                                                                    [PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                                                                 FILED
                        ________________________ U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                                               07/29/99
                                No. 97-5570                 THOMAS K. KAHN
                         ________________________               CLERK
                        D.C. Docket No. 97-71-CV-JAL

HECTOR RICARDO MANSO, JR.,

                                                        Petitioner-Appellant,

      versus

FEDERAL DETENTION CENTER, MIAMI,
Patrick Whalen, Warden,

                                                        Respondent-Appellee.
                         _________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        _________________________

                                 (July 29, 1999)


Before BLACK and BARKETT, Circuit Judges, and CUDAHY*, Senior Circuit
Judge.


_________________
*Honorable Richard D. Cudahy, Senior U.S. Circuit Judge for the Seventh Circuit,
sitting by designation.
CUDAHY, Senior Circuit Judge:
       Hector Manso pleaded guilty to certain drug-related offenses and was

sentenced to one year imprisonment to be followed by five years special parole.

When Manso violated the terms of his special parole, the Parole Commission

revoked it and sent him back to prison for a further two months. He was then re-

released on special parole. One year later, Manso’s special parole was revoked for

a second time. He was returned to prison, escaped, was rearrested and eventually

served out the remainder of his special parole term in prison. He is currently doing

time for the escape. Manso petitioned the district court for a writ of habeas corpus

arguing that the special parole statute, see 21 U.S.C. § 841(c), does not permit the

Parole Commission to impose a new term of special parole once the original term

has been revoked. The district court denied the petition and Manso now appeals.

We part company with the district court and hold that the Parole Commission

exceeded its authority in assigning Manso an additional term of special parole.

However, because we find that Manso was not entitled to an unconditional release,

we affirm the district court’s denial of his habeas petition.



Background

      On March 5, 1984, Manso pleaded guilty to conspiracy to import marijuana

in violation of 21 U.S.C. §§ 952(a) & 960(a)(1) and importation of marijuana in


                                           2
violation of 21 U.S.C. §§ 952(a) & 960(a)(1) and 18 U.S.C. § 2. He was sentenced

by the United States District Court for the Southern District of Mississippi to one

year imprisonment to be followed by five years special parole and five years

probation. On March 23, 1985, Manso was released from prison and began serving

his five-year special parole term. On February 24, 1988, a warrant was executed

alleging that Manso had committed certain parole violations. The Parole

Commission revoked Manso’s special parole and returned him to prison for two

months incarceration but gave him credit for street time, i.e. his special parole time

spent on the street. On May 9, 1988, Manso was re-released on special parole. At

that time, he had 682 days remaining of the five-year special parole term and a full-

term expiration date of March 22, 1990. However, on June 4, 1989, on a tip from

Manso’s probation officer, a warrant was issued charging Manso with cocaine

distribution. On October 10, 1990, following a parole cancellation hearing, the

Commission revoked Manso’s special parole for a second time, denied him credit

for any street time (including the time previously credited) and ordered that he be

denied any further parole. Manso escaped from custody on December 16, 1990

and remained at large for five and a half years. Following his arrest, he was

convicted of escape on April 28, 1997 and sentenced to 27 months imprisonment to

run consecutively to the special parole violator term he was serving at the time of


                                          3
his escape. On April 10, 1998, he was released from the special parole violator

term and began serving his 27 month sentence for escape. On January 13, 1997,

Manso filed a writ of habeas corpus in the district court. The case was assigned to

a magistrate judge and a hearing was conducted. The district court denied the

relief sought, adopting in full the report and recommendation of the magistrate

judge.



Discussion

          Special parole is a statutory creation that was used in sentencing up until the

late 1980s. Unlike regular (or traditional) parole, whereby the Parole Commission

releases an individual into the community before the end of his term of

imprisonment, special parole was imposed by the district court at sentencing and

followed the term of imprisonment.1 Special parole was eventually replaced by

supervised release, a similar mechanism that is administered by the courts. This

appeal focuses on the special parole statute’s revocation provision, § 841(c), which

states:

          1
          As the Seventh Circuit has explained: “Three things are ‘special’ about special parole:
first, special parole follows the term of imprisonment, while regular parole entails release before
the end of the term; second, special parole was imposed, and its length selected, by the district
judge rather than by the Parole Commission; third, when special parole is revoked, its full length
becomes a term of imprisonment. In other words, ‘street time’ does not count toward completion
of special parole . . .” Evans v. United States Parole Comm’n, 78 F.3d 262, 263 (7th Cir. 1996).

                                                4
      A special parole term imposed under this section or section 845 of this title
      may be revoked if its terms and conditions are violated. In such
      circumstances the original term of imprisonment shall be increased by the
      period of the special parole term and the resulting new term of imprisonment
      shall not be diminished by the time which was spent on special parole. A
      person whose special parole term has been revoked may be required to serve
      all or part of the remainder of the new term of imprisonment . . .

