                                                                                                                           Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-4-1996

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Precedential or Non-Precedential:

Docket 95-5226




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"Fowler v. US Parole Comm" (1996). 1996 Decisions. Paper 66.
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           UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT



                    No. 95-5226




                   KEVIN FOWLER,

                                   Appellant
                                   v.

          UNITED STATES PAROLE COMMISSION,

                                   Appellee.



  APPEAL FROM THE UNITED STATES DISTRICT COURT
         FOR THE DISTRICT OF NEW JERSEY
          (D.C. Civ. No. 95-cv-00754)




             Argued: February 8, 1996
Before:   BECKER, ROTH and McKEE, Circuit Judges
             (Filed September 4, l996)




                      KENNETH M. TUCCILLO (ARGUED)
                      22 South Holmdel Road
                      Holmdel, NJ 07733

                      Counsel for Appellant
                      Kevin Fowler

                      FAITH S. HOCHBERG
                      United States Attorney

                      JAMES B. CLARK, III (ARGUED)
                      Assistant U.S. Attorney
                      Clarkson S. Fisher Courthouse
                      402 E. State Street, Room 502
                      Trenton, NJ 08608

                      MICHAEL A. STOVER (ARGUED)
                      General Counsel
                             United States Parole Commission
                             5550 Friendship Boulevard
                             Chevy Chase, MD 20815

                             Counsel for Appellee
                             United States Parole Commission




                       OPINION OF THE COURT




McKEE, Circuit Judge

     Defendant-appellant Kevin Fowler appeals from an order of the
United States District Court for the District of New Jersey denying
his petition for habeas corpus relief under 28 U.S.C.   2255. We
are asked to determine if the United States Parole Commission has
the authority to impose a new term of special parole under 21
U.S.C.   841(c) following revocation of his original special parole
term. We conclude that the Parole Commission does maintain
jurisdiction over Fowler under   841(c), but that the non-
incarcerative sanction that it can impose is not special parole,
but traditional parole. To the extent that the Parole Commission's
regulations at 28 C.F.R.    2.52(b) and 2.57(c) allow a contrary
result, we hold that they are inconsistent with   841(c).
Accordingly, we will vacate the judgment of the district court and
remand for further proceedings consistent with this opinion.

                                I.
     The facts of this case are not in dispute. On April 21, 1986,
defendant-appellant Kevin Fowler was sentenced by the United States
District Court for the Southern District of New York to a two-year
term of imprisonment for distributing narcotics within 1000 feet of
a school. The two-year sentence was to be followed by a six-year
term of special parole pursuant to 21 U.S.C.   841(c). Fowler was
subsequently released from incarceration and began serving his
special parole term on May 19, 1990.
     On April 23, 1992, the Parole Commission revoked Fowler's
special parole based upon his use of drugs, failure to report to
his probation officer, and violation of a special drug aftercare
condition. The Commission ordered that he receive no credit for
time spent on special parole, and that he serve twelve months prior
to reparole. The Commission later rescinded this requirement, and
instead required service of an additional three months because
appellant had escaped from a halfway house.
     Fowler was once again released from incarceration and placed
on special parole on February 17, 1993. He was to remain under
supervision until November 3, 1997. However, on November 16, 1993,
the Commission again revoked Fowler's special parole because of
continuing drug use, another violation of the drug aftercare
condition, and criminal possession of a controlled substance. The
Commission ordered that Fowler receive no credit for any of the
time he had spent on special parole and that he be reparoled after
serving thirty-two months in prison. The decision was affirmed by
the National Appeals Board.
     On November 2, 1994, Fowler filed a petition for a writ of
habeas corpus in the District of New Jersey. He argued that the
Parole Commission had no statutory authority under 21 U.S.C.
841(c) to impose a second or third term of special parole after it
had revoked the initial term in April 1992. Appellant's Brief at
4. On March 17, 1995, the district court ruled that the Commission
retained jurisdiction over Fowler after its initial revocation of
special parole, and denied Fowler's petition. This appeal
followed.
     We have jurisdiction pursuant to 28 U.S.C.    2255 and 1291.
Our standard of review is de novo. See e.g., United States v.
Cleary, 46 F.3d 307, 309-10 (3d Cir. 1995) ("The decision whether
to grant or deny a habeas corpus petition is reviewed de novo.").

