Strong v. U.S. Parole Com'n
| Decision Date | 13 April 1998 |
| Docket Number | Docket No. 97-2171 |
| Parties | David STRONG, Petitioner-Appellee, v. U.S. PAROLE COMMISSION, Respondent-Appellant. |
| Court | U.S. Court of Appeals — Second Circuit |
Jennifer K. Brown, Assistant U.S. Attorney (Mary Jo White, U.S. Attorney for Southern District of New York, Steven M. Haber, Assistant U.S. Attorney, of counsel), New York City, for Respondent-Appellant.
Henriette D. Hoffman, New York City (The Legal Aid Society, Federal Defender Division, Appeals Bureau, of counsel), for Petitioner-Appellee.
Before: OAKES, KEARSE, and FRIEDMAN, * Circuit Judges.
The United States Parole Commission appeals from the decision of the United States District Court for the Southern District of New York, Shira Scheindlin, Judge, granting a writ of habeas corpus to appellee David Strong. The district court held that the Parole Commission had exceeded its authority by reimposing a special parole term, instead of regular parole, after the original special parole term had been revoked.
Affirmed.
The issue in this appeal is whether the Parole Commission may, after revoking an offender's special parole, impose a subsequent term of special parole in lieu of the full term of imprisonment or whether it may only impose regular parole.
Defendant-Appellee David Strong was convicted in 1982 of several narcotics and firearms violations. He was sentenced to twelve years in prison plus a five-year special parole term. Created in 1970, special parole was intended as a special sanction for drug offenders. See Statement of John Ingersoll, Narcotics Legislation: Hearings on S. 1895 et al. Before the Subcomm. to Investigate Juvenile Delinquency of the Senate Comm on the Judiciary, 91st Cong. 663, 676 (1969), quoted in Bifulco v. United States, 447 U.S. 381, 392, 100 S.Ct. 2247, 2254-55, 65 L.Ed.2d 205 (1980). It differs from regular parole in three respects: "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, if the conditions of special parole are violated, the parolee is returned to prison to serve the entire special parole term, and receives no credit for his time spent in non-custodial supervision, or "street time." Evans v. United States Parole Comm'n, 78 F.3d 262, 263 (7th Cir.1996).
Strong was released on regular parole from his twelve-year prison term in 1986. During his period of regular parole, Strong's parole was revoked twice for continued use of narcotics and failure to enter a drug treatment program. In 1993 he was paroled again and his term of special parole began on February 12, 1994. He was arrested for parole violations on May 6, 1994, and his special parole was revoked on August 31, 1994. The Parole Commission denied him credit for his three months of street time, and returned him to prison. Strong was re-paroled to special parole on February 23, 1996. Having served 21 months of his five-year special parole term in prison, he had 39 months remaining. On April 25, 1996, the probation office reported to the Parole Commission that Strong had tested positive for cocaine on April 9, 1996. The probation office stated that Strong had voluntarily admitted himself into a long-term drug treatment facility, and that if he left the facility early, a violator warrant would be issued for him.
On March 7, 1996, Strong filed a pro se writ of habeas corpus, arguing in part that the Parole Commission lacked authority to reimpose special parole after having revoked it. The district court (Shira Scheindlin, Judge ) granted the writ in part, finding that the Parole Commission lacked authority to re-parole Strong to special parole rather than regular parole once the special parole term had been revoked. 1 Strong v. United States Parole Comm'n, 952 F.Supp. 172 (S.D.N.Y.1997). The district court relied on this court's decision in United States v. Koehler, 973 F.2d 132 (2d Cir.1992), holding that the term "revoke" in the statute governing supervised release, 18 U.S.C. § 3583 (1988 ed.) (amended 1994), meant to cancel or rescind so that after revocation, a " 'term of supervised release no longer exists.' " Strong, 952 F.Supp. at 176 (quoting Koehler, 973 F.2d at 134-35). Pursuant to the district court's decision, the Parole Commission converted Strong's special parole term to a regular parole term on January 7, 1997.