18 U.S.C. § 841(c). Manso argues that the Parole Commission lacked the authority

to impose a second term of special parole after it had revoked the original term. He

concedes that the Commission may incarcerate a special parole violator for the full

duration of the special parole term (or for a lesser term) without any credit for

street time. But once time has been served for the parole violation, Manso

maintains that the prisoner must be released unconditionally and not on special

parole. In other words, the Commission, in 1988, could have imprisoned Manso

for five years (the duration of his special parole term) but, having chosen to

imprison him for only two months, it could not re-release him on special parole.

By way of analogy, Manso points to the supervised release statute which

superseded the special parole statute. See 18 U.S.C. § 3583(e). In its original

form, the supervised release statute allowed a district court to modify or “revoke”

an individual’s supervised release and return the individual to prison to serve all or

part of the remainder of his supervised release term. In construing the statute, we

joined a majority of our sister circuits in holding that, where supervised release had


                                          5
been revoked and the individual returned to prison, the court could not impose an

additional term of supervised release. See United States v. Tatum, 998 F.2d 893,

895 (11th Cir. 1993).2

       The Parole Commission has a different take on this principle as applied to

special parole under § 841(c). As the agency charged with administering the

statute, the Commission has construed § 841(c) to permit re-release on special

parole for the remainder of the original special parole term imposed by the district

court. See 28 C.F.R. §§ 2.52(b), 2.57(c) & 2.57(d). The Commission contends

that its construction is reasonable because it respects the sentence imposed by the

district court and, at the same time, it comports with the Congressional objective of

ensuring a period of post-imprisonment supervision. In addition, the Commission

rejects the analogy with supervised release on the ground that special parole is an

entirely different statutory creature.

       This issue is one of first impression in this Circuit. In our sister circuits that

have addressed the issue, two divergent views have emerged. The first view holds

that a special parole violator who has been returned to prison may be reparoled as a

special parolee to continue serving the remaining, unserved portion of his special



       2
        But see United States v. Williams, 2 F.3d 363, 364-65 (11th Cir. 1993) (applying Tatum
but expressing disagreement with its rationale), discussed below.

                                               6
parole term. The special parolee receives no credit for street time (time previously

spent on special parole) but does receive credit for time spent in prison on a

violator term. The District of Columbia Circuit and the Eighth Circuit have

subscribed to this view. See United States Parole Comm’n v. Williams, 54 F.3d

820, 822-23 (D.C. Cir. 1995) (holding that the phrase “new term of imprisonment”

in § 841(c) was sufficiently ambiguous to permit incarceration plus time spent on

the street in the form of special parole); Billis v. United States, 83 F.3d 209 (8th

Cir. 1996) (same). This was also the position of the district court and magistrate

judge below and is the approach which the Parole Commission asks us to endorse

on appeal.

      The second view is that when special parole is revoked for parole violations

and the offender is returned to prison, he may be released subsequently not on

special parole but on regular parole. This is the view of the majority of the circuits

that have addressed the issue. See Strong v. United States Parole Comm’n, 141

F.3d 429, 433 (2d Cir. 1998); Fowler v. United States Parole Comm’n, 94 F.3d

835, 840 (3d Cir. 1996) (“the parole that is imposed after special parole is revoked

can only be traditional parole”); United States v. Robinson, 106 F.3d 610, 612 (4th

Cir. 1997); Campos v. United States Parole Comm’n, 120 F.3d 49, 50 (5th Cir.

1997); Evans v. United States Parole Comm’n, 78 F.3d 262, 264 (7th Cir. 1996)


                                           7
(“the first revocation turns special parole into regular imprisonment, release from

which is normal parole”); Robles v. United States, 146 F.3d 1098, 1102 (9th Cir.

1998).3 We subscribe to this view for several reasons.

       We begin with the statutory text. See Kelly v. Robinson, 479 U.S. 36, 43,

107 S. Ct. 353, 93 L. Ed. 2d 216 (1986). Section 841(c) authorizes the

Commission to revoke a term of special parole for a violation of its conditions and

return the parolee to prison for a “new term of imprisonment” -- equal to the

special parole term -- without any credit for street time. It further provides that the

prisoner be required to serve “all or part of the remainder of the new term of

imprisonment.” Thus, after revoking special parole and returning the offender to

prison, the Commission clearly has the authority to release him to serve the

remainder of his new term on the street. As Manso suggests, the language of §

841(c) is similar to that of the supervised release statute (now repealed).4 In

Tatum, we held that, while § 3583(e) (formerly governing supervised release)

       3
      At least one district court in this Circuit has followed this line. See United States v.
Clemmons, 945 F. Supp. 1519 (M.D. Fla. 1996).
       4
         The statute provided that a court could “revoke a term of supervised release, and require
the person to serve in prison all or part of the term of supervised release without credit for time
previously served on postrelease supervision . . .”. 18 U.S.C. § 3583(e)(3). Congress has since
amended § 3583 to specifically authorize a district court to reimpose supervised release after
revocation. See United States v. Strong, 141 F.3d 429, 432-33 (2d Cir. 1998) (finding
“compelling reasons” to interpret §§ 3583(e) and 841(c) together); United States v. Robinson,
106 F.3d 610, 612 (4th Cir. 1997) ( noting that the distinctions between the two programs are
“distinctions without a difference”) (internal quotation and citation omitted).

