                            In the
 United States Court of Appeals
                For the Seventh Circuit
                         ____________

Nos. 03-1167, 03-2552
UNITED STATES OF AMERICA,
                                               Plaintiff-Appellee,
                                v.

PAUL FAZZINI,
                                           Defendant-Appellant.
                         ____________
        Appeals from the United States District Court for
        the Northern District of Illinois, Eastern Division.
             No. 86 CR 1—James B. Zagel, Judge.
                         ____________
   ARGUED SEPTEMBER 30, 2004—DECIDED JULY 6, 2005
                   ____________




 Before ROVNER, WOOD, and SYKES, Circuit Judges.
  WOOD, Circuit Judge. After serving 14 years for armed
bank robbery, Paul Fazzini was released from federal prison
on March 22, 2001. While Fazzini’s post-release status has
since become a disputed issue, at the time of his release,
both he and the government believed that he was on
probation. (Fazzini was sentenced before the Federal
Sentencing Guidelines came into effect, which is why su-
pervised release was not an option.) One condition of his
probation required him to submit blood so that his DNA
could be catalogued in the government’s ever-growing
database. See National DNA Index System, Statistics,
2                                     Nos. 03-1167, 03-2552

available at http://www.fbi.gov /hq/lab/codis/clickmap.htm
(as of April 2005, the Combined DNA Index System
(CODIS) contained 2,443,274 distinct DNA profiles). The
federal DNA Analysis Backlog Elimination Act of 2000, 42
U.S.C. §§ 14135-14135e, now makes cooperation a condition
of probation or parole, see 42 U.S.C. § 14135c, and failure
to comply constitutes a misdemeanor, see 42 U.S.C.
§ 14135a(a)(5).
  Fazzini objected to having his blood or DNA collected. On
September 17, 2002, he filed a motion with the district
court arguing that being forced to provide a blood sample
conflicts with his Christian Scientist beliefs, violates his
rights under the Fourth and Fifth Amendments, and con-
travenes the Constitution’s ex post facto clause. (He did not
say anything about the Religious Freedom Restoration Act,
RFRA, 42 U.S.C. § 2000bb-1, and thus neither do we.)
Fazzini asked the district court to appoint counsel on his
behalf and permanently enjoin the government from enforc-
ing the Act against him. The district court denied both
requests and ordered Fazzini to comply. Fazzini appealed.
Interesting though the merits of the DNA claim may be, we
must first untangle the snarl of jurisdictional issues that
have arisen. We conclude that we have appellate jurisdic-
tion over the appeal, but that the district court lacked
jurisdiction to consider the merits of Fazzini’s claims. We
therefore vacate the district court’s order.


                              I
  When the district court denied Fazzini’s motions for in-
junctive relief and appointment of counsel on November 7,
2002, it offered no explanation for its decision, nor did it
enter anything looking like a final judgment under
FED. R. CRIM. P. 32(k) or 32.1 and 18 U.S.C. § 3565(a). At
that point, Fazzini’s probation officer filed a Special Report
with the court, requesting a rule to show cause why
Nos. 03-1167, 03-2552                                         3

Fazzini’s probation should not be revoked because of his
failure to cooperate with this condition. The court set a
hearing for December 17, 2002. When Fazzini did not show
up for this hearing, a warrant was issued for his arrest.
After the authorities caught up with him on January 8,
2003, the judge rescheduled the probation revocation hear-
ing for January 10, 2003.
  At the January 10 hearing, the court decided on its own
initiative to reconsider its earlier denial of Fazzini’s request
for the injunction, stating: “I have ruled on it, but I took
another look at it. . . . I have attempted to read this Chris-
tian Science doctrine, the fact of the matter is, he is prohib-
ited from voluntary acts. This one is involuntary because I
am ordering him to do it.” The court then reinstated
Fazzini’s probation and ordered him to “comply with the
direction of the probation officer.”
   A week later, Fazzini, proceeding pro se, filed his first
notice of appeal to this court (No. 03-1167), asking us to
overturn the district court’s decision denying his request for
an injunction. Noting that the original order denying the
injunction was docketed on November 7, 2002, and con-
cerned that the January 10 hearing may not have resulted
in a final decision with respect to the requested injunctive
relief, we ordered both parties to address the potential
jurisdictional snag. Although interlocutory appeals are
possible from orders granting or denying injunctive relief,
see 28 U.S.C. § 1292(a)(1), FED. R. APP. P. 4(b)(1) neverthe-
less requires that the notice of appeal in a criminal case
“must be filed with the district court within 10 days after
the later of: (i) the entry of either the judgment or the order
being appealed. . . .” Later, the district court entered an
order on June 6, 2003, confirming that the January 10
transcript “contains the final orders of the Court.” Fazzini
filed his second notice of appeal (No. 03-2552) from that
order.
4                                     Nos. 03-1167, 03-2552

