Paura v. United States Parole Comm'n, 18 F.3d 1188 (5th Cir. 1994). · Go Syfert
Paura v. United States Parole Comm'n, 18 F.3d 1188 (5th Cir. 1994). Cases Citing This Book View Copy Cite
13 citation events (5 in the last 25 years) across 6 distinct courts.
Strongest positive: (PC) Curley v. Clark (caed, 2023-11-20)
Top citers, strongest first. 11 distinct citers. How cited ↗
discussed Cited as authority (rule) (PC) Curley v. Clark
E.D. Cal. · 2023 · confidence medium
“Under this standard, the prison official must not only ‘be 14 aware of the facts from which the inference could be drawn that a substantial risk of serious harm 15 exists,’ but that person ‘must also draw the inference.’” Id. at 1057 (quoting Farmer, 511 U.S. at 16 837). “‘If a prison official should have been aware of the risk, but was not, then the official has 17 not violated the Eighth Amendment, no matter how severe the risk.’” Id. (quoting Gibson, 290 18 F.3d at 1188).
discussed Cited as authority (rule) (PS) Bernhard v. County of San Joaquin
E.D. Cal. · 2022 · confidence medium
The second is discretionary: if good cause is not established, the district court may extend time for service upon a 16 showing of excusable neglect. 17 Crowley v. Bannister, 734 F.3d 967, 976 (9th Cir. 2013) (quoting Lemoge v. United States, 587 18 F.3d 1188, 1198 (9th Cir. 2009)). 19 “[T]he determination of whether neglect is excusable is an equitable one that depends on 20 at least four factors: (1) the danger of prejudice to the opposing party; (2) the length of the delay 21 and its potential impact on the proceedings; (3) the reason for the delay; and (4) whether the 22 movant acted in …
discussed Cited as authority (rule) (PS) El Bey v. County of Sacramento
E.D. Cal. · 2021 · confidence medium
The second is discretionary: if good cause is not established, the district court may extend time for service upon a 16 showing of excusable neglect. 17 Crowley v. Bannister, 734 F.3d 967, 976 (9th Cir. 2013) (quoting Lemoge v. United States, 587 18 F.3d 1188, 1198 (9th Cir. 2009)). 19 Here, plaintiff has shown neither good cause nor excusable neglect. 20 Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed without 21 prejudice pursuant to Rule 4(m). 22 These findings and recommendations are submitted to the United States District Judge 23 assigned to the case, pursuant to the p…
discussed Cited as authority (rule) United States v. Wade E. Menendez, United States of America v. Raymond E. Plaisance, United States of America v. Tony Dung Van Nguyen
5th Cir. · 1995 · confidence medium
In any event, because "[t]he first of conflicting panel decisions is to be followed,” Paura v. U.S. Parole Comm'n, 18 F.3d 1188, 1189 (5th Cir.1994) (citation omitted), the holding of Zink governs over any contrary implications of the Pemberton dicta. 11 .
discussed Cited as authority (rule) UNITED STATES of America v. Wade E. MENENDEZ
unknown court · confidence medium
In any event, because "[t]he first of conflicting panel decisions is to be followed," Paura v. U.S. Parole Comm'n, 18 F.3d 1188, 1189 (5th Cir.1994) (citation omitted), the holding of Zink governs over any contrary implications of the Pemberton dicta. 15 Nguyen argues that the district court erred in granting summary judgment in favor of the United States because the government failed to file the certified administrative record with the district court.
discussed Cited as authority (rule) UNITED STATES of America v. Wade E. MENENDEZ
unknown court · confidence medium
