William J. Walker v. United States, 816 F.2d 1313 (9th Cir. 1987). · Go Syfert
William J. Walker v. United States, 816 F.2d 1313 (9th Cir. 1987). Cases Citing This Book View Copy Cite
103 citation events (7 in the last 25 years) across 7 distinct courts.
Strongest positive: Harvey Johnson v. Joseph Norwood (ca9, 2010-08-02)
Treatment trajectory · 1988 → 2026 · click a year to view as-of
1988 2007 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
discussed Cited as authority (rule) Harvey Johnson v. Joseph Norwood
9th Cir. · 2010 · confidence medium
The Commission’s decision to continue Johnson to his expiration date was not “arbitrary, irrational, unreasonable, irrelevant, or capricious.” Walker v. United States, 816 F.2d 1313, 1316 (9th Cir.1987).
cited Cited as authority (rule) Rutkowski v. Reilly
D. Or. · 2008 · confidence medium
Walker v. United States, 816 F.2d 1313, 1316 (9th Cir.1987); Wallace v. Christensen, 802 F.2d 1539, 1551-52 (9th Cir.1986) (en banc).
discussed Cited as authority (rule) Harrison v. U.S. Parole Commission
9th Cir. · 2003 · confidence medium
We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a), and we affirm. 1 The Parole Commission’s decision to depart from the rescission guidelines based on Harrison’s “history of assaultive behavior” was supported by good cause. 2 See Walker v. United States, 816 F.2d 1313, 1316 (9th Cir.1987) (per curiam) (stating that, if the Commission issues a decision outside the guidelines, “a court may consider whether the Commission failed to show ‘good cause’ for doing so, but may only inquire whether that showing was arbitrary, irrational, unreasonable, irrelevant, or capricio…
cited Cited as authority (rule) Fassler v. Pendleton
9th Cir. · 2002 · confidence medium
Walker v. United States, 816 F.2d 1313, 1317 (9th Cir.1987) (citations omitted).
discussed Cited as authority (rule) Pinkerton v. Benov
9th Cir. · 2001 · confidence medium
If ‘the Commission’s decision involves the exercise of judgment among a range of possible choices or options,’ it is unreviewable.” Walker v. United States, 816 F.2d 1313, 1316 (9th Cir.1987) (citing Wallace v. Christensen, 802 F.2d 1539, 1551 (9th Cir.1986) (en banc)).
discussed Cited as authority (rule) Roybal v. Seifert (2×)
C.D. Cal. · 2000 · confidence medium
G-H; at the time petitioner filed the pending habeas petition, petitioner was in federal custody. 2 Pursuant to Fed.R.Evid. 201, the Court takes judicial notice that on November 20, 2000, petitioner filed a change of address in which he lists a street address, rather than an institutional address. 3 DISCUSSION I The Commission has broad discretion in setting parole, 4 and “[t]he scope *1191 of judicial review of the Commission’s parole decisions] ... is exceedingly narrow.” Walker v. United States, 816 F.2d 1313, 1316 (9th Cir.1987); Marquez-Perez v. Rardin, 221 F.3d 1139, 1141 (9th Cir.…
discussed Cited as authority (rule) James D. Harper, Jr. v. Joseph Crabtree, Warden, Fci Sheridan United States Parole Commission
9th Cir. · 1997 · confidence medium
Review of Parole Decision 3 Harper contends the Parole Commission's decision was erroneous because: (1) it failed to provide "good cause" for its decision; (2) it failed to provide him an adequate opportunity to respond; and (3) it engaged in impermissible "double counting." These contentions lack merit. 4 "The scope of judicial review of the Commission's parole decision is ... "exceedingly narrow." Walker v. United States, 816 F.2d 1313, 1316 (9th Cir.1987) (per curiam).
discussed Cited as authority (rule) William Roger Reaves v. United States Parole Commission, and P.W. Keohane, Warden (2×) also: Cited "see, e.g."
9th Cir. · 1997 · confidence medium
Walker v. United States, 816 F.2d 1313, 1316 (9th Cir.1987).
discussed Cited as authority (rule) United States v. Richard Alvarez
9th Cir. · 1996 · confidence medium
Walker v. United States, 816 F.2d 1313, 1316 (9th Cir.1987). "[F]indings of fact made by the district court relevant to the denial of [ ] habeas corpus petitions are reviewed for clear error." Bonin v. Calderon, 59 F.3d 815, 823 (9th Cir.1995) (internal cite omitted), cert. denied, 116 S.Ct. 718 (1996).
