decision regarding revocation and/or imposition of a new
term of imprisonment, or who is retaken following completion of a
sentence of imprisonment for a
[[Page 196]]
new crime, shall be given an institutional revocation hearing upon his
return or recommitment to an institution. An institutional revocation
hearing may also be conducted in the District of Columbia jail or prison
facility in which the releasee is being held. (However, a Commissioner
may, on his own motion, designate any such case for a local revocation
hearing instead.) The difference in procedures between a ``local
revocation hearing'' and an ``institutional revocation hearing'' is set
forth in Sec. 2.216(b).
(e) A releasee who is retaken on a warrant issued by the Commission
shall remain in custody until final action relative to the revocation of
his term of supervised release, unless otherwise ordered by the
Commission under Sec. 2.214(d)(3). A releasee who has been given a
revocation hearing pursuant to the issuance of a summons shall remain on
supervision pending the decision of the Commission, unless the
Commission has ordered otherwise.
(f) A local revocation hearing shall be scheduled to be held within
sixty days of the probable cause determination. An institutional
revocation hearing shall be scheduled to be held within ninety days of
the date of the execution of the violator warrant upon which the
releasee was retaken. However, if a releasee requests and receives any
postponement, or consents to a postponement, or by his actions otherwise
precludes the prompt conduct of such proceedings, the above-stated time
limits may be extended.
(g) A local revocation hearing may be conducted by a hearing
examiner or by any federal, state, or local official who is designated
by a Commissioner to be the presiding hearing officer. An institutional
revocation hearing may be conducted by an examiner of the Commission.
Sec. 2.216 Revocation hearing procedure.
(a) The purpose of the revocation hearing shall be to determine
whether the releasee has violated the conditions of his supervised
release, and, if so, whether his release should be revoked or
reinstated.
(b) At a local revocation hearing, the alleged violator may present
voluntary witnesses and documentary evidence in his behalf. The alleged
violator may also request the Commission to compel the attendance of any
adverse witnesses for cross-examination, and any other relevant
witnesses who have not volunteered to attend. At an institutional
revocation hearing, the alleged violator may present voluntary witnesses
and documentary evidence in his behalf, but may not request the
Commission to secure the attendance of any adverse or favorable witness.
At any hearing, the presiding hearing officer may limit or exclude any
irrelevant or repetitious statement or documentary evidence, and may
prohibit the releasee from contesting matters already adjudicated
against him in other forums.
(c) At a local revocation hearing, the Commission shall, on the
request of the alleged violator, require the attendance of any adverse
witnesses who have given statements upon which revocation may be based,
subject to a finding of good cause as described in paragraph (d) of this
section. The adverse witnesses who are present shall be made available
for questioning and cross-examination in the presence of the alleged
violator. The Commission may also require the attendance of adverse
witnesses on its own motion.
(d) The Commission may excuse any requested adverse witness from
appearing at the hearing (or from appearing in the presence of the
alleged violator) if it finds good cause for so doing. A finding of good
cause for the non-appearance of a requested adverse witness may be
based, for example, on a significant possibility of harm to the witness,
or the witness not being reasonably available when the Commission has
documentary evidence that is an adequate substitute for live testimony.
(e) All evidence upon which the finding of violation may be based
shall be disclosed to the alleged violator at or before the revocation
hearing. The presiding hearing officer may disclose documentary evidence
by permitting the alleged violator to examine the document during the
hearing, or where appropriate, by reading or summarizing the document in
the presence of the alleged violator.
(f) An alleged violator may be represented by an attorney at either
a
[[Page 197]]
local or an institutional revocation hearing. In lieu of an attorney, an
alleged violator may be represented at any revocation hearing by a
person of his choice. However, the role of such non-attorney
representative shall be limited to offering a statement on the alleged
violator's behalf. Only licensed attorneys shall be permitted to
question witnesses, make objections, and otherwise provide legal
representation for supervised releasees, except in the case of law
students appearing before the Commission as part of a court-approved
clinical practice program. Such law students must be under the personal
direction of a lawyer or law professor who is physically present at the
hearing, and the examiner shall ascertain that the releasee consents to
the procedure.
