                  UNITED STATES COURT OF APPEALS

                         FOR THE FIFTH CIRCUIT



                              No. 91-4340
                           Summary Calendar


KARL L. CANNON,
                                                      Petitioner,


                                versus


U.S. DEPARTMENT OF JUSTICE, UNITED
STATES PAROLE COMMISSION,
                                                      Respondent.




              Appeal from the Determination of the
                 United States Parole Commission

              (September 17, 1992)


                       On Petition for Rehearing

     (Opinion May 19, 1992, 5th Cir. 1992_____F.2d____)
Before POLITZ, Chief Judge, KING and EMILIO M. GARZA, Circuit
Judges.


POLITZ, Chief Judge:

     The United States Parole Commission seeks a rehearing, urging

that our panel decision erred in two separate respects:    (1) in

holding that the Commission rather than the Bureau of Prisons must

take into account foreign good-time credits in computing a release

date, and (2) in holding that U.S.S.G. § 5G1.1(b) applies when the
foreign-court-imposed sentence exceeds the guideline range.



                                 Discussion

          Although we deny the relief requested in the petition for

rehearing, we believe that this infrequently visited area of the

law would benefit from an explication of the interaction between

the       Constitution,1   Prisoner   Transfer   Treaty   (Treaty),2   the

Treaty-related legislation,3 other relevant legislation,4 federal

regulations for the Parole Commission and the Bureau of Prisons,5

other secondary interpretive sources,6 Treaty-prisoner case law,7

          1
              U.S. Const. art. VI, cl. 2.

      2
          Treaty on the Execution of Penal Sentences, November 26,
1976, United States -- Mexico 20 UST 7399; T.I.A.S. No. 8718.

          3
              18 U.S.C. §§ 3244, 4100-4115.

          4
          18 U.S.C. § 3624(a) (release of prisoners), 18 U.S.C.
§ 3624(b) (satisfactory behavior credits), 18 U.S.C. § 4161 (good
time credits) (repealed), and 18 U.S.C. §§ 4201-4218 (parole)
(repealed).

          5
          28 C.F.R. §§ 0.95-0.99, 500-572 (Bureau of Prisons),
28 C.F.R. §§ 0.124-0.127 (United States Parole Commission), and
28 C.R.R. §§ 2.1-2.66 (Parole Regulations).

      6
          H.R. Rep. 95-720, 95th Cong., lst Sess. 1977 reprinted in
1977 U.S.C.C.A.N. 3146 (although the Report discusses the pre-SRA
version of the Treaty-related legislation, it is nonetheless highly
persuasive).

      7
          Malin v. U.S. Parole Com'n, 901 F.2d 1112 (5th Cir. 1990)
(table) (unpublished opinion); Thorpe v. U.S. Parole Com'n, 902
F.2d 291 (5th Cir.), cert. denied, _____ U.S. _____, 111 S.Ct. 185,
112 L.Ed.2d 148 (1990); Hansen v. U.S. Parole Com'n, 904 F.2d 306

                                      2
and the distinction between pre-Sentencing Reform Act8 (SRA) parole

and post-SRA supervised release.



Treaty Provisions as the Supreme Law of the Land

     Relevant Treaty provisions include:

          Sentences imposed in the United Mexican States on
     nationals of the United States of America may be served
     in penal institutions or subject to the supervision of
     the authorities of the United States of America in
     accordance with the provisions of this Treaty.9

          The Transferring State shall furnish the Receiving
     State a statement showing the offense of which the
     offender was convicted, the duration of the sentence, the
     length of time already served by the prisoner and any
     credits to which the offender is entitled, such as, but
     not limited to, work done, good behavior or pretrial
     detainment.10

          Each Party . .        . shall establish adequate
     procedures, to give for    the purposes of this Treaty,
     legal effect, within       its territory to sentences
     pronounced by the courts   of the other Party.11

          The Transferring State shall afford an opportunity
     to the Receiving State . . . to verify, prior to
     transfer, that the offender's consent to the transfer is
     given voluntarily and with full knowledge of the


(5th Cir. 1990), cert. denied, _____ U.S. _____, 111 S.Ct. 765, 112
L.Ed.2d 784 (1991).