The circuit courts are split over the question at issue in this appeal. Two circuit courts, the D.C. Circuit and the 8th Circuit, have held that the United States Parole Commission does have authority to reimpose a term of special rather than regular parole after revocation. See Billis v. United States, 83 F.3d 209 (8th Cir.1996) (per curiam); United States Parole Comm'n v. Williams, 54 F.3d 820 (D.C.Cir.1995). Four circuits have reached the opposite conclusion. See United States v. Robinson, 106 F.3d 610 (4th Cir.1997); Fowler v. United States Parole Comm'n, 94 F.3d 835 (3d Cir.1996); Evans v. United States Parole Comm'n, 78 F.3d 262 (7th Cir.1996); Artuso v. Hall, 74 F.3d 68 (5th Cir.1996). In addition to the decision of the district court, one other district court opinion in our circuit holds that the parole board may not reimpose special parole after it has been revoked. See Caldwell v. Spears, 973 F.Supp. 406 (S.D.N.Y.1997).
The statutory authority for revoking special parole is contained in former 21 U.S.C. § 841(c) (1982 ed.) (repealed 1984). Although this statute was repealed by the Sentencing Reform Act of 1984, it still governs convictions for offenses committed before November 1, 1987, as in this case. See Pub.L. No. 98-473, tit. II, § 224(a)(6), 98 Stat. 1837, 2030 (1984). Section 841(c) read A special parole term imposed under this section ... 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 or section 845 of this title shall be in addition to, and not in lieu of, any other parole provided for by law.
The Parole Commission, acting according to a specific grant of statutory authority, 18 U.S.C. § 4203(a)(1) (repealed), has promulgated regulations interpreting this section to allow the Parole Commission to re-parole to special parole. See 28 C.F.R. § 2.57(c) (1997).
In interpreting a statute, we begin with its text. See Kelly v. Robinson, 479 U.S. 36, 43, 107 S.Ct. 353, 357, 93 L.Ed.2d 216 (1986). The statute at issue provides for revocation of special parole if violated, resulting in a "new term of imprisonment." In construing a nearly identical statute governing supervised release, 18 U.S.C. § 3583(e)(3), 2 this Court held that the term "revoke" had the plain meaning of " 'to cancel or rescind.' " Koehler, 973 F.2d at 135 (quoting United States v. Holmes, 954 F.2d 270, 272 (5th Cir.1992)). Therefore, we found that a district court had no authority to reimpose a term of supervised release once the original term had been revoked. 3 Id. at 134-35. A majority of our sister circuits have also found that the absence of any specific grant of authority to reimpose supervised release under § 3583(e)(3) meant that Congress did not intend that courts have such authority once a supervised release term had been revoked. See, e.g., United States v. Malesic, 18 F.3d 205, 206-07 (3d Cir.1994); 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. Cooper, 962 F.2d 339, 341-42 (4th Cir.1992); Holmes, 954 F.2d at 271-73; United States v. Behnezhad, 907 F.2d 896, 898-99 (9th Cir.1990); 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 § 3583(e)(3) was enacted seventeen years after § 841(c), we find compelling reasons to interpret the two sections together. Indeed, almost every circuit court to address this issue has relied on a prior interpretation of § 3583(e)(3) in analyzing § 841(c). See, e.g., Robinson, 106 F.3d at 612; Billis, 83 F.3d at 211 (); Artuso, 74 F.3d at 71; but cf. Williams, 54 F.3d at 824 (). Under the Sentencing Reform Act of 1984, supervised release replaced special parole, and is similar in many ways except that supervised release is administered by the judicial branch and not the Parole Commission. Congress instituted the change by "substituting the words 'supervised release' for 'special parole' throughout the United States Code and adding new provisions governing the termination of supervised release by district courts." Evans, 78 F.3d at 264. The language of § 3583(e)(3) is substantially similar to § 841(c) in that Congress provides for "revocation" of a statutorily-created sentence without granting any explicit authority to reimpose that sentence. As the Sixth Circuit has noted,
While it is certainly undeniable that there are small variations in the way the two programs are handled, and in the entities which handle them, these are mere 'distinction[s] without a difference.' The Parole Commission is not able to point to differences between the two types of post-release supervision that would justify employing radically different definitions of the word 'revoke.'
Robinson, 106 F.3d at 612 (internal citation omitted)....
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