In any event, because "[t]he first of conflicting panel decisions is to be followed," Paura v. U.S. Parole Comm'n, 18 F.3d 1188, 1189 (5th Cir.1994) (citation omitted), the holding of Zink governs over any contrary implications of the Pemberton dicta. 15 Nguyen argues that the district court erred in granting summary judgment in favor of the United States because the government failed to file the certified administrative record with the district court.
discussed Cited as authority (rule) UNITED STATES of America v. Wade E. MENENDEZ
unknown court · confidence medium
In any event, because "[t]he first of conflicting panel decisions is to be followed," Paura v. U.S. Parole Comm'n, 18 F.3d 1188, 1189 (5th Cir.1994) (citation omitted), the holding of Zink governs over any contrary implications of the Pemberton dicta. 15 Nguyen argues that the district court erred in granting summary judgment in favor of the United States because the government failed to file the certified administrative record with the district court.
discussed Cited "see" Odili v. United States Parole Commission
11th Cir. · 2007 · signal: see · confidence high
See Paura v. U.S. Parole Comm’n, 18 F.3d 1188, 1190 (5th Cir.1994) (finding error where Parole Commission decided that it was required to equate periods of imprisonment and supervised release to length of foreign sentence); 28 C.F.R. § 2.68 (3) (recognizing that combined prison and supervised release terms may be less than full term imposed by foreign court).
discussed Cited "see" Landry v. A-Able Bonding, Inc.
E.D. Tex. · 1994 · signal: see · confidence high
See Paura v. United States Parole Comm’n, 18 F.3d 1188, 1190 (5th Cir.1994) (stating “[n]o rule is more firmly settled in our Circuit”); Smith v. Penrod Drilling Corp., 960 F.2d 456 , 459 n. 2 (5th Cir.1992); Pruitt v. Levi Strauss & Co., 932 F.2d 458 (5th Cir.1991).
cited Cited "see" Stephenson v. Reno, 28 F.3d 26 (5th Cir.1994) (per curiam), where, as here, a suit brought pursuant to § 1983 challenges the legality of the
unknown court · signal: see · confidence high
See Paura v. United States Parole Comm’n, 18 F.3d 1188, 1189-90 (5th Cir.1994).
discussed Cited "see, e.g." Otis v. United States Parole Commission
5th Cir. · 2008 · signal: compare · confidence medium
Compare Cannon v. U.S. Dep’t of Justice, U.S. Parole Comm’n, 973 F.2d 1190, 1195-98 (5th Cir.1992) ("[T]he Commission may not authorize a release date which results in the total period of incarceration, plus the period of supervised release, being less than or greater than the total foreign-court-imposed sentence.”) and Welsh v. U.S. Parole Comm’n, 513 F.3d 169, 171 (5th Cir.2008) (citing Cannon as authority in this circuit) with Paura v. U.S. Parole Comm’n, 18 F.3d 1188, 1189 (5th Cir.1994) (declaring statements in Cannon requiring Parole Commission to match foreign sentence dicta).
Retrieving the full opinion text from the archive…
Alfonso PAURA, Efren Renteria, Armando Alberto Salas, Oralia Suarez, Ricardo Espinoza, and Algerdon Olichauskas, Petitioners,
v.
UNITED STATES PAROLE COMMISSION, Respondent
93-04910.
Court of Appeals for the Fifth Circuit.
Mar 30, 1994.
18 F.3d 1188
1994 U.S. App. LEXIS 5923
Henry J. Bemporad, Asst. Federal Public Defender, San Antonio, TX, Lucien B. Campbell, Federal Public Defender, Christine W. Kelso, Asst. Federal Public Defender, El Paso, TX, for petitioners., Richard Preston, Atty., Office of Gen. Counsel, Chevy Chase, MD, for respondent in all cases., Rockne Chickinell, U.S. Parole Com’n, Chevy Chase, MD, for respondent in Case No. 93-4441.
Higginbotham, Wiener, Kaufman.
Cited by 13 opinions  |  Published
PATRICK E. HIGGINBOTHAM, Circuit Judge:

American citizens arrested in Mexico and sentenced for transporting marijuana bring this appeal. Petitioners were sentenced in Mexico and transferred to the United States to serve the remainder of their sentences pursuant to the Prisoner Transfer Treaty between the United States and Mexico. Prisoner Transfer, Nov. 25, 1976, U.S.-Mex., 28 U.S.T. 7299. After the transfers, the United States Parole Commission determined a release date and a period of supervised release for each petitioner based on sentences American law would impose for analogous crimes. 18 U.S.C. § 4106A(b)(l)(A). For each petitioner, the combined period of imprisonment and super[*1189] vised release was less than the length of the prison term imposed by Mexico.

The Parole Commission redetermined petitioners’ release dates and supervised release periods in accordance with this court’s decision in Cannon v. United States Dep’t of Justice, 973 F.2d 1190 (5th Cir.1992) [Cannon II], denying reh’g to 961 F.2d 82 (5th Cir.1992) [Cannon I ], cert. denied, — U.S. -, 113 S.Ct. 2354, 124 L.Ed.2d 262 (1993). The Commission advanced the release dates of the petitioners by fifteen percent to correspond with good time credits under 18 U.S.C. § 3624(b). At the same time, the Commission extended the period of supervised release for each petitioner to comply with Cannon II’s instruction that the combined period of imprisonment and supervised release determined by the Commission must equal the sentence imposed by the Mexican court. We vacate the Parole Commission’s decision to lengthen the supervised release periods of the petitioners.

I.

Petitioners challenge the Commission’s reliance on Cannon II in extending their supervised release periods beyond the periods prescribed for sentences imposed by United States district courts. Each seeks restoration of the period of supervised release initially established by the Commission. The Commission’s recalculation of the petitioners’ release dates and the appropriate treatment of foreign good time credits are not subjects of this appeal.

II.

The Parole Commission’s reliance on Cannon II was unjustified. Statements about supervised release in that case are dicta. The total of the 63 months imprisonment and 27 months supervised release that Cannon received from the Parole Commission eq-ualled the 90 month prison sentence he received in Mexico. Cannon I, 961 F.2d at 84. Cannon II referred to the situation of an American who received a foreign sentence far in excess of the American sentence for a similar offense as a “theoretical horrible” that was not before the court. 973 F.2d at 1127. The treatment of foreign good time credits was the only issue before the Cannon panel and that issue is not before this court. See Cannon I, 961 F.2d at 84.

The Commission, conceding that the language in Cannon II about supervised release is dicta, contends that it is nevertheless persuasive and this panel should follow it. We decline to do so. The dicta is not consistent with earlier decisions by this court. Prior to Cannon II, three Fifth Circuit opinions upheld combined periods of incarceration and supervised release set by the Commission which were shorter than the sentences imposed in Mexico. Thorpe v. United States Parole Comm’n, 902 F.2d 291 (5th Cir.) (per curiam) (total period one month shorter than Mexican sentence), cert. denied, 498 U.S. 868, 111 S.Ct. 185, 112 L.Ed.2d 148 (1990); Malin v. United States Parole Comm’n, No. 89-4761 (5th Cir. April 19, 1990), slip op. at 2 (per curiam) (same); Molano-Garza v. United States Parole Comm’n, 965 F.2d 20 (5th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 1009, 122 L.Ed.2d 158 (1993) (total period nine months shorter than Mexican sentence). Despite these precedents, Cannon II held that the combined period of imprisonment and supervised release must equal the foreign sentence. 973 F.2d at 1195. This statement is not consistent with the earlier cases. Lara v. United States Parole Comm’n, 990 F.2d 839, 840 (5th Cir.1993).

Cannon II’s grounds for distinguishing the earlier cases are not persuasive. Cannon II explained that there was no challenge in Thorpe and Malin to the “commission’s legal authority to deviate from the total sentence imposed by the Mexican court cases.” 973 F.2d at 1195. That characterization distinguishes Malin, in which the appellant attacked only procedural aspects of the Commission’s determination. Malin, slip op. at 2-3. But it does not distinguish the challenge in Thorpe to the Commission’s authority to impose an American sentence longer than his Mexican sentence. See 965 F.2d at 24. Cannon II made no reference to Mola-no-Garza.

The first of conflicting panel decisions is to be followed. Johnson v. Moral, [*1190] 843 F.2d 846, 847 (5th Cir.1988) (stating that “[n]o rule is more firmly settled in our Circuit”), on reh’g en banc, 876 F.2d 477 (1989). We therefore follow the interpretation of the treaty in pre-Cannon II opinions. That interpretation is that “[t]he combined periods of imprisonment and supervised release that result from the Commission’s determination may not exceed the sentence imposed by the foreign court.” Molano-Garza, 965 F.2d at 22. As that interpretation does not require that the periods of imprisonment and supervised release equal the length of the foreign sentence, the Commission erred in deciding that it had to readjust the petitioners’ supervised release periods.

Petitioners’ sentences are VACATED and REMANDED for redetermination.