     8
          The Sentencing Reform Act of 1984, Title II of the
Comprehensive Crime Control Act of 1984, codified at 18 U.S.C.
§§ 3551 et seq.

     9
          Treaty, Article I(2) (emphasis ours).

     10
          Id., Article IV(7) (emphasis ours).

     11
          Id., Article IV(9).


                                   3
     consequences thereof. . . .12

          Except as otherwise provided in this Treaty, the
     completion of a transferred offender's sentence shall be
     carried out according to the laws and procedures of the
     Receiving State, including the application of any
     provisions for the reduction of the term of confinement
     by parole, conditional release or otherwise.13

          The Transferring State shall have exclusive
     jurisdiction over any proceedings, regardless of their
     form, intended to challenge, modify, or set aside
     sentences handed down by its courts.14

     Article VI of the United States Constitution provides in

pertinent part that a treaty shall be the supreme law of the land.

Courts construe Treaties just as they do statutes.15   These Treaty

provisions clearly and unequivocally direct that the total time

imposed in the foreign-court-imposed sentence shall be the sentence

of the Treaty prisoner upon transfer.16   A Commission proceeding

which sets a release date varying the total foreign-court-imposed

sentence would be a proceeding, albeit in the form of a release

    12
          Id., Article V(1), second sentence (emphasis ours). See
18 U.S.C. § 4108(b)(1) (verifying officer shall inquire as to
transferee's understanding and agreement that "only the [sentencing
court] may modify or set aside the conviction or sentence."). See,
also, Report at 25-26, 37, 41-44, reprinted in 1977 U.S.C.C.A.N. at
3148, 3159-3160, 3164-3166.

     13
          Id., Article V(2) (emphasis ours).

     14
          Id., Article VI, first sentence (emphasis ours).

     15
          See United States v. Alvarez-Machain, _____ U.S. _____,
112 S.Ct. 2188, 2193 (1992).

     16
          Report at at 41-43, reprinted in 1977 U.S.C.C.A.N. at
3164-3166.


                                4
date determination, which "modif[ies a] sentence handed down by

[the Mexican]      courts,"      contrary   to   Article   VI   and   18    U.S.C.

§ 3244(1).17 Consistent therewith, the Commission may not authorize

a release date which results in the total period of incarceration,

plus the period of supervised release, being less than or greater

than the total foreign-court-imposed sentence.

     In discussing the constitutionality of 18 U.S.C. § 3244,

Congress   recognized      the     sovereignty    issue    inherent    in    such

determinations:

     [N]either the United States nor any other country . . .
     would have acquiesced to a [Treaty] provision which would
     permit the courts of the Receiving State to set aside or
     modify a sentence imposed by the courts of the
     Transferring   State.       Otherwise   the   fundamental
     sovereignty of a nation over crimes committed within its
     territorial boundaries would be impaired. Report at 42,
     reprinted in 1977 U.S.C.C.A.N. at 3164-3165.

Treaty Article V(2) reinforces this conclusion, deeming applicable

the laws of the United States which provide for a "reduction of the

term of confinement by parole, conditional release or otherwise."

The in pari materia meaning of Articles V(2) and VI is clear and

unambiguous   --    the   term    of   confinement   may   be   determined     as


   17
          18 U.S.C. § 3244 is entitled "Jurisdiction of proceedings
relating to transferred offenders."

          When a treaty is in effect between the United States
     and a foreign country providing for the transfer of
     convicted offenders --

          (1) the country in which the offender was convicted
     shall have exclusive jurisdiction and competence over
     proceedings seeking to challenge, modify, or set aside
     convictions or sentences handed down by a court of such
     country; . . .