cited Cited as authority (rule) Mark Aston McAdoo v. United States Parole Commission Wayne H. Seifert, Warden, Metropolitan Detention Center, Los Angeles
9th Cir. · 1996 · confidence medium
Walker v. United States, 816 F.2d 1313, 1316 (9th Cir.1987).
discussed Cited as authority (rule) Jimmie Gomer v. U.S. Parole Commission C.E. Floyd (2×) also: Cited "see"
9th Cir. · 1995 · confidence medium
Walker v. United States, 816 F.2d 1313, 1316 (9th Cir.1987) (per curiam); Wallace v. Christensen, 802 F.2d 1539, 1551 (9th Cir.1986) (en banc). 4 The Parole Commission established Gomer's parole guideline range based on the facts that he committed four bank robberies during his escape and locked the victims in a vault in one of the robberies.
cited Cited as authority (rule) United States v. Friedland
D.N.J. · 1995 · confidence medium
Walker v. United States, 816 F.2d 1313, 1316 (9th Cir.1987); Wiggins v. Nelson, 510 F.Supp. 666, 668 (D.Conn.1981).
cited Cited as authority (rule) Michael Clayton v. United States Parole Commission
9th Cir. · 1994 · confidence medium
Walker v. United States, 816 F.2d 1313, 1316 (9th Cir.1987).
discussed Cited as authority (rule) Jerry President v. United States Parole Commission (2×) also: Cited "see, e.g."
9th Cir. · 1994 · signal: cf. · confidence medium
Cf. Walker, 816 F.2d at 1317 (preponderance of evidence standard applies to evidence as a whole; Commission did not act beyond its discretion by considering a presentence investigation report); Miller, 514 F.2d at 42 (state probation report, among other evidence, was sufficient to establish probation violation). 2 17 AFFIRMED. * The panel unanimously finds this case suitable for decision without oral argument.
examined Cited as authority (rule) Hipolito Rivera-Ramirez v. United States Parole Board (3×) also: Cited "see"
9th Cir. · 1994 · confidence medium
Walker v. United States, 816 F.2d 1313, 1317 (9th Cir.1987).
cited Cited as authority (rule) Sam Merit v. United States Parole Commission
9th Cir. · 1994 · confidence medium
Walker v. United States, 816 F.2d 1313, 1316 (9th Cir.1987) (per curiam).
discussed Cited as authority (rule) William J. Noll v. Joel Knowles, Warden
9th Cir. · 1994 · confidence medium
"The scope of judicial review of the Commission's parole decision ... is exceedingly narrow." Walker v. United States, 816 F.2d 1313, 1316 (9th Cir.1987) (per curiam). "[R]eview is narrowly limited to acts outside the Commission's statutory authority, decisions rendered outside its guidelines without a showing of good cause, and constitutional violations." Feldman v. Perrill, 902 F.2d 1445, 1449 (9th Cir.1990).
examined Cited as authority (rule) Louis Ippolito v. Larry F. Taylor, Warden (4×) also: Cited "see", Cited "see, e.g."
9th Cir. · 1994 · confidence medium
Sec. 1291 . 1 We affirm. 3 "Judgments involving a broad range of factors that the Commission takes into account in arriving at its decision are committed to the Commission's discretion and are unreviewable even for abuse of discretion." Walker v. United States Parole Comm'n, 816 F.2d 1313, 1316 (9th Cir.1987) (per curiam); Wallace v. Christensen, 802 F.2d 1539, 1551 (9th Cir.1986) (en banc).
cited Cited as authority (rule) Alvaro Echavarria-Olarte v. Janet Reno , Attorney General for the United States of America
9th Cir. · 1993 · confidence medium
Walker v. United States, 816 F.2d 1313, 1316 (9th Cir.1987).
examined Cited as authority (rule) United States v. Frank P. Guerrero (3×) also: Cited "see", Cited "see, e.g."
9th Cir. · 1993 · confidence medium
We affirm. 4 "Judgments involving a broad range of factors that the Commission takes into account in arriving at its decision are committed to the Commission's discretion and are unreviewable even for abuse of discretion." Walker v. United States Parole Comm'n, 816 F.2d 1313, 1316 (9th Cir.1987) (per curiam); Wallace v. Christensen, 802 F.2d 1539, 1551 (9th Cir.1986) (en banc).
discussed Cited as authority (rule) Jorge F. Martinez v. United States Parole Commission (2×) also: Cited "see"
9th Cir. · 1993 · confidence medium
Walker v. United States, 816 F.2d 1313, 1316 (9th Cir.1987).
cited Cited as authority (rule) John Oscar Brothers v. United States Parole Commission Mark Henry
