                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 99-2273
                                   ___________

Robert Hutchings,                    *
                                     *
                  Appellant,         *
                                     * Appeal from the United States
             v.                      * District Court for the
                                     * Eastern District of Missouri.
U.S. Parole Commission; Calzona      *
Hall, Director of the St. Louis      *
County Justice,                      *
                                     *
                  Appellees.         *
                                ___________

                             Submitted: December 14, 1999

                                 Filed: February 2, 2000
                                  ___________

Before BEAM and HEANEY, Circuit Judges, and KYLE1, District Judge.
                            ___________

HEANEY, Circuit Judge.

       Robert Hutchings was convicted of two counts of mail fraud, one count of wire
fraud, and one count of making a false statement to a bank. As part of his sentence,



      1
      The Honorable Richard H. Kyle, United States District Judge, for the District
of Minnesota, sitting by designation.
was ordered to pay $250,000 in restitution. Hutchings was paroled2 three times, and
each time his parole was revoked by the U.S. Parole Commission (Commission) for
failure to pay restitution. Hutchings petitioned the district court for a writ of habeas
corpus, pursuant to 28 U.S.C. § 2241 (1999), claiming that the third time the
Commission revoked his parole, it lacked jurisdiction, and violated his due process
rights by amending its violator’s warrant without conducting a preliminary interview.
The district court denied his petition, and we affirm.

                                I. BACKGROUND

        On December 30, 1983, Hutchings was sentenced by the U.S. District Court for
the Eastern District of Missouri to fifteen years in prison for mail fraud. Nine months
later, the U.S. District Court for the Southern District of New York sentenced him to
a concurrent ten-year prison term for wire fraud and making a false statement to a bank.
On January 10, 1986, the U.S. District Court for the Southern District of Florida
sentenced Hutchings to a concurrent five-year prison term for mail fraud and ordered
him to pay $250,000 in restitution.

       Hutchings was first paroled on January 4, 1989, but two years later the
Commission revoked his parole for failure to pay restitution. Hutchings’ sentence was
credited for time spent on parole. He was reparoled on March 19, 1992 on the
condition that he make monthly restitution payments of $150, with a scheduled increase
to $350 per month effective October 1992. The Commission again revoked his parole
on May 28, 1993 and granted him credit for time spent on parole.


      2
        We recognize that the sentencing guidelines abolished parole. However
pre-guidelines prisoners, like Hutchings, remain subject to the old statutory parole
provisions. See Parole Commission Phaseout Act of 1996, Pub. L. No. 104-232, §§
1-3, 110 Stat. 3055, 3056 (1996) (extending the Commission's oversight of
pre-guidelines prisoners to November 1, 2002).

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        Hutchings was paroled for a third time on July 6, 1995, on the condition that he
make monthly restitution payments of $750. In July 1996, the Commission issued a
letter reprimanding Hutchings for not paying restitution, and in 1997, it ordered that
Hutchings be placed in a community corrections center for 120 days and undergo
alcohol treatment.

      On September 11, 1998, Hutchings’ probation officer requested that the
Commission issue a violator’s warrant because Hutchings delinquently filed several
monthly reports, failed to submit a report for July 1998, had been unemployed since
December 1997, was not seeking employment, and had not made a monthly restitution
payment since July 23, 1997. The Commission issued the warrant, charging Hutchings
with: (1) violating the special condition on restitution, (2) failing to maintain regular
employment, and (3) failing to submit supervision reports. Hutchings was arrested on
October 5, 1998.

       The Commission held a preliminary interview on October 7, 1998 to determine
whether there was probable cause to support the alleged violations. Approximately one
month after the preliminary interview, the Commission amended the first charge from
violating the restitution order to willful failure to pay restitution. No preliminary
interview was held on the amended charge, but based on the facts gathered during the
October 7 interview, a parole commissioner concluded that probable cause existed to
support the willful failure to pay restitution charge.

       The Commission held a parole revocation hearing on January 19, 1999, and it
revoked Hutchings’ parole for willful failure to pay restitution. In addition, Hutchings
lost credit on his sentence for the time the Commission found he willfully violated his
parole.

       Hutchings petitioned the district court for habeas corpus relief on the grounds
that the Commission lacked jurisdiction to conduct the revocation hearing, violated his

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due process rights by failing to conduct a preliminary interview on the willful failure
to pay restitution charge, and failed to timely conduct his revocation hearing. The
district court denied habeas relief. Hutchings appeals.

