                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                 UNITED STATES COURT OF APPEALS                          DEC 14 1999

                                  TENTH CIRCUIT                     PATRICK FISHER
                                                                             Clerk



 HENRY J. BORELLI,

          Petitioner-Appellant,
                                                       No. 99-3234
 v.
                                               (D.C. No. 97-CV-3217-RDR)
                                                         (Kansas)
 PAGE TRUE, Warden,
 USP-Leavenworth,

          Respondent-Appellee.




                         ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, BALDOCK and HENRY, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cause is

therefore ordered submitted without oral argument.




      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, or collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      In 1986 Henry Borelli was convicted in the Southern District of New York

for his participation in a stolen car ring. He was sentenced to ten years for each

of fifteen violations, to be served consecutively, resulting in a total sentence of

150 years. He is currently incarcerated at the United States Penitentiary in

Leavenworth, Kansas. Mr. Borelli appeals the district court’s denial of his

petition for writ of habeas corpus under 28 U.S.C. § 2241.

      The Sentencing Reform Act of 1984 (SRA) abolished the United States

Parole Commission (Commission) and repealed federal parole statutes in favor of

a determinate sentencing scheme employing sentencing guidelines. Pub. L. No.

98-473, Title II, ch. II, 98 Stat. 1987, 2017-2034 (codified as amended at 18

U.S.C. § 3551-3742 (1994)). The SRA became effective on November 1, 1987.

See Lewis v. Martin, 880 F.2d 288, 290 (10th Cir. 1989); Lightsey v. Kastner, 846

F.2d 329, 331-32 & n.10 (5th Cir. 1988). Because Mr. Borelli was convicted

prior to the effective date of the SRA, he was not sentenced pursuant to the new

system and he remains under the jurisdiction of the Commission, subject to the

parole eligibility in effect under his sentence.

      Congress originally extended the Commission’s existence for five years

after the SRA’s effective date so that the Commission could continue to process

“old law offenders” like Mr. Borelli, whose crimes were committed prior to the

effective date. This five year time frame was later extended to ten, and then to


                                          -2-
fifteen years, so that the Commission is currently scheduled to expire on October

31, 2002. See Pub. L. No. 101-650, Title III, § 316, 104 Stat. 5089, 5115

(extension to ten years); Pub. L. No. 104-232, § 2(a), 110 Stat. 3055 (extension to

fifteen years). The SRA, as amended, requires the Commission to set a release

date according to parole guidelines for all individuals sentenced under the old

system who will still be incarcerated when the fifteen year phase-out period ends.

It must set this date within enough time to permit consideration of an appeal

before the Commission expires. See SRA § 235(b)(3), 98 Stat. at 2032.

      Mr. Borelli first argues that the extension of the Commission’s life violates

the Due Process and Ex Post Facto clauses of the U.S. Constitution. In making

this argument, Mr. Borelli apparently assumes that the only thing preventing him

from being re-sentenced under the new system is the continued existence of the

Commission, and that the prolonged life of the Commission thus constitutes an

impermissible “waiting period.” He is mistaken.

      The district court correctly pointed out in its memorandum and order that

the extension of the Commission’s phase-out period does not bear upon the

constitutional analysis. Indeed, it affects Mr. Borelli’s situation very little.

While it may result in a longer period of time before the Commission sets a

release date for him, it does not alter what his parole eligibility or release dates

will actually be. See, e.g., Lewis, 880 F.2d at 290 (§ 235(b)(3) does not entitle


                                          -3-
defendants to release within guideline range). The length of Mr. Borelli’s

incarceration is not related to the length of the Commission’s life, and nothing in

the SRA gives the Commission or any other entity the ability to re-sentence

individuals who were sentenced under the old system. See id. at 291. 1

      Mr. Borelli next argues that the existence of the dual systems violates equal

protection. This argument is also unavailing. Because prisoners are not a suspect

class, see Moss v. Clark, 886 F.2d 686, 690 (4th Cir. 1989), the SRA need only

withstand rational basis scrutiny. Legislative distinctions affecting the portions

of sentences that must be served in prison satisfy equal protection standards when

they are rationally related to legitimate state purposes. See Romano v. Luther,

816 F.2d 832, 842 (2d Cir. 1987).

      Congress enacted the SRA with the goals of streamlining the sentencing

process and equalizing terms of incarceration for similarly situated prisoners.

Congress clearly made the SRA prospective in application, see Pub. L. No. 100-

182, § 2(a), 101 Stat. 1266 (1987), because to do otherwise would subject “old



      1
        Although Mr. Borelli has been eligible for parole since 1996, he has
waived his parole consideration and has failed to appear before the Commission
for parole hearings. This is apparently because of his misconception that the
Commission and the parole system are preventing him from receiving a more
lenient sentence under the new system. If this is the case, Mr. Borelli is making
an improvident decision to waive participation in the only mechanism which
might enable him to obtain release from prison. Without parole, his mandatory
release date is 2072.

                                         -4-
law” prisoners to a change in their sentences. This would expose the SRA to

challenge as an unconstitutional ex post facto law. In addition, it would be costly

and burdensome for the courts to re-sentence offenders who were properly

sentenced under the applicable law at the time. See Swinson v. United States

Parole Comm’n, 682 F. Supp. 29, 31 (E.D.N.C. 1988). Because Congress had a

rational basis for creating a new sentencing system and applying it prospectively,

the existence of two separate categories of federal prisoners does not violate

equal protection.

      Mr. Borelli has not shown that his rights are violated by the continuation of

the Commission, nor has he presented any viable argument as to why or how he

could be re-sentenced under the new system. Accordingly, the district court’s

decision denying Mr. Borelli’s petition for writ of habeas corpus is AFFIRMED.


                                       ENTERED FOR THE COURT


                                       Stephanie K. Seymour
                                       Chief Judge




                                         -5-