                                        5
permitted by United States law; therefore, only the sentencing

court may change the total sentence imposed, i.e. confinement plus

any conditional release.18      The prohibition against direct or

collateral attacks upon the sentence in any court except the

foreign sentencing court, however, does not otherwise preclude or

suspend the transferee's right to seek a writ of habeas corpus on

other matters related to the manner of execution of the sentence.19



Treaty-related Legislation20

     Absent clear and express congressional intent to the contrary,

Treaty-related legislation and regulations must be construed in

harmony with their source, the Treaty.   Other general legislation

and regulations which operate in tandem with the Treaty must also

be construed in light of and consistently with the Treaty.       The

relevant statutes and regulations include:

          Except as provided elsewhere in this section, an
     offender serving a sentence of imprisonment in a foreign
     country transferred to the custody of the Attorney
     General shall remain in the custody of the Attorney
     General under the same conditions and for the same period
     of time as an offender who has been committed to the
     custody of the Attorney General by a court of the United
     States for the period of time imposed by the sentencing



     18
          Inclusio    unius est exclusio alterius .       Treaty,
Article VI, first sentence.

     19
          Report   at   25-26, 27, 41-43, reprinted in 1977
U.S.C.C.A.N. at 3148, 3149-50, 3164-3166.

     20
          See Report, passim.


                                  6
     court.21

          (1) The transferred offender shall be entitled to
     all credits for good time, for labor, or any other credit
     toward the service of the sentence which had been given
     by the transferring country for the time served as of the
     time of transfer.     Subsequent to the transfer, the
     offender shall in addition be entitled to credits toward
     service of sentence for satisfactory behavior, computed
     on the basis of the time remaining to be served at the
     time of the transfer and at the rate provided in
     section 3424(b) of this title for a sentence of the
     length of the total sentence imposed and certified by the
     foreign authorities. These credits shall be combined to
     provide a release date for the offender pursuant to
     section 3624(a) of this title.22

          (1)(A) The United States Parole Commission shall,
     without unnecessary delay, determine a release date and
     a period and conditions of supervised release for an
     offender transferred to the United States to serve a
     sentence of imprisonment, as though the offender were
     convicted in a United States district court of a similar
     offense.
              (B) In making such determination, the United
     States Parole Commission shall consider --
               (i) any recommendation of the United
               States Probation Service, including
               any recommenda- tion as to the
               applicable guideline range; and
               (ii) any documents provided by the
               transferring country;
     relating to that offender.
              (C) The combined periods of imprisonment and
     supervised release that result from such determination
     shall not exceed the term of imprisonment imposed by the
     foreign court on that offender.23

     The Commission urges as controlling its interpretation of the

statutes relating to the respective roles of the Commission and the


     21
          18 U.S.C. § 4105(a).

     22
          18 U.S.C. § 4105(c)(1).

     23
          18 U.S.C. §§ 4106A(b)(1)(A)-(C).


                                 7
Bureau     of   Prisons    in     the       determination   of   a    post-SRA

Treaty-prisoner's release date.               The Commission suggests that

18 U.S.C. § 4106A only requires the Commission to determine a

discretionary release date and that it must do so without respect

to the 18 U.S.C. § 3624(b) satisfactory-behavior credit.                   The

Commission then posits that 18 U.S.C. § 4105 requires the Bureau of

Prisons to establish a mandatory release date which takes into

account the section 3624(b) credits as provided by section 3624(a).

     The    Commission    cites    no   controlling     authority    for   this

purported division of authority respecting determination of release

dates for a Treaty prisoner.        Contrary to the Commission's urging,

Malin is inapposite.      In dictum the Malin court acknowledged the

Commission's position that "the computation of good time credits is

the responsibility of the U.S. Bureau of Prisons.                    28 C.F.R.