Sec. 2.217 Issuance of subpoena for appearance of witnesses or production of documents.
(a)(1) If any adverse witness (i.e., a person who has given
information upon which revocation may be based) refuses, upon request by
the Commission, to appear at a preliminary interview or local revocation
hearing, a Commissioner may issue a subpoena for the appearance of such
witness.
(2) In addition, a Commissioner may, upon a showing by the releasee
that a witness whose testimony is necessary to the proper disposition of
his case will not appear voluntarily at a local revocation hearing or
provide an adequate written statement of his testimony, issue a subpoena
for the appearance of such witness at the revocation hearing.
(3) A subpoena may also be issued at the discretion of a
Commissioner if an adverse witness is judged unlikely to appear as
requested, or if the subpoena is deemed necessary for the orderly
processing of the case.
(b) A subpoena may require the production of documents as well as,
or in lieu of, a personal appearance. The subpoena shall specify the
time and the place at which the person named therein is commanded to
appear, and shall specify any documents required to be produced.
(c) A subpoena may be served by any Federal or District of Columbia
officer authorized to serve criminal process. The subpoena may be served
at any place within the judicial district in which the place specified
in the subpoena is located, or any place where the witness may be found.
Service of a subpoena upon a person named therein shall be made by
delivering a copy thereof to such a person.
(d) If a person refuses to obey such subpoena, the Commission may
petition a court of the United States for the judicial district in which
the revocation proceeding is being conducted, or in which such person
may be found, to require such person to appear, testify, or produce
evidence. If the court issues an order requiring such person to appear
before the Commission, failure to obey such an order is punishable as
contempt, as provided in 18 U.S.C. 4214(a)(2).
Sec. 2.218 Revocation decisions.
(a) Whenever a releasee is summoned or retaken by the Commission,
and the Commission finds by a preponderance of the evidence that the
releasee has violated one or more conditions of his supervised release,
the Commission may take any of the following actions:
(1) Restore the releasee to supervision, and where appropriate:
(i) Reprimand the releasee;
(ii) Modify the releasee's conditions of release;
(iii) Refer the releasee to a residential community corrections
center for all or part of the remainder of his term of supervised
release; or
(2) Revoke the term of supervised release.
(b) If supervised release is revoked, the Commission shall determine
whether the releasee shall be returned to prison to serve a new term of
imprisonment, and the length of that term, or whether a new term of
imprisonment shall be imposed but limited to time served. If the
Commission imposes a new term of imprisonment that is less than the
applicable maximum term authorized by law, the Commission shall also
determine whether to impose a further term of supervised release to
commence after the new term of imprisonment has been served. If the new
term of imprisonment is limited to
[[Page 198]]
time served, any further term of supervised release shall commence upon
the issuance of the Commission's order. Notwithstanding the above, if a
releasee is serving another term of imprisonment of 30 days or more for
any federal, state, or local crime, any further term of supervised
release imposed by the Commission shall not commence until that term of
imprisonment has been served.
(c) A releasee whose term of supervised release is revoked by the
Commission shall receive no credit for time spent on supervised release,
including any time spent in confinement on other sentences (or in a
halfway house as a condition of supervised release) prior to the
execution of the Commission's warrant.
(d) The Commission's decision regarding the imposition of a term of
imprisonment following revocation of supervised release, and any further
term of supervised release, shall be made pursuant to the limitations
set forth in Sec. 2.219. Within those limitations, the appropriate
length of any term of imprisonment shall be determined by reference to
the guidelines at Sec. 2.21.