                               II.
     21 U.S.C.   841(c) provides:
     A special parole term . . . may be revoked if
     its terms and conditions are violated. In such
     circumstances the original term of imprisonment
     shall be increased by the period of the special
     parole term and the resulting new term of
     imprisonment shall not be diminished by the time
     which was spent on special parole. A person whose
     special parole term has been revoked may be
     required to serve all or part of the remainder of
     the new term of imprisonment. A special parole
     term provided for in this section shall be in
     addition to, and not in lieu of, any other parole
     provided for by law.

21 U.S.C.   841(c) (repealed).
     The Courts of Appeals that have interpreted this statute have
disagreed about its meaning. In Evans v. United States Parole
Commission, 78 F.3d 262 (7th Cir. 1996) and Artuso v. Hall, 74 F.3d
68 (5th Cir. 1996), the Courts of Appeals for the Seventh and Fifth
Circuits concluded that the Parole Commission has no authority to
reimpose special parole after revoking a parolee's initial term.
In United States Parole Commission v. Williams, 54 F.3d 820 (D.C.
Cir. 1995) and Billis v. United States, 83 F.3d 209 (8th Cir.
1996), the Courts of Appeals for the District of Columbia and the
Eighth Circuits reached the opposite conclusion. For the reasons
set forth below, we agree with, and are guided by the reasoning of
Evans. We need not reiterate at length why the analysis in
Williams and its progeny is flawed. Rather, we find the analysis
in Evans, and its criticism of Williams, to be persuasive. See
Evans, 78 F.3d at 265-66.
     In concluding that successive terms of special parole would be
impermissible under   841(c), Evans and Artuso rely persuasively on
a line of cases interpreting a similar provision governing
supervised release, 18 U.S.C.   3583(e)(3). See Evans, 78 F.3d at
264; Artuso, 74 F.3d at 71.
     Subsection 3583(e)(3) authorized a court to "revoke a term of
supervised release, and require the person to serve in prison all
or part of the term of supervised release . . . without credit for
time previously served on postrelease supervision." 18 U.S.C.
3583(e)(3) (1988 & Supp. IV). In United States v. Holmes, 954
F.2d 270, 272 (5th Cir. 1992), the Fifth Circuit reasoned that the
word "revoke" in   3583 meant to "cancel or rescind," and therefore
provided courts with no authority to impose a second period of
supervised release after revoking the first term. In United States
v. Malesic, 18 F.3d 205, 206-207 (3d Cir. 1994), we agreed with the
reasoning set forth in Holmes. In Malesic, this Court stated that
"revoke generally means to . . . rescind." Malesic, 18 F.3d at 206
(citing, Holmes, 954 F.2d at 272). Once a term of supervised
release has been "revoked" under 18 U.S.C.   3583(e)(3), we
concluded that an additional term could not be imposed "given the
conspicuous absence of a statutory provision clearly permitting a
court to do so." Id. at 208. Several other Courts of Appeals
similarly interpreted the language of section 3583(e)(3), and
reached the same conclusion as to its effect. See United States v.
Koehler, 973 F.2d 132 (2d Cir. 1992); United States v. Cooper, 962
F.2d 339 (4th Cir. 1992); United States v. Truss, 4 F.3d 437 (6th
Cir. 1993); United States v. McGee, 981 F.2d 271 (7th Cir. 1992);
United States v. Behnezhad, 907 F.2d 896 (9th Cir. 1990); United
States v. Rockwell, 984 F.2d 1112 (10th Cir.), cert. denied __ U.S.
__, 113 S.Ct. 2945, 124 L.Ed.2d 693 (1993); United States v. Tatum,
998 F.2d 893 (11th Cir. 1993); but see United States v. O'Neil, 11
F.3d 292 (1st Cir. 1993); United States v. Schrader, 973 F.2d 623
(8th Cir. 1992).
     Although the Court of Appeals for the Ninth Circuit did not
explicitly rely on the word "revoke" in its analysis of
3583(e)(3), the Behnezhad court employed essentially the same
reasoning as Holmes and Malesic. The Ninth Circuit Court of
Appeals reasoned as follows:
     The government argues that it would be logical
     for a court to be able to revoke a term of
     supervised release, impose a term of incarceration
     and then impose another term of supervised release.
     . . . However, Congress has enacted an unambiguous
     statute that does not provide courts with that
     option. We would exceed our authority were we to
     judicially rewrite that legislation.

