                                                                                                                           Opinions of the United
1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-29-1999

Wilson v. US Parole Comm.
Precedential or Non-Precedential:

Docket 98-7452




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Recommended Citation
"Wilson v. US Parole Comm." (1999). 1999 Decisions. Paper 266.
http://digitalcommons.law.villanova.edu/thirdcircuit_1999/266


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Filed September 29, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 98-7452

EDWIN P. WILSON,
       Appellant

v.

UNITED STATES PAROLE COMMISSION;
J.T. HOLLAND, Warden

Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civ. No. 97-cv-00953)
District Judge: Honorable William J. Nealon

Submitted Under Third Circuit LAR 34.1(a)
on June 11, 1999

Before: MANSMANN, RENDELL and STAPLETON, Circuit
Judges.

(Filed September 29, 1999)

       Edwin P. Wilson, Pro Se
       No. 08237-054
       U.S.P. Allenwood
       P.O. Box 3000
       White Deer, PA 17887

        Appellant
       David M. Barasch
        United States Attorney
       Larry B. Selkowitz
        Assistant U.S. Attorney
       228 Walnut Street
       Harrisburg, PA 17108-1754

        Counsel for Appellees

OPINION OF THE COURT

MANSMANN, Circuit Judge.

This appeal arises from the denial of a petition for a writ
of habeas corpus, brought pursuant to 28 U.S.C. 2241.
The petitioner, Edwin P. Wilson, a federal prisoner,
attempted to contract for the murders of several people
while he was in federal custody, but prior to the date on
which the penitentiary received him for service of his
sentence. 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 prisoner subsequent to the commencement
of his sentence." The district court held that the Parole
Commission's interpretation of its own guidelines was
reasonable because Wilson was in federal custody awaiting
trial on another indictment at the time of the new
criminal behavior and denied the petition for a writ of
habeas corpus. Since, however, the same Parole
Commission regulations at 28 C.F.R. 2.10 define sentence
commencement as "the date on which the person is
received at the penitentiary . . . ," we find that the Parole
Commission contravened its regulation to which it is
bound. We will reverse.

I.

As of June 23, 1997, when Wilson filed the petition for a
writ of habeas corpus now before the court, he had been
confined for almost 14 years and incarcerated in the United

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States Penitentiary at Allenwood, in White Deer,
Pennsylvania, serving a 52-year aggregate federal sentence.

In 1982, the U.S. District Court for the Eastern District
of Virginia sentenced Wilson to 15 years (later modified to
10), for transportation of firearms in interstate commerce
with intent to commit a felony. According to the
Presentence Investigation Reports, in 1979, Wilson had
conspired to export four revolvers and supply them to a
Libyan intelligence officer. One of the revolvers was used to
murder a Libyan dissident.

In 1983, the U.S. District Court for the Southern District
of Texas sentenced Wilson to a 17-year term, to run
consecutively to the Virginia sentence, for conspiracy to
violate the Arms Export Control Act, fraudulent statements,
violations of the Munitions Control Act, and unlawful
transportation of hazardous material. Wilson had conspired
in 1977 to import 20 tons of C-4 plastic explosives into
Libya. These explosives were used, in part, to train
terrorists.

Finally, in the fall of 1983, the United States District
Court for the Southern District of New York sentenced
Wilson to a 25-year consecutive sentence for attempted
murder, criminal solicitation, obstruction of justice,
tampering with witnesses, and retaliating against
witnesses. Wilson had been charged with arranging for the
contract murder of eight people, including making a cash
payment delivered by his son, to a person whom he
believed to be a hitman, but who was actually an FBI
agent. All of this was committed while Wilson was awaiting
trial or sentencing on the other charges, and continued
after the United States District Court for the Eastern
District of Virginia sentenced him in 1982. Although during
this time Wilson was in federal custody, he had not yet
been received at a federal prison under a judgment of
sentence.

In 1992, the Parole Commission denied Wilson parole
and rated Wilson's Virginia and Texas offenses as Category
Eight severity. Combined with Wilson's salient factor score
of ten points, the parole guideline range equaled 100+
months. 28 C.F.R. 2.20. Next, the Parole Commission

                               3
considered criminal conduct committed while Wilson was in
federal custody, before and after sentencing in Virginia. The
Commission rated this conduct under the rescission
guidelines, applicable to "new criminal behavior committed
by a prisoner subsequent to the commencement of his
sentence and prior to his release on parole." 28 C.F.R.
 2.36 (a).

The Parole Commission rated the rescission conduct as
Category Eight severity, finding that it constituted
conspiracy to commit murder, and recalculated Wilson's
salient factor score as if he had committed new crimes
while on parole, producing six points. Thus, the Parole
Commission, following the rescission guidelines, added
120+ months to the original 100+ months, more than
doubling Wilson's aggregate guideline range to 220+
months. The National Appeals Board affirmed on
administrative appeal. The Parole Commission scheduled a
reconsideration hearing for October, 2007.

