Willis v. USPC

1Pursuant to 5TH Cir. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH Cir. R. 47.5.4.
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________________
No. 00-60755
(Summary Calendar)
__________________________
JOHN CLARK WILLIS,
Petitioner,
versus
UNITED STATES PAROLE COMMISSION,
Respondent.
___________________________________________________
Appeal from the Determination
of the United States Parole Commission
(18 USC 4106 A)
___________________________________________________
June 1, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:1
John Clark Willis (“Willis”) appeals his release-date
determination by the United States Parole Commission (the
“Commission”). Willis asserts several claims, including one
alleging legal error by the Commission in refusing to depart below
his Guidelines sentencing range. Concluding that we lack

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jurisdiction to review the departure claim, we dismiss Willis’s
appeal of that issue. Finding no reversible error after reviewing
his remaining claims, we affirm the Commission’s determination.
I.
FACTS AND PROCEEDINGS
Willis was arrested in June 1994 by officers of the Mexican
Federal Judicial Police after heroin was discovered on his person
and in his luggage at the airport in Mexico City. According to
Willis, an ex-Marine, his journey to Mexico began in Chicago, where
he provided security for various nightclubs. Willis was initially
approached at one of the clubs by someone known as “Mr. Colin” who
purported to recruit Willis to work as a bodyguard for musical
groups in Thailand. Willis accepted the offer, obtained a
passport, received plane tickets (along with $3000 in cash), and
flew to Thailand.
When Willis arrived in Thailand, individuals known to him only
as “Michael” and “Tony” met him at the airport and checked him into
a hotel. Several days later, Michael and Tony arranged for Willis
to fly to Phuket for a “meeting” about the bodyguard assignment.
Shortly after Willis arrived in Phuket, however, all pretense was
dropped and he was told to transport a package to Guatemala or else
“figure out how you’re getting home, if you get home.” Willis
suspected that he was being asked to carry drugs, but nevertheless
agreed to do as he was told.
Willis was to fly from Bangkok to Guatemala by way of

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Amsterdam; he was to be paid $500 on arrival in Guatemala and
$10,000 on his return to Bangkok. The flight from Amsterdam to
Guatemala stopped in Mexico City, where Willis deplaned and his
“nervous” appearance caught the attention of the Mexican police.
When Willis was approached by the police and asked to accompany
them to their office so that his luggage could be searched, Willis
volunteered that he was carrying drugs of an unknown kind that were
hidden in a false compartment in his luggage and in specially made
underpants that he was wearing. A search of the luggage and
underpants led to the discovery of 6.877 kilograms of heroin.
During Willis’s interrogation, the Mexican police struck him
several times in the back with the butt of an M-16 rifle.
Willis was arrested and charged with introduction and
transportation of heroin into Mexico. Although he initially
admitted his possession of illegal drugs to the Mexican
authorities, Willis subsequently argued at trial on the advice of
his Mexican counsel that the substance he was carrying was not
heroin and that the Mexican police did not find any illegal
substance in his possession when they searched him at the airport.
The Mexican court credited Willis’s original inculpatory statement,
convicted him of the charge, and sentenced him to ten years’
imprisonment.
Willis served more than five years of his sentence in a
Mexican prison. During his incarceration in Mexico, Willis was
subjected to what the Commission itself describes as a “severe

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2Willis’s mother estimates that over the course of her son’s
five-year imprisonment in Mexico, each month she paid $300 to $600
requested by the prison director to “protect” her son’s life, in
addition to paying thousands of dollars in “cell rental” and
“renovation” costs.
3See Treaty on Execution of Penal Sentences, Nov. 25, 1976,
U.S.-Mex., 28 U.S.T. 7399, T.I.A.S. No. 8718.
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abuse situation,” including denial of food and medical treatment,
constant demands by the prison authorities for payment to “protect”
him from threats against his life by other prisoners,2 and an
internationally reported 28-hour prison riot by inmates on
Christmas Eve 1998, during which Willis was held at gunpoint by
inmates attempting to escape from the prison.
After serving more than one-half of his ten-year sentence in
Mexico, Willis was finally transferred to the United States
pursuant to a prisoner transfer treaty.3 Following Willis’s
transfer, the Commission concluded, pursuant to 18 U.S.C. § 4106A,
that Willis should serve the full term of his ten-year sentence.
More specifically, the Commission determined that a 121-to-151-
month sentencing range was appropriate, and ordered a release date
after 120 months, to be followed by a 60-month period of supervised
release. Willis timely appeals the Commission’s release-date
determination.
II.
ANALYSIS
A. Standard of Review
We decide an appeal of a release-date determination by the