9th Cir. · 1993 · confidence medium
Walker v. United States, 816 F.2d 1313, 1316 (9th Cir.1987) (per curiam).
cited Cited as authority (rule) Richard Harris v. J.L. Sivley, Warden
9th Cir. · 1993 · confidence medium
Walker v. United States, 816 F.2d 1313, 1316 (9th Cir.1987).
cited Cited as authority (rule) United States v. Martin Allen Johnson
9th Cir. · 1993 · confidence medium
Walker v. United States, 816 F.2d 1313, 1316 (9th Cir.1987).
cited Cited as authority (rule) Gaspar Camacho-Sanchez v. U.S. Parole Commission
9th Cir. · 1993 · confidence medium
Walker v. United States, 816 F.2d 1313, 1316 (9th Cir.1987) (per curiam).
discussed Cited as authority (rule) Charles R. Wilcox v. U.S. Parole Commission Larry F. Taylor, Warden (2×) also: Cited "see"
9th Cir. · 1992 · confidence medium
See 18 U.S.C. § 4207 (3); 28 C.F.R. § 2.19 (a)(3); Walker v. United States, 816 F.2d 1313, 1317 (9th Cir.1987) (per curiam).
cited Cited as authority (rule) Edward G. Petersen v. United States Attorney General Attorney General for the State of California Commissioner, United States Parole Commission Director, Federal Bureau of Prisons
9th Cir. · 1992 · confidence medium
"The scope of judicial review of the Commission's parole decision ... is exceedingly narrow." Walker v. United States, 816 F.2d 1313, 1316 (9th Cir.1987).
discussed Cited as authority (rule) David John Miller v. Larry F. Taylor, Warden (2×) also: Cited "see"
9th Cir. · 1992 · confidence medium
Walker v. United States, 816 F.2d 1313, 1316 (9th Cir.1987).
cited Cited as authority (rule) John P. Flanagan v. Walter Wells, Warden
9th Cir. · 1992 · confidence medium
Walker v. United States, 816 F.2d 1313, 1316 (9th Cir.1987).
discussed Cited as authority (rule) Mildred Miller v. United States Parole Commission (2×) also: Cited "see"
9th Cir. · 1992 · confidence medium
Walker v. United States, 816 F.2d 1313, 1317 (9th Cir.1987). 6 Miller's challenge to the parole determination fails because the Commission acted within its statutory authority by considering the information provided by the AUSA in setting Miller's parole date.
discussed Cited as authority (rule) Clifton Dwayne Thomas v. Richard Rison, Warden
9th Cir. · 1992 · confidence medium
It may consider information contained in a presentence report, Walker v. United States, 816 F.2d 1313, 1317 (9th Cir.1987), as well as dismissed counts of an indictment, Maddox v. United States Parole Comm'n, 821 F.2d 997, 999 (5th Cir.1987). 10 Here, the Parole Commission considered the dismissed robbery counts on the basis of information in the presentence report, which indicated that Thomas was involved in seven separate bank robberies in the Tacoma area, all with similar modes of operation.
discussed Cited as authority (rule) Jaime Alonzo Araujo-Avila, AKA Jaime Alonzo Avila v. Richard H. Rison, Warden (2×) also: Cited "see"
9th Cir. · 1991 · confidence medium
Walker v. United States, 816 F.2d 1313, 1317 (9th Cir.1987). 4 Here, based on the information contained in the presentence report, the USPC found that Araujo-Avila was a Category Eight offender and therefore had a parole guideline range of "100+" months. 5 Araujo-Avila's challenge to the parole denial fails because the USPC acted within its statutory authority by relying on the information in the presentence report.
discussed Cited as authority (rule) Yeatts v. Taylor (2×) also: Cited "see"
9th Cir. · 1991 · confidence medium
Walker v. United States, 816 F.2d 1313, 1317 (9th Cir.1987).
discussed Cited as authority (rule) Miles v. Rison (2×)
9th Cir. · 1991 · confidence medium
Walker v. United States, 816 F.2d 1313, 1316 (9th Cir.1987).
cited Cited as authority (rule) Murphy v. U.S. Parole Commission
D. Kan. · 1990 · confidence medium
Walker v. U.S., 816 F.2d 1313, 1316 (9th Cir.1987). 1.
discussed Cited as authority (rule) United States v. Richard Benedict, United States of America v. Richard Benedict (2×)
9th Cir. · 1989 · confidence medium
Benedict also claims that as a consequence the Commission has denied him due process within the meaning of the Fifth Amendment. 8 * Although "the scope of judicial review of the Commission's parole decision ... is exceedingly narrow," Walker v. United States, 816 F.2d 1313, 1316 (9th Cir.1987) (per curiam), Benedict's claims appear to be reviewable.