  After the case reached this court, the government realized
that it had made a mistake. From the time of Fazzini’s
release in March 2001, Fazzini and the government had
been proceeding under the assumption that Fazzini was
serving his five-year term of probation. Soon after his
release, the United States Probation Office executed a
document stating that Fazzini’s “term of probation is for
a period of 5 years commencing on March 22, 2001.” In
preparation for this appeal, however, the government dis-
covered an even earlier document, signed on the day of
Fazzini’s release, which purported to place him under man-
datory release, a form of parole. Fazzini’s exit document
read, “Upon release, the above named person is to remain
under the jurisdiction of the United States Parole
Commission, as if on parole.” After accepting this new
evidence into the record, we ordered the parties to address
its jurisdictional implications in their briefs on the merits.
  If all of this were not enough, Fazzini was arrested in
Ohio on September 11, 2003, for speeding. He was outside
the bounds of his post-release travel perimeter and pos-
sessed a counterfeit driver’s license. A search of his car
turned up evidence suggesting that he was planning a bank
robbery spree across Wisconsin, Illinois, Indiana, and Ohio.
At this point, on the new understanding that Fazzini was
on a form of parole and not probation, the government
instituted parole revocation proceedings against him. On
March 30, 2004, the U.S. Parole Commission revoked
Fazzini’s parole. We learned at oral argument that Fazzini
has filed a habeas corpus petition in Ohio, contending, as he
does here, that he was on probation at the time of his
rearrest. If this were so, there would be no parole for the
Parole Commission to revoke (although it seems likely that
some action would still be possible, given his extensive
misbehavior).
Nos. 03-1167, 03-2552                                        5

                              II
  The original point of this appeal, the constitutionality of
the DNA Act, is now buried beneath these procedural com-
plications. The first question is whether we have appellate
jurisdiction over the case. That issue turns on whether
Fazzini filed a timely notice of appeal. If appellate juris-
diction is secure, the next question is whether the district
court had jurisdiction. The answer to that depends on
whether Fazzini was on probation, which would be within
the district court’s power to address, or parole, which is
under the exclusive control of the Parole Commission.
   The government argues that we do not have jurisdiction
to hear this case because Fazzini’s notice of appeal even
in No. 03-1167 was untimely. It reasons that since the dis-
trict court denied Fazzini’s motion to enjoin the application
of the DNA Act in November 2002, Fazzini’s January 17,
2003 notice of appeal was far past the 10-day window
allowed by FED. R. APP. P. 4(b). Because this was, at root, a
criminal case, it is not governed by the documentation
requirements for final judgments found in FED. R. CIV. P.
58. Instead, the procedures governing revocation or modi-
fication of probation were the applicable ones, if anything
authorized the district court to act. See 18 U.S.C. § 3565(a);
FED. R. CRIM. P. 32.1(d). Under § 3565(a), the district court
was free to examine the question of Fazzini’s alleged
probation at any time prior to the expiration of the term of
probation (and indeed, under § 3565(c), even beyond that
term as long as the warrant or summons had been issued
prior to its expiration). The district court was therefore free
to reconsider its decision in January 2003, and Fazzini
remained free to file a notice of appeal from either that
ruling or the June 6 order. This court therefore has juris-
diction to decide the appeals.
  The question whether the district court had jurisdiction
over the case is more difficult. As we noted, it turns on
6                                      Nos. 03-1167, 03-2552

whether Fazzini left prison on probation or parole. The
district court is the entity with the power to continue,
modify, or revoke probation. See 18 U.S.C. §§ 3563(c), 3565.
Parole, however, falls under the clemency powers delegated
to the Executive Branch, see U.S. CONST., art. II, § 2. If
Fazzini’s mandatory release really was a form of parole, as
the initial document issued by the Probation Office stated,
then the district court would have had no jurisdiction to act
in response to a request to modify or revoke it. See 18
U.S.C. § 4214 (repealed by the Sentencing Reform Act of
1984, but remaining in effect for defendants, like Fazzini,
who committed the underlying offense before November 1,
1987. Pub. L. 98-473, Title II, § 218(a)(4), Oct. 12, 1984, 98
Stat. 2027; we refer to this below by noting statutory
provisions that are still in effect for parolees). In the event
the Parole Commission rejected Fazzini’s challenge to the
DNA condition, he perhaps could pursue the matter using
a writ of habeas corpus, see 28 U.S.C. § 2241, a Bivens
action, see Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971), or even a claim
under the Administrative Procedures Act, see 18 U.S.C.
§ 4218(a). No such claim would accrue, however, until the
Parole Commission had a chance to consider the issue at
hand. See 42 U.S.C. § 1997e(a).
  We turn, therefore, to the proper characterization of
Fazzini’s status. The confusion stems from two conflicting
documents. First, just before leaving the prison, Fazzini
signed a document titled, “United States Parole Commission
Certificate of Mandatory Release,” which read:
    [Fazzini] was released by the undersigned according to
    Title 18, U.S.C. Section 4163. Upon release [Fazzini] is
    to remain under the jurisdiction of the United States
    Parole Commission, as if on parole as provided in
    Title 18, U.S.C. Section 4164, as amended . . . until
    expiration of the maximum term, or terms of sentence,
    less 180 days on July 4, 2010, with a total of 3,571 days
    remaining to be served.
Nos. 03-1167, 03-2552                                         7