§§ 0.96(h), 527.45(a)(2) (1989)."            This dictum is correct but only

for a pre-SRA prisoner.           The Malin dictum cites to parole and

good-time credit provisions which were repealed concurrently with

the enactment of the Sentencing Reform Act,24 none of which are

applicable to a post-SRA prisoner such as Malin.             Malin, however,

was eligible both for foreign credits under the Treaty and for the

satisfactory behavior credit under section 3624(b).

     Section 4106A(b)(1)(A) expressly obliges the Commission, and


     24
          Act of Oct. 12, 1984, P.L. 98-473, Title II, Ch. II,
§ 218(a)(4), 98 Stat. 2027, effective on the first day of the first
calendar month beginning 36 months after enactment as provided by
§ 235(a)(1) of such Act, as amended, which appears as 18 U.S.C.
§ 3551 note.


                                        8
not the Bureau of Prisons, to make the release date determination.

Section 4105(c)(1) requires that the release date include the

section      3624(b)       satisfactory-behavior            credits    as    computed    in

section 3624(a) but does not delegate the determination of the

release date to the Bureau of Prisons.                         We conclude that the

Commission's         argument      that     the    release     date    referred   to    in

section      4106A    is    not    the      same    release    date    referred    to    in

section 4105 lacks merit.25

       We    perceive       that      the     Commission       views    its    statutory

obligations toward Treaty prisoners as one similar to its pre-SRA

prisoner obligation to determine an initial, discretionary parole

date    in    conjunction         with      the    Bureau     of   Prison's    statutory

obligations to release a prisoner on his actual release date.26                          If

we are correct in this perception, the Commission misapprehends its

statutory      duty     under      the      Treaty-related         legislation.         The

Treaty-related          statute           commits      mandatory        release     date

determinations to the Commission. Consistent with that obligation,

the Commission has adopted a regulation for Treaty prisoners which

expressly      provides         for      permanent      retention       of    Commission

jurisdiction over release date determinations.

       The jurisdiction of the Parole Commission to set a
       release date and periods and conditions of supervised
       release extends until the transferee is released from
       prison or the transferee's case is otherwise transferred
       to a district court pursuant to an order of the

   25
              See 28 C.F.R. §§ 2.62(a)(2), (k) (1991), discussed infra.

       26
              See 28 C.F.R. § 0.96b (1991).


                                               9
       Commission.        28 C.F.R. § 2.62(a)(2).

Consistent      with      the   Commission's        retention    of    jurisdiction,

28 C.F.R. § 2.62(k) provides for reopening or modification of a

determination prior to transfer or termination of jurisdiction.

The Commission's argument that the Bureau of Prisons has authority

to make a release date determination for a Treaty prisoner is

inconsistent with its own regulation.                We accordingly reject it.

       The Commission states in its petition for rehearing that it

has recently adopted an interpretive regulation to which we should

defer.        This    revision    would      add    a   sentence      to   28   C.F.R.

§   2.62(a)(1)       providing    that      "U.S.    Code     provisions    requiring

mandatory minimum terms or minimum periods of supervised release

shall not apply to prisoners transferred pursuant to treaty who are

serving     terms    of    imprisonment      imposed     by    foreign     courts   for

violating foreign law."27         Although we are very dubitante that this

substantive regulation amending the guidelines as applied to Treaty

prisoners would withstand judicial scrutiny under our holding

herein, we need not reach that question.                Our research has revealed

that    the    Commission       did   not    promulgate       this    regulation     in

accordance with the law, and, hence, it has no legal effect.28

       We hold that section 4106A(b) requires the Commission to make

       27
          Memorandum from the Office of the Chairman of the U.S.
Parole Commission, dated May 29, 1992, subject matter -- Minutes -
U.S. Parole Commission's Open Business Meeting, April 28-30.

       28
         18 U.S.C. § 4201(6) (Substantive Commission regulations
shall be promulgated pursuant to 18 U.S.C. § 4203 and 5 U.S.C.
§ 553).