cited Cited as authority (rule) Ramee Jamal Shah, Aka: Eddie Harris, Jr. v. United States
9th Cir. · 1989 · confidence medium
Walker v. United States, 816 F.2d 1313, 1316 (9th Cir.1987).
discussed Cited as authority (rule) Frederick S. Solheim v. Sandra B. Armstrong, Western Regional Commissioner, United States Parole Commission Robert Christensen
9th Cir. · 1988 · confidence medium
In reviewing the Commission’s decision, we may examine only whether it is “arbitrary, irrational, unreasonable, irrelevant, or capricious.” Walker v. United States, 816 F.2d 1313, 1316 (9th Cir.1987).
cited Cited as authority (rule) Armando John Vargas v. United States Parole Commission
9th Cir. · 1988 · confidence medium
Walker v. United States, 816 F.2d 1313, 1317 (9th Cir.1987); Bowen, 805 F.2d at 888 ; Jones v. United States, 783 F.2d 1477, 1482-83 (9th Cir.1986).
cited Cited as authority (rule) United States v. Ruben W. Espinoza
9th Cir. · 1988 · confidence medium
Walker v. United States, 816 F.2d 1313, 1316 (9th Cir.1987).
cited Cited as authority (rule) United States v. Espinoza
9th Cir. · 1988 · confidence medium
Walker v. United States, 816 F.2d 1313, 1316 (9th Cir.1987).
discussed Cited "see" Daniel Mellinger v. Unknown Graber (2×)
9th Cir. · 2017 · signal: see · confidence high
See Walker v. United States, 816 F.2d 1313, 1316 (9th Cir. 1987).
cited Cited "see" United States v. Gerald Wayne Hannah
9th Cir. · 1998 · signal: see · confidence high
See Walker v. United States, 816 F.2d 1313 (9th Cir.1987).
cited Cited "see" Stephen Charles Forde v. U.S. Parole Commission
9th Cir. · 1997 · signal: see · confidence high
See Walker v. United States, 816 F.2d 1313, 1316 (9th Cir.1987) (per curiam).
cited Cited "see" Istvan Kele v. United States Parole Commission
9th Cir. · 1997 · signal: see · confidence high
See Walker v. United States, 816 F.2d 1313, 1316 (9th Cir.1987) (per curiam).
cited Cited "see" Hall v. Henderson
D.C. · 1996 · signal: see · confidence high
See Walker v. United States, 816 F.2d 1313, 1316 (9th Cir.1987) (reviewing parole commission’s decision for double counting); Romano v. Baer, 805 F.2d 268, 271 (7th Cir.1986) (same).
discussed Cited "see" Dean Frederick Vereen v. John Sullivan, Warden (2×)
9th Cir. · 1995 · signal: see · confidence high
See Walker v. United States, 816 F.2d 1313, 1317 (9th Cir.1987) (per curiam) (Commission may consider presentence report); Bowen v. United States Parole Comm'n, 805 F.2d 885, 888 (9th Cir.1986) (Commission may consider state court charges and convictions). 8 Second, the Commission's use of the 1986 parole guidelines did not violate the Ex Post Facto Clause.
discussed Cited "see" Benito Hernandez-Osorio v. Joseph H. Crabtree, Warden, Fci Sheridan Carol Getty, Commissioner, United States Parole Commission
9th Cir. · 1994 · signal: accord · confidence high
"Credibility of evidence is just the sort of judgment that is absolutely committed to the discretion of the Parole Commission." Id. at 1179 ; accord Walker v. United States, 816 F.2d 1313, 1317 (9th Cir.1987).
cited Cited "see" United States v. Anthony Dwayne Anderson
9th Cir. · 1993 · signal: see · confidence high
See Walker v. United States, 816 F.2d 1313, 1315 (9th Cir.1987) (per curiam); 28 C.F.R. § 2.20 .
discussed Cited "see" Randy T. Edmundson v. C.A. Turner, Warden, United States Medical Center for Federal Prisoners, Springfield, Missouri U.S. Parole Commission (2×)
8th Cir. · 1992 · signal: see · confidence high
See Walker v. United States, 816 F.2d 1313, 1316 (9th Cir.1987); Castaldo v. U.S. Parole Comm’n, 725 F.2d 94, 96 (10th Cir.1984); Stroud v. U.S. Parole Comm’n, 668 F.2d 843, 847 (5th Cir.1982). 3.
Retrieving the full opinion text from the archive…
William J. WALKER, Petitioner-Appellant,
v.
UNITED STATES of America, Respondent-Appellee
86-2337.
Court of Appeals for the Ninth Circuit.
May 5, 1987.
816 F.2d 1313
William Walker, pro se., Adam H. Kurland, Fresno, Cal., for respondent-appellee.
Hug, Nelson, Noonan, Per Curiam.
Cited by 55 opinions  |  Published
PER CURIAM:

Walker, an inmate at the federal penitentiary at Lompoc, California, appeals pro se from the district court’s denial of his 28 U.S.C. § 2255 petition. Walker’s suit challenged a decision of the United States Parole Commission (“the Commission”) setting a presumptive parole date. The panel unanimously votes to have the case submitted without oral argument. We affirm.

I. BACKGROUND

Walker pleaded guilty to one count of bank robbery under 18 U.S.C. § 2113(a) (1982). A second count of armed bank robbery was dismissed. On September 26, 1983, the district court sentenced Walker to a twenty-year term subject to 18 U.S.C. § 4205(b)(2) (1982), which provides that “the prisoner may be released on parole at such time as the Commission may determine.”

The Commission’s parole guidelines set forth presumptive parole ranges based on two variables. 28 C.F.R. § 2.20 (1985). The first variable is the “severity of the offense behavior,” which on a scale of 1 (low severity) to 8 (high severity) ranks the offense for which the prisoner was convicted. The second variable, the salient factor score, predicts the risk of parole violation on a scale of 0 (high risk) to 10 (low risk). The salient factor score is based on six elements: (1) the number of prior convictions other than the current offense, (2) the number of prior commitments of more than thirty days, (3) the prisoner’s age at the time of the current offense or whether the prisoner has five or more prior commitments, (4) whether the prisoner was last released less than three years prior to the current offense, (5) whether the prisoner was on probation or parole at the time of the current offense, and (6) whethér the prisoner has any record of heroin or opiate dependence. Based on these two variables, the guidelines indicate presumptive parole dates for cases with “good institutional adjustment and program progress.” Id. § 2.20(b).

The regulations further state: “These time ranges are merely guidelines. Where the circumstances warrant, decisions outside of the guidelines (either above or below) may be rendered.” Id. § 2.20(c). The governing statute similarly provides: “The Commission may grant or deny release on parole notwithstanding the guidelines ... if it determines there is good cause for so doing: Provided, That the prisoner is furnished written notice stating with particularity the reasons for its determination. ...” 18 U.S.C. § 4206(c) (1982).

