Fowler v. U.S. Parole Com'n

• Decision Date: 17 September 1996
• Docket Number: No. 95-5226,95-5226
• Citation: 94 F.3d 835
• Parties: Kevin FOWLER, Appellant, v. UNITED STATES PAROLE COMMISSION, Appellee.
• Court: U.S. Court of Appeals — Third Circuit

Page 835

94 F.3d 835

Kevin FOWLER, Appellant, v. UNITED STATES PAROLE COMMISSION, Appellee.

No. 95-5226.

United States Court of Appeals Third Circuit.

Argued Feb. 8, 1996.

Decided Sept. 4, 1996.

As Amended Sept. 17, 1996.

Kenneth M. Tuccillo (argued), Holmdel, NJ, for Appellant Kevin Fowler.

Faith S. Hochberg, United States Attorney, James B. Clark, III (argued), Assistant U.S. Attorney, Clarkson S. Fisher, Trenton, NJ, Michael A. Stover (argued), General Counsel, United States Parole Commission, Chevy Chase, MD, for Appellee United States Parole Commission.

Before: BECKER, ROTH and McKEE, Circuit Judges.

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. § 2241. 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. §§ 2241 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). ¹

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). ² 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). ³ 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 508 U.S. 966, 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. ⁴

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, 107 S.Ct. 353, 357, 93 L.Ed.2d 216 (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...