Behnezhad, 907 F.2d at 899. We believe the language of 21 U.S.C.
  841(c) requires a similar result.
     In the instant dispute, both Fowler and the Parole Commission
assume that our inquiry is bipolar. That is to say, they suggest
that if 21 U.S.C.   841(c) does not authorize the imposition of a
new term of special parole, the Commission loses jurisdiction over
the parolee when the original term of special parole is revoked.
However, we do not believe that our analysis is so constrained.
     The interpretation of any statute obviously begins with an
analysis of the text itself. Kelly v. Robinson, 479 U.S. 36, 43
(1986) ("The starting point in every case involving construction of
a statute is the language itself."). Thus, when Fowler's original
term of special parole was revoked, the statute dictated that the
     original term of imprisonment shall be
     increased by the period of the special parole
     term and the resulting new term of
     imprisonment shall not be diminished by the
     time which was spent on special parole. . . .
     A person whose special parole term has
     been revoked may be required to serve all
     or part of the remainder of the new term
     of imprisonment.

21 U.S.C.   841(c). Upon revocation, Congress has specifically
required a "new" term of imprisonment equal to the full term of
special parole. However, after resentencing, Congress has
expressly granted the Parole Commission authority to release a
special parole violator. The statute plainly states that a
violator such as Fowler "may be required to serve all or part of .
. . the new term of imprisonment." Id. Consequently, if a
sentencing court imposes a three year term of imprisonment, the
Commission may require that only two be spent in prison. The
Commission obviously does not lose control or jurisdiction over the
offender after the two years served behind bars.
     In Williams, the D.C. Circuit reasoned that   841(c) "mandates
a new prison term equal to the term of special parole . . . the
only open issue is whether the parolee must serve all of that term
behind bars, or may serve the term through a combination of
incarceration and special parole." Williams, 54 F.3d at 824. As
the Seventh Circuit observed in Evans, we believe that Williams
advances a "false dichotomy." Evans, 78 F.3d at 265. Upon
revocation,   841(c) clearly provides for the re-release of a
special parole violator and permits him or her to serve a sentence
of imprisonment on the street. The only unresolved question, in
our estimation, is the nature of that release. In answering that
question, it is helpful to consider the development of parole and
the differences between the parole that has been traditionally used
as a sanction, and the special parole that is involved in this
appeal.
     The first use of traditional parole in the United States came
in 1876 with the opening of the New York State Reformatory for
Juveniles in Elmira. See Neil P. Cohen & James J. Gobert, The Law
of Probation and Parole,   1.05 (1983 & Supp. 1993). The founders
of Elmira adopted a system of indeterminate sentences which, as its
final stage, provided for the conditional supervised release of
inmates. Id. Since that time, the practice of releasing
prisoners, on the condition that they abide by certain rules during
the balance of their sentences, "has become an integral part of the
penological system." Morrissey v. Brewer, 408 U.S. 471, 477
(1972). While on traditional parole, the "prisoner" is deemed to
be continuing to serve the original sentence imposed by the trial
court and remains in legal custody until that sentence expires even
though the offender is "at liberty" and not incarcerated behind
bars. If the parolee violates a condition of release, he or she
may be returned to prison for the unexpired term of imprisonment.
In such a case, the "unexpired" term would be the original term of
imprisonment reduced by time served and the time the defendant
spent on the street before the violation. The credit for "street
time" is the natural consequence of the concept that a parolee
serves his or her time "on the street." See Evans, 78 F.3d at 263.
Thus, traditional parole is merely "a conditional release from
incarceration . . . prior to the expiration of the full term set by
the sentencing court." Parry v. Rosemeyer, 64 F.3d 110, 116 n.10
(3d Cir. 1995) (citing Roberts v. United States, 491 F.2d 1236,
1238 (3d Cir. 1974)). It is a part of a sentence of imprisonment,
and has historically been a mechanism whereby one could be released
yet continue to serve the sentence -- so long as the parolee
complied with those rules of society that were a condition of
parole. See Morrissey, 408 U.S. at 477.
     In stark contrast, special parole is a statutory creation
imposed in addition to any term of years. It is applied to
offenders by a sentencing court only pursuant to a specific grant
of authority from Congress. See Parry, 64 F.3d at 116-117;
Roberts, 491 F.2d at 1237-1238. As the court noted in Evans:

          Three things are 'special' about special
          parole: first, special parole follows the term
          of imprisonment, while regular parole entails
          release before the end of the term; second
          special parole was imposed and its length
          selected, by the district judge rather than by
          the Parole Commission; third, when special
          parole is revoked, its full length becomes a
          term of imprisonment. In other words 'street
          time' does not count toward completion of
          special parole . . . . This third difference
          is a consequence of 21 U.S.C. (1982 ed.)
          841(c) . . . .
78 F.3d at 263. See also Bell v. United States, 521 F.2d 713, 715
(4th Cir. 1975) ("The mandatory special parole term imposed by the
1970 Act is unique. It is in addition to any other parole,
remaining in effect after the original prison sentence has been
served and the period of regular parole has expired . . . . Since
the statute prescribes no maximum special parole term, the
additional prison sentence may be lengthy.")
     Just as 18 U.S.C.   3583(e)(3) did not provide for the
imposition of a post-revocation term of supervised release, section
841(c) does not provide for a new term of special parole following
revocation. Rather, the non-incarcerative custody authorized by
841(c) is part of the sentence of imprisonment mandated upon the
revocation of special parole; it is not in addition to it. Thus,
it is traditional parole. Nowhere in    841(c) has Congress vested
a district judge or the Parole Commission with the authority to
reimpose a special parole term.
     The Parole Commission downplays this clear absence of
statutory authorization by arguing that "it has always been
understood [under pre-Guidelines law] . . . that somebody who has
had their special parole revoked, could be placed on another term
of special parole." (Tr. at 21-22). In support of this
proposition, the government directs this Court to language in
United States v. Gozlon-Peretz, 894 F.2d at 1402, 1405 n.5 (3d Cir.
1990), aff'd, 498 U.S. 395, 111 S.Ct. 840, 112 L.Ed.2d 919 (1991)
and Williams. In Gozlon-Peretz, we stated, in dicta, that "upon
revocation of special parole, an individual may be re-paroled."
Id. at 1405, n.5. Similarly, in Williams, the court referred to
          the common pre-Sentencing Guidelines
          understanding . . . that parole violators
          could be reparoled pursuant to   841(c). This
          much followed from the established pre-
          Guidelines sentencing principle that 'parole
          is available unless expressly precluded.'
          (quoting United States v. Mudd, 817 F.2d 840,
          843 (D.C. Cir. 1987))