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418 U.S.C. § 4106A(b)(2)(B).
5United States v. Valencia-Gonzales, 172 F.3d 344, 346 (5th
Cir. 1999).
6Although Willis raises several issues on appeal, we are
convinced after a thorough review of the law and the record that
only this one has enough merit to warrant discussion.
718 U.S.C. § 3553(b).
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Commission as though the determination had been a sentence imposed
by a United States district court.4 Accordingly, we have no
jurisdiction to review a refusal to depart below the Guidelines’
sentencing range unless the Commission based its decision not to
depart on an erroneous belief that it lacked the authority to do
so.5
B. Refusal to Depart for Severe Abuse or Torture
Willis contends that the Commission erroneously believed that
it lacked the authority to depart downward from the Guidelines on
the basis of the “severe abuse” that the Commission itself found
that he suffered while incarcerated in Mexico.6 More specifically,
Willis argues that the Commission denied his request for a downward
departure under the mistaken belief that only a finding of
“torture” or its equivalent would permit departure. We must
disagree.
The Sentencing Guidelines permit departure if mitigating or
aggravating circumstances have not been adequately taken into
consideration by the Guidelines themselves.7 Congress has
explicitly identified the “harsh treatment” meted out in foreign

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8See 134 Cong. Rec. 33,302 (Oct. 21, 1988).
9U.S. Parole Commission, Rules and Procedures Manual, Appendix
9, chapter 5, part k, at 340-41 (1996) (emphasis added).
10Id. at 340.
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prisons as one such circumstance:
Because the conditions in foreign prisons and the
treatment of persons arrested by foreign authorities may
vary considerably from the conditions in federal prisons
and the treatment of persons arrested in this country, it
can be expected that the Parole Commission will have to
decide what impact harsh treatment in another country
should have upon the Parole Commission's determinations
on imprisonment and supervised release. If, for example,
the Parole Commission finds that the prisoner was abused
when interrogated, the Parole Commission could use that
fact to justify a period of imprisonment at the bottom of
the [G]uideline range. If the Parole Commission finds
that a prisoner who transfers to the United States had
been tortured in the sentencing country, from which the
prisoner transfers, then that finding could be a basis
for the Parole Commission to depart below the applicable
[G]uideline range.8
The Commission’s own Rules and Procedures Manual elaborates that
“[a] downward departure may be warranted in the case of torture .
. . or other severe abuse (including inhumane prison conditions[,]”
and explains that “cases of severe abuse (especially where
permanent physical or psychological injury is inflicted) may
warrant a decision below the [G]uidelines just as in the case of
torture.”9 The Rules and Procedures Manual distinguish “torture”
and “severe abuse” on the basis of whether the infliction is
“officially instigated,” and not on the basis of the magnitude or
incidence of the pain and suffering.10
In the instant case, the Commission considered a downward

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11For example, the examiner’s statement that Willis’s
“conditions during the course of his confinement . . . meet the
level of severe abuse rather than torture” may be read to suggest
that a finding of “severe abuse” is insufficient to justify a
downward departure.
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departure, but declined to grant one. The transcript of the
colloquy between counsel for Willis and the hearing examiner
produces substantial ambiguity on the question and is thus
insufficient to answer definitively whether the examiner understood
that he could depart from the Guidelines on the basis of “severe
abuse” as well as torture.11 Any misunderstanding on the part of
the examiner, however, is irrelevant because in reviewing the
examiner’s determination, the Commission’s Legal Office expressly
noted that “cases of ‘severe abuse’ may warrant a decision below
the [G]uidelines, as in the case of torture.”
It is thus apparent to us that the Commission believed ——
correctly —— that both “torture” and “severe abuse” permit, but do
not require, a departure from the Guidelines. Accordingly, the
Commission’s discretionary decision to decline Willis’s request for
a downward departure is unreviewable. When the Commission
understands that it has the authority to depart from the
Guidelines, but determines that the case at hand does not warrant
departure, we may not “second guess” or otherwise question the
Commission’s decision, even if we might have chosen differently had
the initial decision been ours to make.
III

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CONCLUSION
For the reasons explained above, Willis’s appeal of the
Commission’s refusal to grant his request for a downward departure
from the Guidelines is DISMISSED for lack of jurisdiction and the
Commission’s determination is AFFIRMED in all other respects.

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