                                            10
a   timely,    mandatory       release     date    determination       and      that    the

jurisdiction     to     make    a   redetermination         in   light     of     changed

circumstances     remains       exclusively        with    the   Commission.29          Any

perceived inconvenience or difficulty with this scheme is more

appropriately addressed to the Congress.



Total Sentence Less than Foreign-Court-Imposed Sentence

      The     Commission       urges      that    the     language    of     18     U.S.C.

§ 4106A(b)(1)(C) which provides that "[t]he combined periods of

imprisonment      and    supervised         release       that   result      from      [the

Commission's]      determination           shall    not     exceed     the      term    of

imprisonment     imposed       by   the    foreign      court    on   that    offender"

authorizes a release date determination that results in a total

sentence which is less than the foreign-court-imposed sentence.

While we agree that the statute may be susceptible of such a

reading, when construed in light of the Treaty it becomes apparent

that section 4106A(b)(1)(C) is merely a codification of Treaty

Article V(3).     The statute does not address the issue of variation

of foreign-court-imposed sentence because Treaty Article VI and

18 U.S.C. § 3244(1)30 otherwise foreclose that issue and we cannot




     29
          Accord, 28 C.F.R. § 2.62(a)(2).                  See discussion infra at
note 25 and following.

      30
              Report    at     41-44, reprinted in 1977 U.S.C.C.A.N. at
3164-3166.


                                            11
construe the statute as contrary to the Treaty.31

      In Thorpe and Malin we affirmed Commission release date

computations which resulted in total sentences slightly less than

the   total   foreign-court-imposed      sentence.      In    doing    so    we

inadvertently erred in affirming inappropriate applications of

section    4106A(b)(a)(C).     In   neither   case,    however,       did   the

appellant challenge the Commission's legal authority to deviate

from the total sentence imposed by the Mexican courts.32                Those

cases are therefore inapposite and not controlling herein.



Will Cannon Now Spend an Extra Three Months in Prison?

      The Commission also suggests in its rehearing petition that

"as a result of this decision, [Cannon will] spend an extra three

months in     federal   prison."    In   reaching    this    conclusion     the

Commission evidences a fundamental misunderstanding of the meaning

of a guidelines range determination for a Treaty prisoner.                    A

guideline range determination is a starting point.           The Commission

has the power and the authority under the Treaty, Treaty-related

legislation, and the guidelines to set any release date from

incarceration as long as adequate reasons33 support the decision to

      31
          Lem Moon Sing v. United States, 158 U.S. 538, 15 S.Ct.
967, 39 L.Ed. 1082 (1895).

      32
          In Hansen, supra, we affirmed a Commission release date
computation that exactly matched the 84-month total sentence
imposed by the Mexican courts.

      33
          Williams v. United States, 503 U.S. _____, 112 S.Ct.
1112, 1118, 117 L.Ed.2d 341, 352 (1991).

                                    12
depart from the guideline range34 on the record, and the total of

the   term   of   incarceration    and      supervised      release    equals     the

foreign-court-imposed       sentence.          Therefore,     contrary     to     the

Commission's assertion, our panel decision need not increase by a

single day the term of incarceration served by Cannon or any other

Treaty     prisoner.       That   determination        is     and     remains     the

responsibility of the Commission.



Application of Pre-Transfer Credits

      We expressly hold, for sake of clarity, that any pre-transfer

credits applicable to a Treaty prisoner's term of incarceration,

including but not limited to work done, good behavior, or pretrial

confinement,35 shall be applied only to the original foreign-court-

imposed sentence by the Commission when making a release date

determination.         Having   done   this,    the   Commission      is   free    to

determine a release date as discussed above.



Harmless Error and Commission Release Date Determinations

      The guidelines apply to Treaty prisoners whose offense of




      34
          See U.S.S.G. § 5K2.0 (p.s.). See, also, U.S.S.G,
Chapter One - Introduction and General Principles, Part A, § 4(b)
Departures.