At Walker’s initial parole hearing on July 10, 1985, his offense behavior rating of 5 and his salient factor score of 0 indicated a presumptive parole range of 60 to 72 months. The Commission, however, determined that Walker should receive a presumptive parole date of 120 months. The Commission explained:

After review of all relevant factors and information presented, a decision above the guidelines appears warranted because you are a more serious risk than indicated by your salient factor score in that you have a 15-year history of drug use that is related to your criminal behavior which includes a previous bank robbery conviction (1978) in which a gang of organized bank robbers were involved in five separate robberies and a gun was used in four of them, and you have a pending armed robbery charge. In addition, your performance after being released on bond on the instant offense was considered poor and as a result a warrant had to be issued for your arrest. Further, your offense involved the following aggravating factors: during one of the robberies, a weapon was held on the tellers; and during both robberies,[*1316] you wore a ski mask and jumped over the counters to retrieve the money.

Having properly exhausted his administrative remedies, see Ruviwat v. Smith, 701 F.2d 844, 845 (9th Cir.1983) (per curiam), Walker filed this § 2255 habeas action in district court.

II. DISCUSSION

This court reviews the denial of a § 2255 petition de novo. United States v. Quan, 789 F.2d 711, 713 (9th Cir.1986). The scope of judicial review of the Commission’s parole decision, however, is exceedingly narrow. Judgments involving a broad range of factors that the Commission takes into account in arriving at its decision are committed to the Commission’s discretion and are unreviewable even for abuse of discretion. Wallace v. Christensen, 802 F.2d 1539, 1551 (9th Cir.1986) (en banc). If “the Commission’s decision involves the exercise of judgment among a range of possible choices or options,” it is unreviewable. Id. at 1552. But a decision that “involves a plain violation of a matter which does not admit of discretion and choice” (such as the failure to follow certain statutory requirements) is reviewable. Id. at 1551-52. For instance, if the Commission has rendered a parole decision “notwithstanding” or “above” the guidelines, a court may consider whether the Commission failed to show “good cause” for doing so, but may only inquire whether that showing was arbitrary, irrational, unreasonable, irrelevant, or capricious. Id. at 1551; see Bowen v. U.S. Parole Comm’n, 805 F.2d 885, 888 (9th Cir.1986). Finally, a court may consider constitutional challenges and determine whether the Commission’s action was so arbitrary as to violate due process. Wallace, 802 F.2d at 1552.

Walker first argues that the Commission did not comply with the regulations and violated the due process and equal protection clauses by allegedly using the same information to arrive at the presumptive parole date as to go above it. See, e.g., Lynch v. United States Parole Comm’n, 768 F.2d 491, 496 (2d Cir.1985); Briggs v. United States Parole Comm’n, 736 F.2d 446, 450 (8th Cir.1984). But cf. Torres-Macias v. United States Parole Comm’n, 730 F.2d 1214, 1218 (9th Cir.1984) (stating in dictum that this circuit does not follow the general rule prohibiting reconsideration of offense severity or salient factor score to justify a decision above the guidelines). As in Torres-Macias, we need not decide whether we would adopt the narrow “double-counting” rule followed in other circuits, though we note that failure to do so would completely eviscerate the statutory requirement of “good cause.” See Reynolds v. McCall, 701 F.2d 810, 813-14 (9th Cir.1983) (using circumstances surrounding current offense to justify a decision above the guidelines); O’Brien v. Putnam, 591 F.2d 53, 55-56 (9th Cir.1979) (same). Here, as in Torres-Macias, the arguments of the petitioner are groundless, because the Commission did not use the same information twice. See Torres-Macias, 730 F.2d at 1218.

The Commission did not engage in double-counting when it considered the nature and circumstances of Walker’s prior involvement in a string of gang robberies in which weapons were used, because the first element of the salient factor score rests only on the number of prior convictions, not on their nature or chronology. Stroud v. United States Parole Comm’n, 668 F.2d 843, 846-47 (5th Cir.1982); see Castaldo v. United States Parole Comm’n, 725 F.2d 94, 95-96 (10th Cir.1984) (per curiam); see also Wallace, 802 F.2d at 1551 (noting that the Commission’s interpretation of its guidelines is entitled to deference). Nor did the Commission double-count when it considered Walker’s poor performance while on bail for the current offense as a factor distinct from the severity of the current offense itself. See 28 C.F.R. § 2.20, at 11617(a) (providing for the addition of 6 to 12 months for failure to appear for criminal proceedings).

