Thomas v. Brennan

• Decision Date: 10 June 1992
• Docket Number: No. 91-1063,91-1063
• Citation: 961 F.2d 612
• Parties: Timothy THOMAS, Petitioner-Appellant, v. Edward BRENNAN, Warden, Federal Correctional Institution, Oxford, Wisconsin, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 612

961 F.2d 612

Timothy THOMAS, Petitioner-Appellant, v. Edward BRENNAN, Warden, Federal Correctional Institution, Oxford, Wisconsin, Respondent-Appellee.

No. 91-1063.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 6, 1991.

Decided April 7, 1992.

As Amended April 8, 1992.

Rehearing Denied June 10, 1992.

Keith A. Findley (argued), Office of the State Public Defender, Madison, Wis., for petitioner-appellant.

Christa A. Reisterer, Asst. U.S. Atty., Madison, Wis., Michael A. Stover (argued), U.S. Parole Com'n, Chevy Chase, Md., for respondent-appellee.

Before CUDAHY and FLAUM, Circuit Judges, and ROSZKOWSKI, Senior District Judge. ^*

FLAUM, Circuit Judge.

Petitioner Timothy Thomas is one of approximately 200 prisoners in federal custody serving "mixed sentences" for committing separate offenses under the United States Code and the District of Columbia Code. This case involves the interaction of federal and D.C. parole eligibility provisions as they apply to Thomas. The United States Parole Commission ("the Commission") attempted to accommodate both sets of provisions in an interim rule, 28 C.F.R § 2.66, applied in the present action to set Thomas' parole hearing for the D.C. portion of his sentence in 1995. Thomas challenged the Commission's determination in a suit under 28 U.S.C. § 2241, but the district court rejected his claims. Thomas v. Brennan, No. 88-C-583-S (W.D.Wis. Dec. 5, 1990) (Thomas II ). For the following reasons, we affirm in part and reverse in part.

I.

Thomas is currently housed in the Federal Correctional Institution at Oxford, Wisconsin. ¹ His aggregate prison term of 79 years, 9 months, and 18 days consists of three individual sentences, listed in order of imposition: (1) a 5-15 year sentence under the D.C.Code for armed robbery and assault with a deadly weapon; (2) a 35 year sentence under the U.S.Code, concurrent to the 5-15 year D.C.Code sentence, for armed bank robbery and kidnapping; and (3) a 13-40 year sentence under the D.C.Code, consecutive to the other terms, for armed robbery. We refer to his sentence as a "mixed sentence" because it is comprised of terms for both federal and D.C. crimes. Thomas' incarceration commenced on August 21, 1970. ²

Before proceeding to the facts of this case, we outline some rudimentary principles. Parole eligibility ³ for pre-Sentencing Guidelines federal sentences is governed by 18 U.S.C. § 4205(a) (1982), ⁴ under which a prisoner is eligible for parole after serving one-third of a sentence 30 years or less, or 10 years of a sentence greater than 30 years, "except to the extent otherwise provided by law." Consequently, were Thomas convicted only of his federal crimes, which carry a 35 year sentence, he would be eligible for parole after serving 10 years. Parole eligibility for D.C. sentences is governed by D.C.Code § 24-203(a), which provides that a prisoner is eligible for parole after serving the minimum sentence of a term. Thus, were Thomas sentenced only to the 13-40 year D.C. term for armed robbery, he would be eligible for parole in 13 years.

This is all very simple, but complications arise when D.C.Code offenders are housed in federal institutions. The D.C. Board of Parole has no jurisdiction over these prisoners because they are confined in federal facilities; however, D.C.Code § 24-209 gives the Commission "the same power and authority" as the D.C. Board of Parole would have had over such prisoners were they housed in a D.C. facility. See Johnson v. Williford, 821 F.2d 1279, 1284 (7th Cir.1987); Brewer v. Swinson, 837 F.2d 802, 805 (8th Cir.), vacated as moot, 837 F.2d 806 (8th Cir.1988). We previously interpreted § 24-209 to require the Commission to apply D.C. parole laws and regulations when making parole decisions for prisoners serving D.C. terms in federal prison. Johnson, 821 F.2d at 1288; Ashby-Bey v. Meese, 821 F.2d 1288 (7th Cir.1987); Sullivan v. Freeman, 944 F.2d 334, 338 (7th Cir.1991) (dicta); accord Brewer, 837 F.2d at 805; Walker v. Luther, 830 F.2d 1208, 1214-15 (2d Cir.1987). Thus, for example, were Thomas sentenced only to the 13-40 year D.C. term for armed robbery and housed in a federal prison, he would be eligible for parole in 13 years, and the Commission would be required to employ D.C. law to determine his parole suitability.