                                 II. DISCUSSION

       Hutchings raises two issues on appeal: (1) that the Commission lacked
jurisdiction to revoke his parole, and (2) that the Commission violated his due process
rights. Although we do not have jurisdiction to review the Commission’s substantive
decisions, we will review such decisions to determine whether the Commission
exceeded its statutory limits. See Jones v. U.S. Bureau of Prisons, 903 F.2d 1178,1183
(8th Cir. 1990). Whether the Commission had jurisdiction to revoke Hutchings’ parole
and whether the Commission’s proceedings violated Hutchings’ due process rights are
questions of law, and we therefore review de novo. See Odem v. Hopkins, 192 F.3d
772, 774 (8th Cir. 1999).

       Because the jurisdictional issue depends on whether Hutchings’ due process
rights were violated, we address the latter issue first.

                                   A. Due Process

       Hutchings argues that the Commission violated his due process rights by failing
to conduct a preliminary interview on the amended charge of willful failure to pay
restitution. An alleged parole violator must have the opportunity for a preliminary
interview “to determine if there is probable cause to believe that he has violated a
condition of his parole.” 18 U.S.C. § 4214(a)(1)(A) (1999). However, “technical and
nonprejudicial variances in parole revocation proceedings do not rise to constitutional
violations.” Perry v. U.S. Parole Comm’n, 831 F.2d 811, 813 (8th Cir. 1987), cert.
denied, 485 U.S. 963 (1988).


                                          4–
       Although the Commission did not conduct a preliminary interview on the
amended charge, as required by § 4214(a)(1)(A), its failure to do so was a technical
and nonprejudicial variance in the proceedings, and Hutchings’ due process rights were
not violated. First, Hutchings had the opportunity at the preliminary interview to
present evidence on the failure to pay restitution charge. Although the willfulness of
Hutchings’ failure to pay restitution was not at issue, the basic facts involved in the
charge were. From these facts, a parole commissioner concluded that probable cause
existed to support the amended charge.

     Second, Hutchings has failed to show that he was prejudiced. In Bearden v.
Georgia, the Supreme Court stated:

      [I]n revocation proceedings for failure to pay a fine or restitution, a
      sentencing court must inquire into the reasons for the failure to pay. If the
      probationer willfully refused to pay or failed to make sufficient bona fide
      efforts legally to acquire the resources to pay, the court may revoke
      probation and sentence the defendant to imprisonment within the
      authorized range of its sentencing authority.

461 U.S. 660, 672 (1982) (emphasis added).

       The evidence presented at the parole revocation hearing demonstrates that
Hutchings failed to make a good faith effort to seek employment. The Commission
found that Hutchings did not make a legitimate effort to maintain regular employment.
Despite his parole officer’s repeated requests, Hutchings never provided any proof that
he was actively seeking legitimate employment. Hutchings continuously told his parole
officer that he was close to getting a job or closing a complex financial deal. Yet he
never could provide substantive information to that effect, and none of the purported
financial deals came to fruition. Finally, Hutchings has not made even a minimal
restitution payment since July 23, 1997. Because the evidence demonstrates Hutchings
failed to make a good faith effort to seek employment, the Commission’s failure to

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conduct a preliminary interview on the willful failure to pay restitution charge was a
technical and nonprejudicial variance in the parole revocation proceedings.

                                    B. Jurisdiction

       Hutchings also claims that the Commission lacked jurisdiction to conduct the
parole revocation hearing because the maximum term of his sentence was to expire
January 4, 1999. Under 18 U.S.C. § 4210(b) (1999), the Commission has jurisdiction
over a parolee until the maximum term or terms for which he is sentenced expires.
However, jurisdiction may be extended where the parolee has “intentionally refused or
failed to respond to any reasonable request, order, summons, or warrant of the
Commission.” See § 4210(c).

       The Commission concluded that Hutchings willfully violated his restitution order.
Thus, under § 4210(c), the Commission’s jurisdiction extended for the period during
which Hutchings’ was in willful violation. Because Hutchings failed to comply with
his restitution order from July 1997 until his parole was revoked on January 19, 1999,
the Commission maintained jurisdiction over Hutchings for that period.

                                III. CONCLUSION

      We affirm the district court’s rulings that the Commission had jurisdiction to
conduct Hutchings’ parole revocation hearing and that Hutchings’ due process rights
were not violated when the Commission amended its warrant without conducting a
preliminary interview on the amended charge. Thus, Hutchings’ petition for a writ of
habeas corpus was properly denied.




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A true copy.

      Attest.

          CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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