28 C.F.R. § 2.36

Rescission guidelines

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(a) The following guidelines shall apply to the sanctioning of disciplinary infractions or new criminal conduct 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 corrections 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—≤6 months.

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 corrections center)].

(ii) Other new criminal behavior in a prison facility.

Severity rating in the new criminal behavior (from § 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 corrections center, as Category Six. Grade unlawful possession of a firearm in a community corrections 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 corrections 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 § 2.21 shall be applied, using the new offense severity (from § 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 corrections center that are not limited to the confines of the prison or community corrections 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 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; 68 FR 41530, July 14, 2003]

Notes of Decisions

Cited in 27 cases, 1983–2017 · leading case: Marshall v. Lansing, 839 F.2d 933 (3rd Cir. 1988).

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Marshall v. Lansing, 839 F.2d 933 (3rd Cir. 1988). · cites it 8× “See 28 C.F.R. § 2.36 (a)(1) (1984) (maximum penalty of two months for “drug/alcohol abuse”); 28 C.”

Erasmo Gambino v. E.W. Morris (Warden-Fci Fairton) United States Parole Comm'r, 134 F.3d 156 (3rd Cir. 1998). · cites it 2× “The district court stated that it was assessed pursuant to 28 C.F.R. § 2.36 (a)(23)(l)(A). There is no such section, but it appears that the district court intended to indicate 28 C.”

Gerald McCollum Clifton C. Piggie-Bey, Harry L. Greene-El, & Reynaldo Ramirez-Rodriguez v. Harold Miller, Warden, 695 F.2d 1044 (7th Cir. 1983). · cites it 2× “See 28 C.F.R. § 2.36 (a). And it is irrelevant that they may not be entitled to an immediate parole if the finding of infraction is expunged; habeas corpus has been held to be the proper method of challenging the duration of imprisonment.”

Edwin P. Wilson v. United States Parole Comm'n J.T. Holland, Warden, 193 F.3d 195 (3rd Cir. 1999). · cites it 3× “He alleges that the United States Parole Commission violated its own rules when it applied the rescission guidelines of 28 C.F.R. § 2.36 to his conduct, when the regulation’s plain language applies only to “disciplinary infractions or new criminal behavior committed by a…”

Gometz v. United States Parole Comm'n, 294 F.3d 1256 (10th Cir. 2002). · cites it 3× “See 28 C.F.R. § 2.36 . Each such crime or infraction is placed in one of the eight offense severity categories.”

United States v. Thomas E. Silverstein, Adolph Reynosa, Clayton A. Fountain, & Edgar Hevle, 732 F.2d 1338 (7th Cir. 1984). “§ 4205 (a); 28 C.F.R. § 2.36 (a). But since parole in the federal system is not mandatory, the effect of an additional conviction on a prisoner’s prospects for parole is inherently speculative, and may be slight when the prisoner’s prospects for parole are dim anyway because of…”

John Albert Kelly v. D.J. Southerland, Warden Fed. Corr. Inst., Talladega, Alabama, 967 F.2d 1531 (11th Cir. 1992). · cites it 5× “Kelly’s release date with respect to the 1984 prison infraction according to 28 C.F.R. § 2.36 (1988), the rescission guidelines in effect at the time of the hearing.”

John R. Blue v. Marion Lacy, Warden, Fci, Sandstone, & Carol Pavilack Getty, Comm'r, U.S. Parole Comm'n, 857 F.2d 479 (8th Cir. 1988). · cites it 2× “In addition, 28 C.F.R. § 2.36 (a) refers to “criminal behavior” and “criminal conduct.”

Leroy Turner v. Gary L. Henman, Warden, United States Penitentiary, Marion, Illinois, 829 F.2d 612 (7th Cir. 1987). “Taken together with a 0-34 month guideline range for seventeen infraction Turner committed while in prison, see 28 C.F.R. § 2.36 (1986), Turner ended up with a total guideline sentence range of 124-214 months.”

Jackson v. Carlson, 707 F.2d 943 (7th Cir. 1983). “But concerned that the record of his disciplinary infraction might delay his parole — as well it might, see 28 C.F.R. § 2.36 (a) — he seeks to have that record expunged.”

Ford, Jr. v. Massarone, 208 F. Supp. 3d 91 (D.D.C. 2016). “If the candidate has committed “any significant disciplinary infractions since the beginning of confinement on the current offense in the case of an initial hearing,” the Commission determines the applicable guideline range under 28 C.F.R. § 2.36 for those infractions. 28 C.”

United States v. Scott, 743 F. Supp. 400 (D. Maryland 1990). · cites it 2× “See 28 C.F.R. § 2.36 (a)(2)(i)(A). Scott correctly points out that the alleged escape was from a non-secure facility.”

Show all 27 citing cases →

— 28 C.F.R. § 2.36(a)(1) — 2 cases

Marshall v. Lansing, 839 F.2d 933 (3rd Cir. 1988). “See 28 C.F.R. § 2.36 (a)(1) (1984) (maximum penalty of two months for “drug/alcohol abuse”); 28 C.”

Marshall v. Lansing, 839 F.2d 933 (3rd Cir. 1988).

— 28 C.F.R. § 2.36(a)(2)(i)(A) — 1 case

Lychanko, Valentin v. Davis, Randy, 129 F. App'x 316 (7th Cir. 2005).

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