54 F.3d at 825. We agree. However, the issue is not the
availability of parole under   841(c), but the nature of the parole
that is specifically contemplated by that statute.
     Far from endorsing the reimposition of special parole, the
statements from Gozlon-Peretz and Williams confirm our present
understanding, that the parole that is imposed after special parole
is revoked can only be traditional parole. As we stated above,
841(c) leaves no doubt that special parole violators are eligible
for some period of release on their new term of imprisonment. In
the absence of statutory authority, however,   841(c) provides no
basis for characterizing that period of release as special parole.
To the contrary, because the statute allows violators to serve at
least a portion of their time on the street, such release is
identical to traditional parole. Consequently, despite its
asserted prevalence, any pre-guidelines approach condoning the
post-revocation imposition of special parole, is without foundation
in the controlling statute. Although general acceptance of a
practice must be considered in any reasoned analysis, a practice
bottomed upon an erroneous interpretation of the law is not
legitimized merely by repetition.
     The Parole Commission further argues that its regulations are
entitled to deference, and that those regulations authorize a new
term of special parole following revocation of the initial term.
28 C.F.R.   2.57(c) provides, in part:
     Should a parolee violate conditions of release during the
     Special Parole Term he will be subject to revocation on the
     Special Parole Term . . . and subject to reparole or
     mandatory release under the Special Parole Term.

28 C.F.R.   2.52(b) states:

     If parole is revoked . . . the Commission shall also
     determine . . . whether reparole is warranted or whether
     the prisoner should be continued for further review.
     The Parole Commission promulgated these regulations pursuant
to a specific grant of statutory authority. We are, of course,
mindful of the deference that is due the Parole Commission's
interpretation of   841(c) and the regulations it has promulgated
pursuant to 18 U.S.C.   4203. See Chevron v. Natural Resources
Defense Council, 467 U.S. 837, 842-43 (1984). We owe no deference,
however, to administrative interpretations or regulations that are
based upon an impermissible construction of the statute. Id.; see
also, Sekula v. FDIC, 39 F.3d 448, 452 (3d Cir. 1994). Indeed,
such a regulation or interpretation is invalid.
     Section 841(c) is not so ambiguous as to allow the
interpretation urged upon us by the Government. See BATF v. FLRA,
464 U.S. 89, 97 (1983) ("[Deference] cannot be allowed to slip into
a judicial inertia . . ."). No statutory authority exists for a
second term of special parole after the initial term has been
revoked. Rather, Congress has merely authorized a new term of
imprisonment which can include noncustodial supervision.
Therefore, early release from that term of incarceration is parole
as that sanction has traditionally been used in criminal law.
Moreover, in merely authorizing "reparole", the Commission's
regulations are not to the contrary. Those regulations do not
suggest that any new term of parole should be characterized as
special parole rather than traditional parole. To the extent that
the Parole Commission's regulations at 28 C.F.R.    2.52(b) and
2.57(c) are interpreted to authorize the reimposition of special
parole, they are in conflict with   841(c). Where such a conflict
exists "the regulations must, of course, give way." McComb v.
Wambaugh, 934 F.2d 474, 481 (3d Cir. 1991).
     Finally, we note that Congress has amended the supervised
release statute to grant sentencing courts explicit authority to
impose post-revocation terms of supervised release. See 18 U.S.C.
  3583(h) (1994). The Parole Commission suggests that    3583(h)
must also reflect congressional intent with respect to the
operation of special parole. However, we must presume that "a
legislature says in a statute what it means and means . . . what it
says." Connecticut Nat'l Bank v. Germain, 503 U.S. 1146, 1149
(1992). Since section 841(c) provides no basis for reimposing
special parole, we will not rely upon the amendment of   3583 to
force a construction on section 841(c) that is contrary to the
plain language of the statute.

                               III.
     For the foregoing reasons, we will vacate the judgment of the
district court and remand the case to the district court with
instructions to grant a conditional writ of habeas corpus. The
district court will then remand to the Parole Commission for
further proceedings consistent with this opinion. If the Parole
Commission determines that Fowler's maximum period of supervision
(with credit for any street time he may have earned following
revocation of his term of special parole) has not expired, the
Commission may determine if it wishes to impose any additional term
of traditional parole. In the event that the Commission determines
that Fowler's maximum period of supervision has expired, or that it
does not wish to impose any further traditional parole, Fowler must
be released from custody.