A few days later, Fazzini signed a second document, titled,
“Conditions of Probation and Supervised Release,” which
read: “Under the terms of this sentence, the defendant has
been placed on probation. . . . The defendant’s term of pro-
bation is for a period of 5 years commencing on March 22,
2001.” For reasons that are now lost, Fazzini, the govern-
ment, and the district court all relied on this second doc-
ument and classified Fazzini as a probationer. Our review
of the applicable statutes, however, reveals that the first
document was in fact the one that characterized Fazzini’s
status correctly.
  For reasons irrelevant to this appeal, Fazzini was resen-
tenced in 1990, after he had already served three years in
prison. According to his new sentence, Fazzini was set to
remain in prison for 25 years, after which he was to be on
probation for five years. Prison officials released Fazzini
early under a statute that has since been repealed, which
shortened an inmate’s time in prison if he behaved well
while there. See 18 U.S.C. § 4161 et seq. (repealed by the
Sentencing Reform Act of 1984, see 98 Stat. 1987, but
remaining in effect for parolees). A prisoner released under
this statute is “deemed as if released on parole until the
expiration of the maximum term or terms for which he was
sentenced less one hundred and eighty days.” 18 U.S.C.
§ 4164. Thus, as the first document Fazzini signed correctly
recounted, he began serving a term of “mandatory release,”
as if on parole, until the end of his original prison term, less
180 days.
  Fazzini argues that this conclusion cannot be correct
because he was convicted under 18 U.S.C. § 924(c) (1987),
part of which stipulated at the relevant time that “[n]o
person sentenced under this subsection shall be eligible for
parole during the term of imprisonment imposed herein.”
While Congress has changed this language to reflect the
abolition of parole in the federal system effected by the
Sentencing Reform Act of 1984, the old language still
governs pre-Guidelines crimes.
8                                      Nos. 03-1167, 03-2552

  Although we acknowledge that there is some tension
between the release provided by § 4164 and the parole
prohibition provided by the former version of § 924(c), we do
not find the two to be irreconcilable. As the government
points out, it is still possible to preclude ordinary parole for
prisoners convicted of violating § 924(c) and allow the
automatic rule of § 4164 to operate. In fact, all that § 4164
does is to permit good-time credits to be taken into account
while computing the release date, which is exactly what is
now done in the post-Sentencing Guidelines world in which
there is no parole for any offenses. The “parole” that applies
to defendants like Fazzini is now covered by supervised
release. It would be passing strange to think that Congress
wanted persons sentenced before the Guidelines regime
went into effect to be released at the end of their term, net
of good-time credits, without equivalent supervision. What
§ 924(c) prohibits is the far more generous rule, from the
prisoner’s standpoint, under which he or she would have
become eligible for parole after serving approximately one-
third of the sentence.
  Finally, Fazzini argues that even if he were on a form of
parole at the time of his release, we should still consider the
merits of his claim, because as soon as his period of parole
ends, he will be on probation and subject to the DNA Act.
While Congress has given the federal courts authority to
manage probation, see 18 U.S.C. §§ 3651, 3653 (1982)
(repealed), the Supreme Court has stressed that the courts
must handle probation in such a way as to “avoid interfer-
ence with the parole and clemency powers of the Executive
Branch.” Affronti v. United States, 350 U.S. 79, 83 (1955).
Such interference is not likely when a district court revokes
a parolee’s future probation on account of conduct commit-
ted during the parole term. See Knight v. United States, 73
F.3d 117, 123 (7th Cir. 1995). That type of action affects the
timing and existence of probation, not its conditions. The
situation is quite different if the defendant is attacking a
Nos. 03-1167, 03-2552                                        9

future condition of probation that is also a current condition
of parole. That describes Fazzini’s situation: he is subject to
the DNA requirement both as a condition of his parole and
as a condition of his future probation (if any). See 42 U.S.C.
§ 14135a(a)(2) (requiring DNA from any “individual on
probation, parole, or supervised release . . . who is, or has
been, convicted of a qualifying Federal offense.”). Finding
the collection of DNA an unconstitutional condition of
Fazzini’s future probation would necessarily implicate his
current parole. We conclude that at this point, this issue lies
squarely within the baliwick of the Parole Commission, and
that the district court did not have jurisdiction to consider
Fazzini’s complaint. (We note parenthetically that Fazzini
will be fighting an uphill battle when the time comes, in
light of decisions such as Green v. Berge, 354 F.3d 675 (7th
Cir. 2004).)


                             III
  In summary, although this court has appellate jurisdic-
tion, we conclude in light of all the facts that have now
come out that the district court had no jurisdiction to en-
tertain the case. The order of the district court is therefore
VACATED and the case is remanded for DISMISSAL for want
of jurisdiction.

A true Copy:
       Teste:
                         ________________________________
                         Clerk of the United States Court of
                           Appeals for the Seventh Circuit




                    USCA-02-C-0072—7-6-05