On August 8, 1996, the Parole Commission held a
statutory interim hearing, and the case was again referred
to the National Commission, which maintained the previous
order. The National Appeals Board affirmed this decision,
issuing a final notice of action on August 1, 1997,
confirming the use of the rescission guidelines.

Having exhausted his administrative remedies, Wilson
filed a petition for a writ of habeas corpus in the U. S.
District Court for the Middle District of Pennsylvania,
alleging that the Commission applied its rescission
guidelines in an arbitrary and capricious manner in
extending his parole eligibility date. The district court
denied the petition.

Wilson filed a timely notice of appeal on July 30, 1998.
We have jurisdiction over this appeal pursuant to 28 U.S.C.
  1291. In a federal habeas corpus proceeding, we exercise
plenary review of the district court's legal conclusions. See
Jones v. Lilly, 37 F.3d 964, 967 (3d Cir. 1994). Generally,
federal courts defer to Parole Commission's decisions. See
Zannino v. Arnold, 531 F.2d 687, 690-91 (3d Cir. 1976).
When reviewing a Parole Commission decision, however, we
must determine whether the Commission "has followed

                                4
criteria appropriate, rational and consistent with its
enabling statute and that its decision is not arbitrary and
capricious, nor based on impermissible considerations." Id.
at 690.

II.

The central question before us is whether Wilson's
criminal conduct triggers the application of the rescission
guidelines, thus prolonging incarceration before parole
eligibility. Our starting point on any question concerning
the application of a regulation is its particular written text.
See generally Sutherland, Statutory Construction    45 - 47
(5th ed.)(1991). 28 C.F.R. 2.36 provides:

       2.36 Rescission guidelines.

        (a) The following guidelines shall apply to the
       sanctioning of disciplinary infractions or new criminal
       behavior committed by a prisoner subsequent to
       the commencement of his sentence and prior to his
       release on parole. 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 . . . (emphasis added).

A statute, clear and unambiguous on its face, will not be
interpreted by a court; only statutes which are of doubtful
meaning are subject to the process of statutory
interpretation. Hamilton v. Rathbone, 175 U.S. 414 (1899).
We must give the natural and customary meaning to the
words, and if that is plain, our sole function is to enforce
it according to its terms. Caminetti v. United States, 242
U.S. 470, 485 (1917), United Pacific Nat. Cellular v. United
States, 41 Fed. Cl. 20, 26-27 (1998).

The meaning of the pertinent part of section 2.36 is clear
and unambiguous. "New criminal behavior" necessarily
distinguishes the criminal behavior which activates the
rescission guidelines from the "old" criminal behavior,

                               5
which is the crime underlying the incarceration; "committed
by a prisoner," that is, done by one in prison, "subsequent
to," after, "the commencement of his sentence." Not only is
"the commencement of his sentence" clear to us on its face,
but another section of the same regulations, 28 C.F.R.
 2.10, specifically defines "service of a sentence" in accord
with common usage:

       2.10 Date service of sentence commences.

        (a) Service of a sentence of imprisonment commences
       to run on the date on which the person is received
       at the penitentiary, reformatory, or jail for service
       of the sentence: Provided, however, that any such
       person shall be allowed credit toward the service of his
       sentence for any days spent in custody in connection
       with the offense or acts for which sentence was
       imposed. (emphasis added).

As a rule, a definition which declares what a term means is
binding, National City Lines, Inc. v. LLC Corp ., 687 F.2d
1122 (8th Cir. 1982), and "[a] definition which declares
what a term `means' . . . excludes any meaning that is not
stated." Colautti v. Franklin, 439 U.S. 379, 392 - 393
(1978), citing 2A C. Sands, Statutes and Statutory
Construction 47.07 (4th ed., Supp. 1978), See Leber v.
Pennsylvania Dep't of Envtl. Resources, 780 F.2d 372, 376
(3d Cir. 1986).

We also note that Congress's criminal procedure
provisions provided the identical definition of
commencement of sentence at 18 U.S.C. 3568 (applicable
to Wilson's sentence though now superseded by section
3585) which reads in pertinent part:

        3568. Effective date of sentence; credit for time in
       custody prior to the imposition of sentence

        The sentence of imprisonment of any person
       convicted of an offense shall commence to run from
       the date on which such person is received at the
       penitentiary, reformatory, or jail for service of such
       sentence. The Attorney General shall give any such
       person credit toward service of his sentence for any
       days spent in custody in connection with the offense or
       acts for which sentence was imposed....

                               6
Because the Parole Commission's interpretation conflicts
with Congress's description of the commencement of a
sentence in section 3568, it must be rejected on those
grounds as well. See Mohasco Corp. v. Silver, 447 U.S. 807,
825 (1980) (agency's interpretation of the statute cannot
supersede Congress's chosen language).