In addition, Walker’s argument that the offense behavior rating for the current offense necessarily subsumes any “aggravating circumstances” of that offense is incorrect. The regulations state that “aggravating circumstances in a particular[*1317] case may justify a decision or a severity rating different from that listed.” Id. § 2.20(d) (emphasis added); see Torres-Macias, 730 F.2d at 1217-18; O’Brien, 591 F.2d at 55-56; Solomon v. Elsea, 676 F.2d 282, 286-87 (2d Cir.1982) (per curiam). Thus, as § 2.20(d) indicates, aggravating circumstances may be used either to justify a decision above the presumptive parole range for an offense severity rating of 5 or to increase an offense severity rating from 5 to 6. Compare O’Brien, 591 F.2d at 55-56 (using aggravating circumstances of current offense to justify a decision above the guidelines), with Grattan v. Sigler, 525 F.2d 329, 331 (9th Cir.1975) (per curiam) (using aggravating circumstances of current offense to raise the offense behavior rating). Both paths can achieve the same result.

Therefore, Walker’s argument that the Commission used the same information twice lacks a factual basis. Accordingly, Walker’s arguments based on double-counting fail. Any challenge to the merits of the Commission’s decision also falls short. Based on the reasons given, the determination that “good cause” existed to go above the guidelines was not arbitrary or irrational. See Wallace, 802 F.2d at 1551. This court lacks jurisdiction to scrutinize the decision any more closely. See Roberts v. Corrothers, 812 F.2d 1173, 1179-81 (9th Cir.1987); Wallace, 802 F.2d at 1552.

Second, Walker argues that the Commission failed to consider his record of good institutional adjustment, which he argues entitles him to an early parole date under 18 U.S.C. § 4205(b)(2). A sentence under § 4205(b)(2) does not require that a prisoner be scheduled for any particular parole date, even assuming good institutional behavior. United States v. Wickham, 618 F.2d 1307, 1312 (9th Cir.1980); Izsak v. Sigler, 604 F.2d 1205, 1207 (9th Cir.1979). Parole determinations for prisoners sentenced under § 4205(b)(2) are governed by the parole guidelines. See id. Although good institutional behavior is a factor, its existence does not necessarily outweigh adverse factors. Id. A court cannot infer from an adverse parole decision that the Commission did not consider Walker’s institutional behavior. Nunez-Guardado v. Hadden, 722 F.2d 618, 624 (10th Cir.1983); see Petrone v. Kaslow, 603 F.2d 779, 780 (9th Cir.1979) (per curiam).

Indeed, the record indicates that Walker’s behavior was considered. At the. initial parole hearing, the examiners are required to discuss with the prisoner his institutional conduct. See 28 C.F.R. § 2.13(a). The record indicates that this information was before the Commission, and the Commission’s Notice of Action indicates that it was considered. In fact, a satisfactory institutional record is assumed in the Commission’s presumptive parole ranges, see id. § 2.20(b), and is a prerequisite to any grant of parole. See id. §§ 2.6, 2.12(d), 2.18; 18 U.S.C. § 4206(a). However, the weight accorded this factor is within the Commission’s discretion and is therefore unreviewable. Roberts, 812 F.2d at 1176; Wallace, 802 F.2d at 1551; see Allen v. United States Parole Comm’n, 671 F.2d 322, 324 (9th Cir.1982).

Finally, Walker argues that the aggravating factors of the use of a gun and ski masks were not established by a preponderance of the evidence. See 28 C.F.R. § 2.19(c). This standard does not, as Walker implies, apply to each item of information, but instead to the evidence taken as a whole. Roberts, 812 F.2d at 1179. The Commission did not act beyond its discretion by considering the presentence report, which may serve as a basis for its decision. See id.-, Anderson v. United States Parole Comm’n, 793 F.2d 1136, 1137 (9th Cir.1986); 18 U.S.C. § 4207(3); 28 C.F.R. § 2.19(a)(3). This court lacks jurisdiction to review the reliability of the sources of the information in the presentence report. Roberts, 812 F.2d at 1180. The Commission’s determination was within the range of its discretion. Id. at 1181-82. Furthermore, the presentence report need not be based, as Walker suggests, only on evidence that meets the rigorous evidentiary standards required at trial. Jones v. United States, 783 F.2d 1477, 1480 (9th Cir.1986).

[*1318] CONCLUSION

For the reasons given above, the district court’s denial of the § 2255 petition is affirmed.

AFFIRMED.