      35
             Treaty, Article IV(7).


                                       13
conviction occurred after November 1, 1987.36 In Williams v. United

States the Supreme Court held that an error in the application of

the guidelines need not result in a remand to the sentencing court

if the court of appeals determines that the same sentence would

have been imposed absent the error.

       We     have   not   previously     considered    the    applicability   of

Williams to a Commission release date determination.                We now hold

that the analysis of the Williams decision applies directly to a

Commission       release     date   determination       and,    therefore,     the

Commission release date determination may be reviewed for harmless

error.       In the case at bar, however, because we cannot ascertain

from the record whether the Commission properly determined Cannon's

release date in light of his potential section 3624(b) satisfactory

behavior credits, we cannot conclude that the error was harmless.

That    precipitated       our   remand   order   for   a   redetermination    of

Cannon's release date.



Application of U.S.S.G. § 5G1.1(b) to Commission Determination

       We begin this part of our discussion by recognizing that the

congressional decision to use the sentencing guidelines to direct

a Commission release date determination creates an imperfect fit at

best.       Nonetheless, Congress so chose and it is our constitutional

task to apply the guidelines in the manner which best comports with

that choice.


       36
               18 U.S.C. § 4106A(c); Hansen, 904 F.2d at 308.


                                          14
     In our original consideration of the application of U.S.S.G.

§ 5G1.1(b), we did not write on a tabula rasa.   Rather, we began by

considering our circuit precedent in Thorpe, and found it binding

and persuasive.   The Thorpe court held that in an instance in which

a Treaty prisoner had a foreign-court-imposed sentence of 84

months, where the guideline range computed to 151-188 months, the

Mexican court sentence would be deemed the statutory maximum

sentence under U.S.S.G. § 5G1.1(a).       Uniformity and stability

require that each panel of our court be bound by the decisions of

prior panels, absent an intervening en banc or Supreme Court

decision, or relevant legislation.37

     In the case at bar Cannon had a foreign-court-imposed sentence

of 84 months.   Were this an offense committed in the United States,

his guideline range would have been 51-63 months.     Following the

lead in Thorpe, we applied U.S.S.G. § 5G1.1(b) and deemed the

foreign-court-imposed sentence to be the statutory minimum.      On

rehearing, the Commission laments the fact that our holding will

require a prisoner whose guideline range "is less than the foreign

sentence . . . to serve their entire full sentence less good

time."38 This argument underscores the Commission's confusion about

its role under the Treaty and related legislation and the concept

of departure under the guidelines.


     37
          See Johnson v. McCotter, 804 F.2d 300 (5th Cir. 1986),
cert. denied, 481 U.S. 1042, 107 S.Ct. 1988, 95 L.Ed.2d 827 (1987).

     38
          Emphasis ours.


                                 15
       The Commission, consistent with Article V(2) of the Treaty,

may establish any release date that it deems appropriate under the

guidelines.39      The Commission's statutory mandate -- to employ the

guidelines to establish the release date "as though the offender

were convicted of a similar offense" --40 evinces the congressional

intent to assure the equal treatment of similarly situated Treaty

and        non-Treaty   prisoners    with   respect   to   the   term   of

incarceration.41 Nonetheless, the express terms of the Treaty limit

this congressional intent and the Commission is not free to vary

the total sentence of a Treaty prisoner.42

       Applying U.S.S.G. § 5G1.1(a) or (b) to establish the guideline

range is consonant with international comity considerations of

giving respect to the foreign-court-imposed sentence as expressly

provided for in the Treaty.         If the Commission determines that a

downward departure is warranted, the very fact that the guidelines

were not designed with Commission release date determinations for

Treaty prisoners in mind may, without more, support a departure.43

We also observe that by applying U.S.S.G. § 5G1.1(b), we avoid the

       39
               18 U.S.C. § 4106A(b)(1)(A); Hansen, 904 F.2d at 308.

