UNITED STATES PAROLE COMMISSION v. NOBLE, 96-SP-578

• Decision Date: 17 April 1997
• Docket Number: No. 96-SP-578,96-SP-578
• Citation: 693 A.2d 1084
• Parties: UNITED STATES PAROLE COMMISSION, Appellant, v. Matthew NOBLE, Appellee.
• Court: D.C. Court of Appeals

693 A.2d 1084

UNITED STATES PAROLE COMMISSION, Appellant, v. Matthew NOBLE, Appellee.

No. 96-SP-578.

District of Columbia Court of Appeals.

Argued December 4, 1996.

Decided April 17, 1997.

APPEAL FROM THE DISTRICT COURT, SPORKIN, J.

Elizabeth H. Danello, Assistant United States Attorney, with whom Eric H. Holder, Jr., United States Attorney, and John R. Fisher, Thomas J. Tourish, Jr., and John M. Facciola, Assistant United States Attorneys, were on the brief, for appellant.

Beverly G. Dyer, Assistant Federal Public Defender, with whom A.J. Kramer, Federal Public Defender, was on the brief, for appellee.

Mary L. Wilson, Assistant CorporationCounsel, with whom Charles F.C. Ruff, CorporationCounsel at the time the brief was filed, and Charles L. Reischel, Deputy CorporationCounsel, were on the brief, for the District of Columbia as amicus curiae.

Before FERREN and SCHWELB, Associate Judges, and PRYOR, Senior Judge.

FERREN, Associate Judge:

The United States Court of Appeals for the District of Columbia Circuit has certified to this court, pursuant to D.C. Code § 11-723(1995 Repl.), the following question:

Under District of Columbia law, given the facts described below, did the United States Parole Commission properly interpret sections 24-206(a)and24-431(a) of the District of Columbia Code in deciding that, after revocation of a person's parole, time that the person spent on parole before revocation cannot be credited against his sentence?

Noble v. United States Parole Comm'n,317 U.S.App. D.C. 304, 305, 82 F.3d 1108, 1109(1996)(Noble II).We answer the question in the affirmative.

I.

Most of the relevant history is set forth in Noble v. United States Parole Commission,887 F. Supp. 11(D.D.C.1995)(Noble I).¹On December 5, 1978, Matthew Noble was convicted in the United States District Court for the District of Columbia of unlawful distribution of a controlled substance, 21 U.S.C. § 841(a)(1994).SeeNoble I,887 F. Supp. at 11.The judge placed him on probation for three years.Seeid. at 11.According to the Commission's brief, while on probation Noble tested positive for opiates and preludin, missed several scheduled appointments, and was rearrested for a misdemeanor drug offense.On May 18, 1981, the district judge revoked Noble's probation and sentenced him to imprisonment in a federal facility for a year and a day.Seeid.The judge also ordered that, after Noble served his sentence, he was to serve a special parole term of two years.Seeid.On December 18, 1981, Noble was released on parole.Seeid.

While Noble was on parole, he was convicted in the Superior Court of distribution of a controlled substance, D.C. Code § 33-541(a)(1993 Repl.).According to Noble's brief, on November 15, 1982, he was sentenced to imprisonment for a period of one to three years and again was incarcerated in a federal institution.²In addition, the United StatesParole Commission revoked Noble's special parole term which had been imposed in May 1981 for his federal violation.The federal parole authorities do not credit defendants for time spent on parole ("street time") when a special parole term is revoked, see21 U.S.C. § 841(c)(1982),³ and it would appear that Noble accordingly forfeited the time he already had spent on parole for his federal offense.

On September 21, 1984, Noble was released on parole once again.While on parole, however, he was convicted in the Superior Court of the District of Columbia of unlawful distribution of a controlled substance, D.C. Code § 33-541(1993 Repl.).SeeNoble I,887 F. Supp. at 12.On September 13, 1985, Noble was sentenced to serve a prison term of two and one-half years to seven and one-half years.Seeid. at 12.In conformity with 18 U.S.C. § 4161, 4205 (1994), the United States Bureau of Prisons aggregated Noble's District of Columbia sentence and the remainder of his federal parole term to a total prison sentence of 110 months and seven days.SeeNoble I,887 F. Supp. at 12.Ninety months of this aggregate term represented Noble's local District of Columbia sentence.Seeid.

In March 1988, Noble again was released on parole.Seeid.Although most of his remaining sentence pertained to a District of Columbia offense, he was paroled from a federal institution under supervision of the United States Parole Commission.Seeid. at 12 n. 2.Noble remained on parole for more than five years, but in May 1993 a controlled substance was detected in his urine.⁴Seeid. at 12.On December 1, 1993, the Commission again revoked Noble's parole.The Commission refused to credit Noble for the "street time"he had served on parole for the District of Columbia offense before parole was revoked.Seeid.Noble was returned to prison, with a new "full term expiration date" of February 21, 1999.Seeid.Finally, on October 7, 1994, with 1,597 days remaining on his sentence, Noble was released on parole once again.Seeid.