The last act in Wilson's criminal conduct was on
February 10, 1983, when the F.B.I. agent posing as a
hitman met with Wilson's son. Between Wilson's
subsequent arrest and trial in New York, Wilson was
sentenced in the Texas case and tried and acquitted on
other charges in the District of Columbia. He was tried in
New York on the attempted murder charges, among others,
and sentenced on November 9, 1983. The following day,
November 10, 1983, Wilson was delivered to the United
States Penitentiary at Marion, Illinois, to serve his sentence.

The commencement of Wilson's sentence was, thus,
November 10, 1983, when he was committed to the Marion
Penitentiary; all other definitions of the commencement of
Wilson's sentence are excluded.

Exclusion of other definitions of "commencement of
sentence" is not only required by the plain language but
also by the regulation taken as a whole. Regulation 2.36
cautiously circumscribes the subject time period: time
served at the prison between arrival at the prison and
release on parole. Further, the regulation provides that
"[c]redit shall be given towards service of these guidelines
for any time spent in custody on a new offense," also
differentiating the time serving the sentence in prison from
"time spent in custody on a new offense."

III.

The Parole Commission determined that Wilson's
sentence commenced to run when he was first received into
federal custody. The District Court agreed, asserting that
"[t]he Commission's interpretation of its own guidelines as
to when a sentence commences to run for the purpose of
determining when an offense was committed is entitled to
deference."

                                7
We find that the Parole Commission's interpretation is
entitled to no deference as to the narrow question of when
a sentence commences to run; the plain language of the
regulation controls. Although courts often substantially
defer to an agency's construction of its own regulations,
Martin v. Occupational Safety & Health Review Comm'n ,
499 U.S. 144, 150, 111 S. Ct. 1171, 1175 - 1176, 113 L.
Ed.2d. 117 (1991), and the Parole Commission enjoys a
great deal of deference as to decisions regarding whether to
grant parole to a particular individual, only where the
meaning of a regulation is ambiguous should the reviewing
court give effect to the agency's "reasonable interpretation,"
i.e., an interpretation which "sensibly conforms to the
purpose and wording of the regulation . . . ." Id., 499 U.S.
at 151, 111 S. Ct. At 1176, (quoting Northern Indiana Pub.
Serv. Co. v. Porter County Chapter of Izaak Walton League
of Am., 423 U.S. 12, 15, 96 S. Ct. 172, 173, 46 L. Ed.2d
156 (1975)).

Here, no deference is warranted because the Parole
Commission's interpretation is inconsistent with the
wording of the regulation. See id., 499 U.S. at 158. The
administering agency's interpretation of a provision
becomes relevant only if neither the plain meaning nor the
legislative history determine interpretation of the provision,
Stanley Work v. Snydergeneral Corp, 781 F.Supp. 659, 663
(E.D.Ca. 1990). We defer only where an agency's
interpretation sensibly conforms to the purpose and the
wording of the regulation.1 Martin, 499 U.S. at 151 (1991).
_________________________________________________________________

1. We recognize that the district court concluded that the Parole
Commission's interpretation is reasonable:

       The Commission's interpretation is reasonable in that, for
rescission
       guidelines purposes, it would make little sense to differentiate
       between a sentenced prisoner, who was in federal custody awaiting
       trial on another indictment, from one who was not faced with
       another indictment and had begun serving his sentence at a
       designated prison.

This conclusion cannot stand where the Parole Commission's
interpretation contravenes the regulation's plain language. Indeed, we
have previously rejected just such an equation between federal custody
and commencement of a sentence. In Gambino v. Morris, 134 F.3d 156

                               8
The Parole Commission must determine that new
criminal conduct occurred within the time circumscribed by
the rescission guidelines before applying those rescission
guidelines to a prisoner's parole eligibility date.
Fundamentally, the Parole Commission must follow its own
regulations, which have the force of law. United States ex
rel Farese v. Luther, 953 F.2d 49, 52 (3d Cir. 1992),
Marshall v. Lansing, 839 F.2d 933, 943 (3d Cir. 1988).
Wilson's criminal conduct, including his attempt to contract
for eight murders while he was in federal custody, occurred
prior to the "commencement of his sentence." Faced with
the facts before it, the Parole Commission should not have
concluded that Wilson's sentence "commenced" earlier
while he was in federal custody. We conclude that the
district court erred in finding the rescission guidelines
applicable to Wilson's parole eligibility calculation.

IV.

Therefore, we will vacate the district court's judgment
and remand the case with directions to the Parole
Commission to recalculate Wilson's parole eligibility date.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit
_________________________________________________________________

(3d Cir. 1998), Ernesto Gambino, a notorious member of an organized
crime family, attempted to escape from secure custody, and the Parole
Commission added additional time before his eligibility for parole.
Though the Parole Commission did not indicate under which provision of
the regulations Gambino's additional penalty was assessed, we
concluded that, on the regulation's face, the rescission guidelines could
not apply, inasmuch as the attempted escape was prior to the verdict
and thus, necessarily, prior to the commencement of Gambino's
sentence. Id. at 158 and fn. 4. Plainly, the regulation does distinguish
between a sentenced prisoner in federal custody and one who has begun
serving his sentence at a designated prison.

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