(e) Whenever the Commission imposes a term of imprisonment upon
revocation of supervised release that is less than the authorized
maximum term, it shall be the Commission's general policy to impose a
further term of supervised release that is the maximum permitted by
Sec. 2.219. If the Commission imposes a new term of imprisonment that is
equal to the maximum term authorized by law (or in the case of a
subsequent revocation, that uses up the remainder of the maximum term of
imprisonment authorized by law), the Commission may not impose a further
term of supervised release.
(f) Where deemed appropriate, the Commission may depart from the
guidelines at Sec. 2.21 (with respect to the imposition of a new term of
imprisonment) in order to permit the imposition of a further term of
supervised release.
(g) Decisions under this section shall be made upon the concurrence
of two Commissioner votes, except that a decision to override an
examiner panel recommendation shall require the concurrence of three
Commissioner votes. The Commission's decision shall ordinarily be issued
within 21 days of the hearing, excluding weekends and holidays.
Sec. 2.219 Maximum terms of imprisonment and supervised release.
(a) Imprisonment; first revocation. When a term of supervised
release is revoked, the maximum authorized term of imprisonment that the
Commission may require the offender to serve, in accordance with D.C.
Code Sec. 24-203.1(b)(7), shall be:
(1) Not more than 5 years, if the maximum term of imprisonment
authorized for the offense is life, or if the offense is statutorily
designated as a Class A felony;
(2) Not more then 3 years, if the maximum term of imprisonment
authorized for the offense is 25 years or more, but less than life, and
the offense is not statutorily designated as a Class A felony;
(3) Not more than 2 years, if the maximum term of imprisonment
authorized for the offense is 5 years or more, but less than 25 years;
or
(4) Not more than 1 year, if the maximum term of imprisonment
authorized for the offense is less than 5 years.
(b) Further term of supervised release; first revocation.--(1) When
a term of supervised release is revoked, and the Commission imposes less
than the maximum term of imprisonment authorized by paragraph (a) of
this section, the Commission may also impose a further term of
supervised release after imprisonment.
(2) The maximum authorized length of such further term of supervised
release shall be the original maximum term of supervised release that
the sentencing court was authorized to impose, less the term of
imprisonment imposed by the Commission upon revocation of supervised
release. The original maximum authorized term of supervised release is
as follows:
(i) Five years if the maximum term of imprisonment authorized for
the offense of conviction is 25 years or more;
(ii) Three years if the maximum term of imprisonment authorized for
the offense of conviction is more than one year but less than 25 years;
and
[[Page 199]]
(iii) Life if the person is required to register for life, and 10
years in any other case, if the offender has been sentenced for an
offense for which registration is required by the Sex Offender
Registration Act of 1999.
(3) For example, in the case of a five-year term of supervised
release carrying a maximum period of imprisonment of three years, the
Commission may impose a three-year term of imprisonment with no
supervised release to follow, or any term of imprisonment of less than
three years with a further term of supervised release of five years
minus the term of imprisonment actually imposed (such as a one-year term
of imprisonment followed by a four-year term of supervised release, or a
two-year term of imprisonment followed by a three-year term of
supervised release).
(c) Reference table. The following table may be used in most cases
as a reference to determine both the maximum authorized term of
imprisonment and the original maximum authorized term of supervised
release:
----------------------------------------------------------------------------------------------------------------
Original authorized
D.C. Code reference (original Offense description term of supervised Maximum authorized new
conviction) release term of imprisonment
----------------------------------------------------------------------------------------------------------------
Title 22
----------------------------------------------------------------------------------------------------------------
22-103, 23-1331.................... Attempted crime of violence 3 years............... 2 years.
22-104(a).......................... 1 prior.................... various............... various.
2+ priors.................. various............... various.
22-104a(a)(1)...................... Three strikes for felonies* 5 years............... 5 years.
22-104a(a)(2)...................... Three strikes for violent 5 years............... 5 years.
felonies*.
22-105............................. Aiding & abetting.......... various............... various.
22-105a(a)......................... Conspiracy................. 3 years............... 2 years.