                                                 8
authorized the district court to “revoke” supervised release and require the offender

to serve time in prison, nothing in the statute authorized the court to impose an

additional term of supervised release. See 998 F.2d at 895. We quoted with

approval the reasoning of the Fifth Circuit:

       Section 3583(e)(3) authorizes the district court to “revoke” a term of
       supervised release. “Revoke” generally means to cancel or rescind. Once a
       term of supervised release has been revoked under § 3583(e), there is
       nothing left to extend, modify, reduce or enlarge under § 3583(e)(2). The
       term of release no longer exists.

United States v. Holmes, 954 F.2d 270, 272 (5th Cir. 1992). An additional term of

supervised release could not be imposed “given the conspicuous absence of a

statutory provision clearly permitting a court to do so.” United States v. Malesic,

18 F.3d 205, 208 (3d Cir. 1994). Several other courts of appeals adopted a similar

construction of § 3583(e).5 Applied to § 841(c), this reasoning suggests that the

term of special parole, once revoked, is extinguished and replaced by “a normal

term of imprisonment.” Evans, 78 F.3d at 264. Section 841(c) allows the Parole

Commission to revoke a term of special parole, but not to reimpose or extend it;



       5
         See United States v. Koehler, 973 F.2d 132, 134-36 (2d Cir. 1992); United States v.
Cooper, 962 F.2d 339, 341 (4th Cir. 1992); United States v. Holmes, 954 F.2d 270, 272 (5th Cir.
1992); United States v. Truss, 4 F.3d 437, 441 (6th Cir. 1993); United States v. McGee, 981 F.2d
271, 274-76 (7th Cir. 1992); United States v. Behnezhad, 907 F.2d 896, 898-99 (9th Cir. 1990);
United States v. Rockwell, 984 F.2d 1112, 1116-17 (10th Cir. 1993). The First and Eighth
Circuits have taken a different view. See United States v. O’Neil, 11 F.3d 292, 293 (1st Cir.
1993); United States v. Schrader, 973 F.2d 623, 625 (8th Cir. 1992).

                                               9
the Commission can only return the violator to prison for all or part of the new

term of imprisonment.

      In United States v. Williams, 2 F.3d 363 (11th Cir. 1993), another panel of

this Circuit expressed its disagreement with the holding in Tatum, deriving from

common sense and the language of § 3583(e) a Congressional intent to allow the

district court the option, after revocation of supervised release, to imprison the

offender for all or, alternatively, only part of the original term of supervised

release. See id. at 365 (“It is hard to imagine why Congress might authorize [a

sentence of imprisonment for the full supervised release term] but nevertheless

withhold authority to impose a more lenient sentence – e.g., the sentence in this

case, one-half of the original supervised release term in prison and the other half on

supervised release.”) Congress subsequently amended the supervised release

statute and mooted this disagreement. But, in any event, we believe that the

concerns voiced in Williams are assuaged in the present context by certain factors

unique to special parole. Recall that both the district court and the Parole

Commission have a hand in the operation of special parole: the district court

imposes the original term and determines its length whereas the Commission

revokes it. The Commission – unlike the district court in the supervised release

context – lacks any inherent authority to create or impose terms of special parole.


                                          10
See Evans, 78 F.3d at 265 (“The Parole Commission cannot ‘impose’ a term of

special parole any more than it can ‘sentence’ a defendant to prison.”); Strong, 141

F.3d at 433. On the other hand, the Commission does have the authority to release

an offender from incarceration to serve the remainder of his term under non-

custodial supervision on regular or traditional parole. Thus, the Commission

always has at its disposal a more lenient option than incarceration (following

revocation) for the full duration of the original term.

      The unresolved issue, then, is the nature of the release -- special parole or

regular parole. While Congress clearly intended the possibility that a special

parole violator could be released before the end of his new term of imprisonment,

as a practical matter, we fail to see why release should take the form of special

parole. Release into the community is, by its nature, more akin to regular parole.