Matters are complicated further for federal inmates serving mixed sentences. It is undisputed that the separate D.C. and federal components of Thomas' mixed sentence must be "aggregated" for the purpose of calculating his parole eligibility date. See 54 Fed.Reg. 27841 (1989) (supplementary information for 28 C.F.R. § 2.66); Thomas II, slip op. at 7; see also Moss v. Clark, 886 F.2d 686, 692 (4th Cir.1989); Chatman-Bey v. Meese, 797 F.2d 987, 994 (D.C.Cir.1986), aff'd on reh'g, 864 F.2d 804 (D.C.Cir.1988) (en banc) (considering only jurisdictional issue). The critical issue here is how "aggregation" is to be accomplished. We observe at the outset that whatever "aggregation" means, it is partial rather than complete. If it were complete, the Commission would sum the D.C. and federal portions of a mixed sentence, and then apply only one set of parole regulations to the combined term. But that is not the way things work. Rather, the Commission must apply D.C. parole regulations to the D.C. portion of mixed sentences and federal parole regulations to the federal portion. See 28 C.F.R. § 2.66(b). The problem, given this regime, is how to accord due respect to both sets of parole provisions while at the same time treating the mixed sentence as an aggregate term.

This is easier said than done, as the facts of this case attest. The Commission initially determined that Thomas would first become eligible for parole on August 22, 1993, after serving 23 years in prison. It reached this result by adding together the minimum terms for each of his three individual sentences. The first sentence carried a minimum term of 5 years; the second, 10 years; and the third, 13 years. Since the first two sentences run concurrently, their combined minimum is 10 years; adding 13 years to that makes 23 years. Thomas challenged this determination, and the district court granted him relief, holding that his parole eligibility date should have been set at August 22, 1988, after he served 18 years. Thomas v. Brennan, No. 88-C-583-S (W.D.Wis. Aug. 23, 1988) (Thomas I ).

The court reasoned that the Commission's method of calculating Thomas' parole eligibility date was flawed because it would fluctuate according to the chronological order in which his individual federal and D.C. sentences were imposed. If, for example, the federal sentence were imposed third (after the two D.C. sentences) rather than second. Thomas' parole eligibility date would have been 18 years after his incarceration commenced rather than 23. The 5-15 year D.C. sentence, followed by the 13-40 year D.C. sentence, would leave a parole eligibility date of 18 years. The 35 year federal sentence would add 10 years to this but for 18 U.S.C. § 4205, which forbids the use of any federal sentence to extend a prisoner's parole eligibility date more than 10 years following the initiation of federal custody. Thomas I, slip op. at 3; see also Chatman-Bey, 797 F.2d at 989. Consequently, the federal sentence, if imposed last, falls out of the picture for purpose of determining the parole eligibility date, which, being based solely upon the two D.C. sentences, would remain 18 years. Put the federal sentence second, however, and the parole eligibility date is 23 years.

As a result of this potential disparity, Thomas I concluded that the Commission's method of calculating the parole eligibility date for mixed sentences was irrational. In its stead, the court essentially adopted the method employed by the D.C. Circuit in Chatman-Bey, 797 F.2d at 993-94: the parole eligibility date falls after the expiration of (1) one-third the aggregate term for terms less than 30 years, or (2) 10 years for aggregate terms 30 years or greater, unless the combined D.C. minimum sentence is greater than 10 years, in which case the date is the D.C. minimum sentence. Under this scheme, Thomas' aggregate sentence of 79-plus years mandates parole eligibility in 18 years (the combined minimum term of his two D.C. sentences), rather than 23 years as originally determined by the Commission.

Thomas I solved one part of the "aggregation" puzzle--setting Thomas' initial parole eligibility date. It left open, however, what the Commission was required to do on that date. That is the precise issue in the present case, to whose facts we now return.

II.

The Commission, as directed by Thomas I, conducted a parole hearing on November 16, 1988, retroactive to August 22, 1988. The hearing panel issued a recommendation, the Regional Commissioner rendered its decision, and Thomas appealed to the Commission's National Appeals Board, which vacated the Commissioner's decision. Subsequent to the vacatur, the Commission published regulations, codified at 28 C.F.R. § 2.66, governing parole eligibility and suitability for prisoners serving mixed sentences.

These regulations attempt to meld the federal and D.C. parole provisions through a three-step algorithm. The process commences on a prisoner's initial parole eligibility date, calculated in a manner prescribed by Chatman-Bey and applied in Thomas I. First, the Commission applies the federal parole guidelines, 28 C.F.R. § 2.20, to determine a parole suitability date for the federal portion of the sentence; the time between the initiation of custody and this date is called the prisoner's "federal time." The guidelines actually yield a range (much like the Sentencing Guidelines) from which the Commission may depart upward or downward. See 28 C.F.R. § 2.66(c)-(d). Second, the Commission calculates the combined minimum term of the D.C. offenses, id. § 2.66(e), and then determines under § 2.66(f) how much of that term should run...