If underlying offense < 5.. 3 years............... 1 year.
22-106............................. Accessory after the fact... various............... various.
Capital crimes............. 3 years............... 2 years.
22-107............................. Offenses not covered by DC 3 years............... 2 years.
Code.
22-401............................. Arson...................... 3 years............... 2 years
22-402............................. Arson-own property......... 3 years............... 2 years.
22-403............................. DP $200+................... 3 years............... 2 years.
22-501; see 24-203.1(e)............ Assault with intent to kill/ 3 years or not period of SOR.
deg., child sex abuse.
22-501, 3202....................... Assault with intent to kill 5 years............... 5 years.
etc. while armed.
22-502............................. Assault with a Dangerous 3 years............... 2 years.
Weapon.
22-503............................. Assault with intent to 3 years............... 2 years.
commit an offense other
than those in Sec. 22 501.
22-504............................. Stalking--2nd offense...... 3 years............... 1 year.
3rd+ offense............... 3 years............... 1 year.
22-504.1(a), 3202.................. Aggravated assault while 5 years............... 5 years.
armed*.
22-504.1(b)........................ Aggravated assault......... 3 years............... 2 years.
22-504.1(c)........................ Attempted aggravated 3 years............... 2 years.
assault.
22-505(a), 24-203.1(f)............. Assault on a police officer 3 years............... 2 years.
22-505(b).......................... Assault on a police officer 3 years............... 2 years.
while armed.
22-506............................. Mayhem/malicious 3 years............... 2 years.
disfigurement.
22-601............................. Bigamy..................... 3 years............... 2 years.
22-704(a).......................... Corrupt influence.......... 3 years............... 2 years.
22-712(c).......................... Bribery--Public Servant.... 3 years............... 2 years.
22-713(c).......................... Bribery--Witness........... 3 years............... 2 years.
22-722(b).......................... Obstructing Justice *...... 5 years............... 5 years.
22-723(b).......................... Evidence Tampering......... 3 years............... 1 year.
22-752(b)(2)....................... Counterfeiting............. 3 years............... 1 year.
22-752(b)(3)....................... Counterfeiting............. 3 years............... 2 years.
22-901(a), (c)(1).................. 1 deg.Cruelty to Children. 3 years............... 2 years.
22-901(b), (c)(2).................. 2 deg.Cruelty to Children. 3 years............... 2 years.
22-1122(d)......................... Inciting riot w/injury..... 3 years............... 2 years.
22-1303............................ False impersonation........ 3 years............... 2 years.
22-1304............................ Impersonating a public 3 years............... 1 year.
official.
22-1410............................ Bad Checks $100+........... 3 years............... 1 year.
22-1501............................ Illegal lottery............ 3 years............... 1 year.
22-1504............................ Gaming..................... 3 years............... 2 years.
22-1510, 1511...................... Bucketing--2nd+ offense.... 3 years............... 2 years.
22-1513(a)......................... Corrupt influence-- 3 years............... 2 years.
Athletics.
22-1801(a)......................... 1 deg. Burglary............ 5 years............... 3 years.
22-1801(b)......................... 2 deg. Burglary............ 3 years............... 2 years.
22-1801, 3202...................... Burglary while armed *..... 5 years............... 5 years.
22-1901............................ Incest..................... 3 years or not period of SOR.
[[Page 200]]
22-2001(e)......................... Obscenity 2nd+ offense..... 3 years or not period of SOR.
22-2012, 2013...................... Sex performance w/minors--. 3 years or not period of SOR.
2nd offense................
22-2101............................ Kidnapping *............... 5 years............... 5 years.
22-2101, 3202...................... Kidnapping while armed *... 5 years............... 5 years.
22-2307............................ Felony Threats............. 3 years............... 2 years.
22-2401, 2404...................... Murder I *................. 5 years............... 5 years.
22-2401, 2402, 3202................ Murder I while armed *..... 5 years............... 5 years.