       40
               18 U.S.C. § 4106A(b)(1)(A).

      41
               See Report at 36, reprinted in 1977 U.S.C.C.A.N. at 3159.

       42
          "Total" in         the    sense of time of incarceration and
supervised release.

       43
               U.S.S.G. § 5K2.0.


                                      16
potential confusion that        might arise if we did not follow the lead

of the Thorpe court.

      The Commission also complains in its petition for rehearing

that we     implicitly     modified    U.S.S.G.       §    5G1.1(b)   to    equate a

foreign-court-imposed         sentence    with    a       "sentence   required     by

statute."     It is well settled that a Treaty which operates of

itself without aid of legislation is the equivalent of an Act of

Congress.44     Treaty Article X(2) provides that the "treaty shall

enter into force thirty days after the exchange of ratifications.

. . ."45   Generally speaking, the Treaty-related legislation merely

provides a convenient codification of the already effective Treaty

provisions.46     Aside from the ministerial task of appointing an

"Authority" to receive transferred prisoners, the Treaty required

no   legislative     action    other     than    ratification.47           Procedural

legislation which makes operation of a Treaty more convenient

cannot amend or abrogate a self-executing Treaty.48                   Accordingly,

with respect to U.S.S.G. § 5G1.1, a foreign-court-imposed sentence

     44
            Fellows v. Blacksmith, 60 U.S. 366, 15 L.Ed. 684 (1857).

      45
            Treaty, Article X(2) (emphasis ours).

      46
            Accord, id., Article IV(9).

      47
            Report    at    25-26, reprinted in 1977 U.S.C.C.A.N. at
3147-3148.

      48
          Cook v. United States, 288 U.S. 102, 53 S.Ct. 305, 77
L.Ed. 641 (1933); Chew Heong v. United States, 112 U.S. 536, 5
S.Ct. 255, 28 L.Ed. 770 (1884).


                                         17
is in fact one imposed by the equivalent of an Act of Congress.



The Parade of Horribles

       Like Congress,49 we are mindful of the theoretical possibility

that a foreign court might impose a sentence upon a prisoner more

onerous than that imposed by our courts for the same or a similar

offense.        For example, a foreign court might impose a 50-year

sentence for an offense that would reap a five-year sentence under

our law.       If the offender were then transferred under the Treaty,

the Commission could set any guideline-supported release date for

that        prisoner,     including    immediate      supervised     release    if

appropriate.       The Treaty, however, would require that the offender

serve the remainder of the 50-year sentence on supervised release.

This    result     reflects     a     Treaty-imposed    limitation     upon    the

congressionally-created fiction that the Commission should treat a

Treaty prisoner's foreign sentence as one imposed by an American

court for the same or similar offense.                In the instance of this

theoretical "horrible," a true guideline sentence and a Treaty-

guideline sentence would undoubtedly differ.

       We observe that Cannon is not a victim of this theoretical

"horrible."         His    similar     offense   of    conviction,    21   U.S.C.

§ 841(b)(1)(B)(vii), with an offense level of 24, and a criminal

history category I, yielded a guideline range of 51-63 months of

incarceration. Guideline section 5D1.1(a) requires 36-60 months of


       49
               Report at 36, reprinted in 1977 U.S.C.C.A.N. at 3159.


                                         18
supervised release.       It is readily apparent, therefore, that the

Commission   could    fashion   a   release     date   determination       and

supervised release period so that Cannon's total foreign-court-

imposed   sentence   is    served   as   a   combination   of   a   term    of

incarceration and a term of supervised release.

     Regardless of what may be said of the result in the extreme

theoretical case which we have suggested above, as a court of law

we are bound by the Treaty.          If this theoretical "horror" is

perceived to be intolerable, it is a matter more appropriately

committed to our coequal branches to correct.



                                Conclusion

     For the reasons stated herein, the petition for rehearing is

DENIED.




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