Lyons v. Mendez

• Decision Date: 09 September 2002
• Docket Number: No. 00-2822.,00-2822.
• Citation: 303 F.3d 285
• Parties: James LYONS, Appellant v. Jake MENDEZ, Warden; US Parole Commission
• Court: U.S. Court of Appeals — Third Circuit

303 F.3d 285

James LYONS, Appellant v. Jake MENDEZ, Warden; US Parole Commission

No. 00-2822.

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit LAR 34.1(a) March 12, 2002.

Filed September 9, 2002.

James Lyons, White Deer, PA, pro se.

Martin C. Carlson, United States Attorney, Mary Catherine Frye, Assistant U.S. Attorney, Harrisburg, PA, for Appellee.

Before: ALITO, ROTH and FUENTES, Circuit Judges.

OPINION OF THE COURT

PER CURIAM:

James Lyons appeals pro se from the District Court order denying his petition for a writ of habeas corpus. He claims that the Parole Commission improperly postponed his release date beyond the guideline range by relying on a 1987 amendment to the Sentencing Reform Act ("SRA") that authorized upward departures but that such departures were not authorized when Lyons committed his crimes in 1986. Lyons argues that this 1987 amendment operates as an ex post facto law and is therefore unconstitutional as applied to him. We agree with Lyons's ex post facto argument and therefore reverse.

I.

Lyons committed narcotics-trafficking and related firearm offenses in 1986. Soon thereafter, he was convicted and sentenced to an aggregate prison term of 40 years. In 1996, after serving more than ten years of his sentence, Lyons had an initial parole hearing. The Parole Commission determined that under the applicable guideline, Lyons would normally be eligible for parole after serving 100-148 months, i.e., no later than August 1998. However, the Commission determined that a parole eligibility date outside the guideline range was warranted because of Lyons's "history of possessing/using weapons and violence." (Exhibit 4 to the Response to Show Cause Order, filed in the District Court at Dkt. # 18). In postponing Lyons's eligibility date, the Commission apparently relied on 18 U.S.C. § 4206(c), which authorized the Commission to set release dates outside the guideline range for "good cause." Finding good cause, the Commission continued Lyons's incarceration until a mandatory release date in July 2009, more than ten years beyond the maximum term in his parole guideline range. The Commission reaffirmed its decision after a hearing in 1998.

In 1998, after serving 151 months of his prison term, Lyons filed a petition for a writ of habeas corpus in federal district court pursuant to 28 U.S.C. § 2241. He raised two challenges to the departure from his guideline range pursuant to the 1987 amendment: first, that application of this amendment violated the constitutional prohibition against ex post facto laws and, second, that it exceeded Congress's authority under the separation-of-powers doctrine. The District Court rejected both his ex post facto and separation-of-powers arguments. It accordingly denied Lyons's petition for habeas relief. This appeal followed.

II.

Lyons bases his claim to habeas relief primarily on the ex post facto clause of the United States Constitution.¹ See U.S. Const. Art. 1, § 9 ("No ... ex post facto Law shall be passed."). This clause forbids Congress from enacting any law "which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed." Weaver v. Graham, 450 U.S. 24, 28, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981) (emphasis added). The test for finding a criminal law to be ex post facto contains two elements.² First, the law must be retrospective, applying to events prior to its enactment; and second, it must disadvantage the offender affected by it. See id. at 29, 101 S.Ct. 960.

As to the first element, the 1987 amendment to § 235(b)(3) is clearly retrospective. The parole transition sections to which § 235(b)(3) belongs apply to offenses committed before the SRA's effective date. See Tripati v. U.S. Parole Commission, 872 F.2d 328, 330 (9th Cir.1989) (1987 amendment is retrospective); Lightsey v. Kastner, 846 F.2d 329, 333 (5th Cir.1988) (same). The second element — whether Lyons was disadvantaged by the 1987 amendment — depends upon a determination of the law in effect in 1986, when Lyons committed his crimes. The original § 235(b)(3) required that parole release dates be set within the guideline range,³ whereas both before⁴ and after⁵ this original provision was in effect, the Commission was authorized to set dates outside of the guideline range. This determination, in turn, depends upon the answer to the following deceptively simple question: on what date did the SRA's original § 235(b)(3) take effect?

Lyons argues that the original § 235(b)(3) took effect upon enactment in 1984. The government argues that it did not take effect until November 1, 1987. If, as Lyons argues, the law in effect in 1986 was the original § 235(b)(3), requiring dates within the guideline range, then Lyons was clearly disadvantaged when the Commission relied on the 1987 amendment to postpone his release over ten years beyond the guideline's maximum of 148 months. But if, as the government argues, the original § 235(b)(3) was not yet in effect when Lyons committed his crimes, then the Commission was still authorized to go outside the range. Thus, when the 1987 amendment simply restored that authority, Lyons's punishment was no greater than when he committed his crimes, and therefore he was not "disadvantaged."