22-2402, 2402...................... Murder I--obstruction of 5 years............... 5 years.
railway *.
22-2403, 2402...................... Murder II *................ 5 years............... 5 years.
22-2403, 2402, 3202................ Murder II while armed *.... 5 years............... 5 years.
22-2405............................ Manslaughter............... 5 years............... 3 years.
22-2405, 3202...................... Manslaughter while armed *. 5 years............... 5 years.
22-2406............................ Murder of Police Officer... None (LWOR)...........
22-2511(b)......................... Perjury.................... 3 years............... 2 years.
22-2512............................ Subornation of Perjury..... 3 years............... 2 years.
22-2513(b)......................... False Swearing............. 3 years............... 1 year.
22-2601(b)......................... Escape..................... 3 years............... 2 years.
22-2603............................ Introducing contraband into 3 years............... 2 years.
prison.
22-2704............................ Child Prostitution: 3 years or not period of SOR.
Harboring..................
22-2705............................ Prostitution: Inducing..... 3 years or not period of SOR (if
child victim).
22-2706............................ Compelling.................
22-2707............................ Arranging..................
22-2709............................ Detaining..................
22-2710............................ Procuring..................
22-2711............................ Procuring..................
22-2712............................ Operating..................
22-2708............................ Prostitution, causing 3 years............... 2 years.
spouse to.
22-2901............................ Robbery.................... 3 years............... 2 years.
22-2901, 3202...................... Armed Robbery*............. 5 years............... 5 years.
22-2902............................ Attempted Robbery.......... 3 years............... 1 year.
22-2903(a)......................... Carjacking................. 3 years............... 2 years.
22-2903(b)......................... Armed Carjacking*.......... 5 years............... 5 years.
22-3103............................ Grave Robbing.............. 3 years............... 1 year.
22-3105............................ Destruction of property by 3 years............... 2 years.
explosives.
22-3118............................ Malicious water pollution.. 3 years............... 1 year.
22-3119............................ Obstructing railways....... 3 years............... 2 years.
22-3202............................ Committing or attempting to 5 years............... 5 years.
commit violent crime while
armed.
22-3202.1.......................... Gun-free zone.............. various............... various.
22-3203, 24-203.1(f)............... Unlawful possession of a 3 years............... 2 years.
pistol by a felon, etc.
(UPP) 2nd+offense.
22-3204(a)(1)-(2).................. Carrying a pistol without a 3 years............... 2 years.
license. 3 years............... 2 years.
1st offense................
2nd+offense ..............
22-3204(b)......................... Possession of a firearm 3 years............... 2 years.
while committing a crime
of violence or dangerous
crime (PFDCVDC).
22-3214............................ Possession of a prohibited 3 years............... 2 years.
weapon (PPW).
2nd+offense ..............
22-3215a........................... Molotov cocktails--1st 3 years............... 2 years.
offense.
2nd offense................ 3 years............... 2 years.
3rd* offense............... 5 years............... 5 years.
22-3427............................ B&E vending machines....... 3 years............... 1 year.
22-3601, 24-203.1(f)............... Possessing Implements of 3 years............... 2 years.
Crime 2nd+ offense.
22-3812............................ 1 deg. Theft............... 3 years............... 2 years.
22-3814.1 (d)(2)................... Deceptive Labeling......... 3 years............... 2 years.
22-3815(d)(1)...................... Unlawful use of a vehicle-- 3 years............... 2 years.
private.
22-3815(d)(2)...................... Unlawful use of a vehicle-- 3 years............... 1 year.
rental.
22-3821(a), 3822(a)................ 1 deg.Fraud $250+......... 3 years............... 2 years.
22-3821(b), 3822(b)................ 2 deg.Fraud $250+......... 3 years............... 1 year.
22-3823............................ Credit Card Fraud.......... 3 years............... 2 years.
$250+......................
22-3825.2, 3825.4(a)............... 1 deg. Insurance Fraud..... 3 years............... 2 years.