It is a conditional release before the end of a term of imprisonment; the

Commission merely allows the offender to serve the remainder of his term under

non-custodial supervision. See Fowler, 94 F.3d at 839 (“[Regular parole] is a part

of a sentence of imprisonment, and has historically been a mechanism whereby one

could be released yet continue to serve the sentence -- so long as the parolee

complied with those rules of society that were a condition of parole. In stark

contrast, special parole is a statutory creation imposed in addition to any term of


                                          11
years”) (internal citation omitted). Moreover, the fact that § 841(c) denies the

special parole violator any credit for street time lends a commonsense attraction to

the view that the special parole violator is released on regular parole. If the Parole

Commission had the authority to re-release the offender to serve his special parole

term anew (minus any time spent in prison following revocation), a persistent

violator would be forced to commence his special parole term from scratch each

time it was revoked. By creating additional terms of special parole, the

Commission could trigger an endless cycle of incarceration and release on special

parole.

      Manso supports the majority view insofar as it holds that, when a special

parole violator has been returned to prison, the Parole Commission cannot release

him to another term of special parole. But he asks us to go one step further and

hold that the special parole violator cannot be released on any form of parole –

special or regular – and must be released unconditionally. In support of his

position, Manso cites Artuso v. Hall, 74 F.3d 68 (5th Cir. 1996) in which the Fifth

Circuit held that “when the [Commission] cancels or rescinds a term of special

parole, nothing in former section 841(c) provides it with additional authority to

impose a second term.” Artuso, 74 F.3d at 71. The Fifth Circuit has since

subscribed to the majority view -- that the parolee can be released on regular or


                                          12
traditional parole -- observing that “Artuso did not reach the question of the

Commission’s powers beyond imposing a second term of special parole.” Campos,

120 F.3d at 50. We fail to see how Artuso supports Manso’s claim that the

Commission lost jurisdiction over him altogether when his original term of special

parole was revoked and he was imprisoned for a time. Nor does the text of §

841(c) avail Manso’s cause. The offender is re-released to serve the remainder of

his “new term” under non-custodial supervision and the Commission clearly

retains jurisdiction over him for the duration of that term. See Fowler, 94 F.3d at

839, n.5 (noting that, under 18 U.S.C. § 4210 (repealed), the Commission’s

jurisdiction terminates “no later than the date of the expiration of the maximum

term or terms for which [a parolee] was sentenced . . .”); Campos, 120 F.3d at 50.

Thus, we reject Manso’s contention that when the Parole Commission returns a

special parole violator to prison, it must chose between the extremes of forcing the

offender to serve the entirety of his term behind bars or, alternatively, releasing

him unconditionally.6

       Turning to the facts of the present case, the Parole Commission argues that,

even applying the majority view, Manso is not entitled to the relief he seeks.


       6
          See United States v. Robles, 146 F.3d 1098, 1102 (9th Cir. 1998) (“[The special parole
violator] doubtless would prefer that his release be considered unconditional, but we conclude
that it is more appropriately considered to be release on ordinary parole.”).

                                                13
Manso commenced his five-year special parole term on March 23, 1985 with a full

term date of March 22, 1990. His special parole was revoked and a warrant for

parole violations executed against him on February 24, 1988. Without any credit

for street time, Manso’s new full term date would have been five years from the

date of the execution of the warrant, i.e. February 24, 1993. Applying the majority

view, his subsequent release on May 9, 1988, would be treated as release on

regular parole. The Commission points out that Manso’s regular parole would

have been canceled on June 9, 1989 when a second warrant was executed for

cocaine distribution. However, he would have received credit for the time he spent

in the community between May 9, 1988 and June 9, 1989 so that his full-term date

would have remained February 23, 1993. When he escaped from prison on

December 17, 1990, Manso had just over two years and two months of his term

remaining. He was arrested on June 18, 1996 and released on April 10, 1998 – a

few months shy of his full term – to begin serving a 27-month sentence for the

escape. Manso actually served slightly less – and certainly not more -- than his

full-five-year term. In the circumstances, we agree with the Commission that, even




                                         14
recalculating his sentence consistent with this opinion, Manso was not entitled to

an accelerated or early release date.7

       In summary, for the foregoing reasons we disagree with the district court’s

construction of § 841(c) and hold that the Parole Commission erred when it

released Manso on special parole for a second time. However, because Manso has

failed to show that he was prejudiced by the Commission’s error – and,

consequently, that he is entitled to release from incarceration -- we affirm the

district court’s denial of his habeas petition.

                                                                                  AFFIRMED




       7
         The Commission contends that notwithstanding its error in re-releasing Manso on
special parole, it is not estopped from treating the May 9, 1988 release as a regular parole. It
notes that, at the time, our sister circuits had not addressed the construction of § 841(c). In
addition, the Commission argues that Manso has not relied on the error to his detriment. Manso
appears to concede the point, having failed to submit a reply brief responding to any aspect of
the Commission’s argument on the facts.

                                               15