We agree with Lyons that the original § 235(b)(3) took effect upon enactment and thus the 1987 amendment operated as an ex post facto law when it was applied to postpone his release date beyond his maximum guideline range of 148 months. We therefore find the amended § 235(b)(3) unconstitutional as applied to Lyons.

A.

Our analysis of the effective date begins with the text of the statute. The Sentencing Reform Act ("SRA") was enacted as Chapter II of the multi-faceted Comprehensive Crime Control Act ("CCCA"). See Pub.L. 98-473, 98 Stat. 1837, 1987 (1984). The SRA's purpose was to replace "a system of indeterminate sentences and the possibility of parole with determinate sentencing and no parole." Walden v. U.S. Parole Commission, 114 F.3d 1136, 1138 (11th Cir.1997). Because the CCCA contained no effective-date provision governing the entire statute, the CCCA itself became effective upon enactment on October 12, 1984. See United States v. Shaffer, 789 F.2d 682, 686-87 (9th Cir.1986). Section 235 of the CCCA, located within the SRA chapter, bore the title "Effective Date." It provided a uniform effective date for most provisions of the SRA, specified certain exceptions to that uniform date, and contained special provisions concerning the transition to the new sentencing system. See Romano v. Luther, 816 F.2d 832, 835 (2d Cir.1987). Under § 235(a)(1), this uniform effective date was governed by a time-delay mechanism, triggered by the CCCA's date of enactment. See Pub.L. No. 99-217, § 4, 99 Stat. 1728 (1985) (amending the mechanism from a 24-month delay to a 36-month delay). In short, because the CCCA was enacted on October 12, 1984, at least most of the SRA became effective on November 1, 1987. Unfortunately, § 235 made no mention of the effective date of that entire section or of its subsection 5(b)(3).

B.

With this framework in mind, we turn to the interpretations of the courts. In this circuit, the contention that § 235(b)(3) took effect upon enactment of the SRA is a matter of first impression.⁶ We have not yet faced a petitioner like Lyons: his release date hinges on our determination of when § 235(b)(3) went into effect, because he committed his crimes after the provision's enactment in 1984 but before its amendment in 1987, and he was still in the Commission's jurisdiction when the statute's five-year transition period ended. The petitioner in United States ex rel. D'Agostino v. Keohane, 877 F.2d 1167 (3d Cir.1989), claimed the benefit of the original § 235(b)(3); but unlike Lyons, D'Agostino committed his crimes in the 1970's, long before the SRA was even enacted, so our holding against D'Agostino could not have implicated the issue before us, i.e., whether § 235(b)(3) took effect in 1984 or 1987.

We acknowledge that in United States v. Martinez-Zayas, 857 F.2d 122 (3d Cir.1988), in discussing whether we had appellate jurisdiction under 18 U.S.C. § 3742 (1986 Supp.), we stated that "Congress determined that § 3742 and the other provisions in its new sentencing law would be effective November 1, 1987." Id. at 126 (emphasis added). We do not construe this statement as binding upon our inquiry into the effective date of § 235(b)(3). As we noted above, most of the SRA provisions took effect on November 1, 1987, but § 235 contained explicit exceptions, so our phrase "and the other provisions" in Martinez-Zayas was both overbroad and dictum. The only SRA provision before us then was § 3742 (conferring appellate jurisdiction over sentences imposed in violation of law) and its effective date. No other provisions of the SRA, including § 235(b)(3), related to that decision.

Similarly, in another indirectly related matter — concerning the question whether the SRA also applies to offenses committed before its effective date — we noted that Congress amended § 235(a)(1) of the SRA to clarify that the SRA applies "only to offenses committed after" November 1, 1987. Gallardo v. Quinlan, 874 F.2d 186, 188 (3d Cir.1989). However, as the Seventh Circuit has noted, in making that clarification, Congress cannot have been referring to those parts of the SRA that concern parole transition because defendants committing offenses after November 1, 1987, were not subject to parole. See Norwood v. Brennan, 891 F.2d 179, 181 (7th Cir.1989). If the parole transition provisions were applicable only to offenses committed after November 1, 1987, they would not apply to anyone. See id. Thus, our statement in Gallardo cannot be reasonably construed to encompass the parole transition provision before us in this case, § 235(b)(3).

C.

With no controlling precedent on point to guide us, we survey the...