22-3825.3, 3825.4(b)............... 2 deg. Insurance Fraud.....
1st offense................ 3 years............... 2 years.
2nd offense................ 3 years............... 2 years.
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22-3831(d)......................... Trafficking in stolen 3 years............... 2 years.
property.
22-3832............................ Receiving stolen property 3 years............... 2 years.
$250+.
22-3841, 3842...................... Forgery: Legal tender...... 3 years............... 2 years.
Token...................... 3 years............... 2 years.
Other...................... 3 years............... 1 year.
22-3851(b)......................... Extortion.................. 3 years............... 2 years.
22-3851(b), 3852(b), 3202.......... Armed extortion or 5 years............... 5 years.
blackmail with threats of
violence*.
22-3852(b)......................... Blackmail.................. 3 years............... 2 years.
22-3901............................ Senior Citizen Victim...... various............... various.
22-3902............................ Citizen Patrol Victim...... various............... various.
22-4003............................ Bias-related crime......... various............... various.
22-4102, 24-203.1(e)............... 1 deg. Sex Abuse*.......... 5 years or not period of SOR.
22-4102, 3202...................... 1 deg. Sex Abuse while 5 years or not period of SOR.
22-4103, 24-203.1(e)............... 2 deg. Sex Abuse........... 3 years or not period of SOR.
22-4103, 3202...................... 2 deg. Sex Abuse while 5 years or not period of SOR.
22-4104............................ 3 deg. Sex Abuse........... 3 years or not period of SOR.
2-4105............................. 4 deg. Sex Abuse........... 3 years or not period of SOR.
2-4108, 24-203.1(e)................ 1 deg.Child Sex Abuse*.... 5 years or not period of SOR.
22-4108, 3202...................... 1 deg.Child Sex Abuse 5 years or not period of SOR.
22-4109, 24-203.1(e)............... 2 deg.Child Sex Abuse..... 3 years or not period of SOR.
22-4109, 3202...................... 2 deg.Child Sex Abuse 5 years or not period of SOR.
22-4110, 24-203.1(e)............... Enticing a child........... 3 years or not period of SOR.
2-4113............................. 1 deg. Sex Abuse Ward...... 3 years or not period of SOR.
2-4114............................. 2 deg. Sex Abuse Ward...... 3 years or not period of SOR.
2-4115............................. 1 deg. Sex Abuse Patient... 3 years or not period of SOR.
2-4116............................. 2 deg. Sex Abuse Patient... 3 years or not period of SOR.
2-4118............................. Attempt 1 deg. Sex and 1 3 years or not period of SOR.
Attempt Other.............. various or not period of SOR.
22-4120............................ Aggravated 1 deg. Sex and 5 years or not period of SOR.
Aggravated other........... various or not period of SOR.
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Title 23
----------------------------------------------------------------------------------------------------------------
23-1327(a)(1)...................... Bail Reform Act............ 3 years............... 2 years.
23-1328(a)(1)...................... Committing a felony on 3 years............... 2 years.
release.
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Title 24
----------------------------------------------------------------------------------------------------------------
24-1113............................ Sex offender failure to 3 years............... 2 years.
register--2nd offense.
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Title 33
----------------------------------------------------------------------------------------------------------------
33-541(a)-(b)...................... Manufacture, distribute, or 5 years............... 3 years.
PWID I, II narcotics
(heroin, cocaine, PCP).
I, II, III non-narcotic.... 3 years............... 2 years.
IV......................... 3 years............... 1 year.
33-541 et seq., 22-3202............ Distribution or PWID drugs 5 years............... 5 years.
while armed*.
33-543............................. Drugs--Fraud............... 3 years............... 1 year.
33-543a............................ Drugs--Maintaining house... 3 years............... 3 years.
33-546............................. Drugs--Distribution to various............... various.
minors.
33-547............................. Drugs--Enlisting minors-- 3 years............... 2 years.
