(caption unavailable)

*Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the court has determined that this opinion
should not be published.
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 94-10615
Summary Calendar
HILARY CLEASTER PRUITT, Petitioner-Appellant,
versus
GEORGE E. KILLINGER, Warden,
FCI, Fort Worth, Respondent-Appellee.
Appeal from the United States District Court
For the Northern District of Texas
(4:93-CV-788-Y)
(February 14 1995)
Before POLITZ, Chief Judge, JOLLY and BENAVIDES, Circuit Judges.
PER CURIAM:*
Hilary Cleaster Pruitt appeals the rejection of his habeas
challenge to the Parole Commission's denial of a parole date within
the parole guideline range. We affirm.
Background
In 1991 Pruitt pleaded guilty to the charge of robbery of a

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1The court's AO-235 report identified four aggravating factors
on which the court based its recommendation: (1) the robbery
involved substantial planning and premeditation including the
recruitment of insider cooperation, (2) the offense involved the
use of firearms, (3) the theft amounted to $472,290.34, none of
which has been recovered and all of which was purportedly going to
be used to purchase narcotics, and (4) the defendant was a fugitive
for over nine years during which time the government's case was
compromised.
2The Commission's report read:
Your offense behavior has been rated as Category six
severity because it involved armed bank robbery during
which victims were forcibly detained by being bound.
2
Customs Warehouse. After imposing two concurrent sentences of nine
years imprisonment the district court recommended to the Parole
Commission that Pruitt be released at a time beyond that calculated
under the parole guidelines.1
In its initial consideration of Pruitt's file the Commission
assigned a severity rating of six and a salient factor of nine,
resulting in a parole guideline range of 40-52 months. In setting
the severity level at six, the Commission relied on the forcible
detention of law enforcement officers during the robbery.2 The
Commission then ordered Pruitt to serve a period beyond the
guideline range because:
[He was] a principal planner in a sophisticated robbery
of a U.S. Customs Warehouse involving the overpowering of
protected law enforcement officers at gun point who were
taped, bound, and forced to lay face down on the floor.
Further, . . . [he was] a fugitive for an extended
period, nearly nine years, before . . . [his] arrest.
The National Appeals Board affirmed the Parole Commission.
The instant habeas action asserts that the Commission's
decision to keep Pruitt in prison beyond the guideline range was

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3The magistrate judge erroneously viewed the factors listed by
the sentencing judge as the factors considered by the Commission,
a situation exacerbated by the mislabeling of an attachment to
Pruitt's petition. This leads to no reversible error; we affirm on
the basis of two sufficient aggravating factors found in the
sentencing judge's recommendation and in the Commission's departure
litany.
4Maddox v. U.S. Parole Comm'n, 821 F.2d 997 (5th Cir. 1987).
5Id.
6Id. at 1001.
3
based on factors considered in the computation of the severity
level and was, therefore, impermissible "double counting." The
district court denied Pruitt's request for habeas relief and Pruitt
timely appealed.3
Analysis
We begin our analysis by noting that the Commission may depart
from the guideline range for good cause, provided that it gives the
prisoner written notice of the aggravating factors upon which it
based its decision.4 In reviewing the Commission's finding of good
cause, we need only find some supporting evidence.5 The Commission
abuses the great discretion it is accorded if it uses "aggravating
factors to continue a prisoner beyond the guidelines when such
factors were used initially to place the prisoner in a particular
severity category. This amounts to impermissible double-
counting."6
Pruitt contends that the Commission double counted his use of
force in detaining law enforcement officials during the commission
of the robbery, first considering this factor when it set the
severity level of his offense and then again when ordering him

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7Id. ("[I]f the Parole Commission failed to take note of a
particular element of the conviction in determining a severity
category, it would not abuse its discretion by considering that
element as an aggravating factor.").
8Romano v. Baer, 805 F.2d 268, 271 (7th Cir. 1986) (holding
that despite question of double counting on certain aggravating
factors, Commission's decision to continue sentence beyond
guidelines range is proper because "remaining aggravating factors
would be sufficient to sustain the . . . action.").
4
confined for a period beyond that calculated under the guidelines.
While the record supports the contention that the Commission
considered Pruitt's use of force in setting his severity level and
in justifying its departure from the guidelines range, the record
also reflects that the Commission articulated two other specific
and independent reasons for ordering confinement beyond the
guidelines: (1) Pruitt's fugitive status, and (2) his role in
planning the sophisticated robbery of the Customs Warehouse.
The Commission did not consider either of these factors in
setting Pruitt's offense severity level; it therefore acted within
its discretion in considering them as aggravating factors when
deciding to depart from the guidelines confinement range.7 That
the Commission also considered Pruitt's use of force is not
dispositive; Pruitt's role in planning the sophisticated robbery of
the Customs Warehouse and his status as a fugitive for an extended
period of time are independent aggravating factors sufficient to
sustain the Commission's action.8
Pruitt insists that the reasons given by the Commission must
be read collectively. The Commission articulates three separate
reasons for its action. We perceive neither a factual nor an

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5
analytical basis to deem them interdependent.
AFFIRMED.

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