On January 27, 1995, pursuant to 28 U.S.C. § 2241(1994), Noble filed a petition for a writ of habeas corpus in the United States District Court for the District of Columbia.Naming the Commission as the sole respondent, Noble alleged that by denying him credit for 1,479 days which he had served on parole on his District of Columbia sentence, the Commission had violated D.C. Code § 24-431(a)(1996 Repl.).Judge Sporkin granted Noble's petition, concluding that § 24-431(a) authorizes credit for street time even when a prisoner's parole has been revoked.SeeNoble I,887 F. Supp. at 13-14.

The Commission filed a timely notice of appeal from Judge Sporkin's order, and, on May 3, 1996, as noted earlier, the United States Court of Appeals certified to this court the controlling question of District of Columbia law.SeeNoble II,317 U.S.App. D.C. at 305, 82 F.3d at 1109.After receiving comprehensive briefs and hearing oral argument — including a brief and argument from the District of Columbia as amicus curiae in support of Noble's position — we conclude that the district judge erred.The only basis for ruling that D.C. Code § 24-431(a) preserves a prisoner's "street time" as a credit against the sentence in the event parole is revoked is to say that § 24-431(a) impliedlyrepealed D.C. Code § 24-206(a), which expressly provides to the contrary.We do not believe that Noble and the District have made the case for implied repeal.

II.

A.

The two statutes at issue, enacted fifty-five years apart,⁵ arguably have inconsistent provisions.The more recent one, D.C. Code § 24-431(a), provides that "[e]very person" shall be given credit toward service of required imprisonment "for time spent in custody or on parole."(Emphasis added.)The older statute, D.C. Code § 24-206(a), provides that if parole is revoked, the "time a prisoner was on parole shall not be taken into account to diminish the time for which he[or she] was sentenced."(Emphasis added.)We therefore must construe the statutes, initially, as though the different legislatures enacted them together:

The correct rule of interpretation is, that if divers statutes relate to the same thing, they ought all to be taken into consideration in construing any one of them, and it is an established rule of law, that all acts in pari materia are to be taken together, as if they were one law.

United States v. Freeman,44 U.S. (3 How.) 556, 564-65, 11 L.Ed. 724(1845)(citation omitted);accordHolt v. United States,565 A.2d 970, 975(D.C.1989)(noting that statutory provisions having same purpose or subject matter are in pari materia and should be construed together).

In construing § 24-206(a)and§ 24-431(a) together, we must keep in mind that "[r]epeals by implication are not favored."Luck v. District of Columbia,617 A.2d 509, 514(D.C.1992)."When there are two acts upon the same subject, the rule is to give effect to both if possible."United States v. Borden Co.,308 U.S. 188, 198, 60 S.Ct. 182, 188, 84 L.Ed. 181(1939).Indeed, "[i]n the absence of some affirmative showing of an intention to repeal, the only permissible justification for a repeal by implication is [that] the earlier and later statutes are irreconcilable."Morton v. Mancari,417 U.S. 535, 550, 94 S.Ct. 2474, 2482, 41 L.Ed.2d 290(1974);accordPosadas v. National City Bank,296 U.S. 497, 503, 56 S.Ct. 349, 352, 80 L.Ed. 351(1936)(noting that "where provisions in the two acts are in irreconcilable conflict, the later act to the extent of the conflict constitutes an implied repeal of the earlier one");Speyer v. Barry,588 A.2d 1147, 1163(D.C.1991)(noting that "courts choose the specific statute over the general one only if the two cannot be harmonized, and not otherwise").

More specifically, in evaluating whether there has been an implied repeal, we must determine whether " 'the intention of the legislature to repeal [is] clear and manifest.' "Speyer,588 A.2d at 1165(quotingKremer v. Chemical Constr. Corp.,456 U.S. 461, 468, 102 S.Ct. 1883, 1890, 72 L.Ed.2d 262(1982))(emphasis removed)."[W]hen two statutes are capable of co-existence it is the duty of the courts, absent a clearly expressed [legislative] intention to the contrary, to regard each as effective."Morton,417 U.S. at 551, 94 S.Ct. at 2483(emphasis added).Under our case law, therefore, the burden lies on Noble and the District to show that the two statutes — § 24-431(a)and§ 24-206(a) — " 'are irreconcilable, clearly repugnant as to vital matters to which they relate, and so inconsistent that the two cannot have concurrent operation.' "Speyer,588 A.2d at 1165(quotingCedarbrook Realty, Inc., v. Nahill,484 Pa. 441, 399 A.2d 374, 383(1979)).

In order to discern whether there is an "affirmative showing of an intention to repeal" or some other basis for finding an "irreconcilable" conflict that dictates an implied repeal, Morton,417 U.S. at 549, 94 S.Ct. at 2482, we look first, of course, at the "plain language" or "plain meaning" of the combined statut...