1st offense.
2nd + offense.............. 3 years............... 2 years.
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33-547.1(b)........................ Drug-free zones............ various............... various.
33-548............................. Drugs--2nd + offense....... various............... various.
33-549............................. Drugs--Attempt or various............... various.
Conspiracy.
33-603(b).......................... Possession of drug 3 years............... 1 year.
paraphernalia w/intent to
use it--2nd + offense.
33-603(c).......................... Delivering drug 3 years............... 2 years.
paraphernalia to a minor.
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Title 40
----------------------------------------------------------------------------------------------------------------
40-713............................. Negligent homicide 3 years............... 2 years.
(vehicular).
40-718............................. Smoke screens.............. 3 years............... 2 years.
----------------------------------------------------------------------------------------------------------------
Notes: (1) An asterisk means that the offense is statutorily designated as a Class A felony.
(2) If the defendant is a sex offender subject to registration, the Original Authorized Term of Supervised
Release is the maximum period of registration to which the sex offender is subject (ten years or life). Sex
offender registration is required for crimes such as first degree sexual abuse, and such crimes are listed on
this Table with the notation `` periods of SOR'' as the Original Authorized Term of Supervised
Release. Sex offender registration, however, may also be required for numerous crimes (such as burglary or
murder) if a sexual act or contact was involved or was the offender's purpose. In such cases, the offender's
status will be determined by the presence of an order from the sentencing court pursuant to D.C. Code 24-1123
certifying that the defendant is a sex offender.
(3) If the defendant committed his offense on or after August 5, 2000, but before August 11, 2000, the maximum
authorized terms of imprisonment and further supervised release shall be determined by reference to 18 U.S.C.
3583.
(d) Imprisonment; successive revocations.--(1) When the Commission
revokes a term of supervised release that was imposed by the Commission
upon a previous revocation of supervised release, the maximum term of
imprisonment is the maximum term authorized by paragraph (a) of this
section, less the term or terms of imprisonment that were previously
imposed by the Commission. In calculating such previously-imposed term
or terms of imprisonment, the Commission shall use the term as imposed
without deducting any good time credits that may have been earned by the
offender prior to his release from prison. In no case shall the total of
successive terms of imprisonment imposed by the Commission exceed the
maximum term of imprisonment that the Commission was authorized to
impose in the first revocation order.
(2) For example, in the case of a five-year term of supervised
release carrying a maximum term of imprisonment of three years, the
Commission at the first revocation may have imposed a one-year term of
imprisonment and a further four-year term of supervised release. At the
second revocation, the maximum authorized term of imprisonment will be
two years, which is the original maximum authorized term of imprisonment
of three years minus the one-year term of imprisonment that was imposed
at the first revocation.
(e) Further term of supervised release; successive revocations.--(1)
When the Commission revokes a term of supervised release that was
imposed by the Commission following a previous revocation of supervised
release, the Commission may also impose a further term of supervised
release. The maximum authorized length of such a term of supervised
release shall be the original maximum authorized term of supervised
release as set forth in paragraph (b) of this section, less the total of
the terms of imprisonment imposed by the Commission on the same sentence
(including the term of imprisonment imposed in the current revocation).
(2) For example, in the case of a five-year term of supervised
release carrying a maximum period of imprisonment of three years, the
Commission at the first revocation may have imposed a one-year term of
imprisonment and a four-year further term of supervised release. If, at
a second revocation, the Commission imposes another one-year term of
imprisonment, the maximum authorized further term of supervised release
will be three years (the original five-year period minus the total of
two years imprisonment).
(f) Effect of sentencing court imposing less than the maximum
authorized term of supervised release. If the Commission has revoked
supervised release, the maximum authorized period of further supervised
release is determined
[[Page 203]]
by reference to the original maximum authorized term as a set forth in
paragraph (b) of this section, even if the sentencing court did not
originally impose the maximum authorized term.