FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 07-30467 Plaintiff-Appellee,

D.C. No.

v.  CR-07-00432-MO-1

FRANK TSUI,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the District of Oregon

Michael W. Mosman, District Judge, Presiding

Submitted June 2, 2008

Seattle, Washington*

Filed June 25, 2008

Before: Warren J. Ferguson, Consuelo M. Callahan and

Otis D. Wright, II,** District Judge.

Opinion by Judge Callahan

*The panel unanimously finds this case suitable for decision without

oral argument. See Fed. R. App. P. 34(a)(2). 

**The Honorable Otis D. Wright, II, United States District Judge for the

Central District of California, sitting by designation. 

7445
COUNSEL

Sean K. Kennedy, Federal Public Defender, and Brianna J.

Fuller, Deputy Federal Public Defender, Los Angeles, California, for the petitioner-appellant. 

Rockne Chickinell, General Counsel, U.S. Parole Commission, and Helen H. Krapels, Assistant General Counsel,

Chevy Chase, Maryland, for the respondent-apppellee. 

UNITED STATES v. TSUI 7447
OPINION

CALLAHAN, Circuit Judge: 

Frank Tsui asserts that the United States Parole Commission improperly ruled that his supervised release on his South

Korean conviction and sentence would continue through the

expiration of his 60-month sentence, to December 8, 2008.

Because the Parole Commission’s ruling is not inconsistent

with any plain language in the relevant treaty and statute, and

is consistent with its regulation, we defer to the Parole Commission and affirm its determination of Tsui’s sentence.

A. Background

Frank Tsui, a naturalized U.S. citizen, was arrested on

December 4, 2003, in Los Angeles and extradited to South

Korea. On September 24, 2004, Tsui was convicted by a

South Korean court of conspiracy to traffic in narcotics, sentenced to five years of imprisonment with labor, and imprisoned in the Daejon Prison in South Korea. 

In December 2005, the United States approved a request by

Tsui to be transferred to the United States to serve the balance

of his sentence. South Korea approved Tsui’s request in

November 2006, and Tsui eventually arrived in Los Angeles

on April 18, 2007, and was detained. 

South Korea and the United States are parties to the Council of Europe Convention on the Transfer of Sentenced Persons (“Treaty”), 35 U.S.T. 2867, T.I.A.S. No. 10824 (July 1,

1985). The Treaty provides that a country that receives a

transferred prisoner may continue to enforce the foreign sentence. Article 10 of the Treaty states that “[i]n the case of continued enforcement, the administering State shall be bound by

the legal nature and duration of the sentence as determined by

the sentencing State.” The United States has elected to continue to enforce Tsui’s original sentence. 

7448 UNITED STATES v. TSUI
The United States Probation Office for the Central District

of California prepared a Treaty Transfer Report. The report

found that the South Korean offense of “conspiracy to traffic

narcotics” was most similar to the federal offense of “conspiracy to possess with intent to distribute a controlled substance,” 21 U.S.C. § 841. It further calculated a guideline

range for Tsui of 87 to 108 months, but noted that “the combined period of imprisonment and supervised release cannot

exceed 60 months, the length of the foreign sentence.” 

Tsui filed objections to the report urging that he be released

immediately so that the Probation Office could have a substantial period of community monitoring. He noted that if the

Parole Commission sentenced him to serve the entire five

years of his sentence, the Parole Commission would be without authority to impose any term of supervised release. Tsui

objected that the Parole Commission could not increase his

“sentence by subtracting from the full-term prison sentence it

imposed the good conduct time he will likely receive from the

Bureau of Prisons, and then add it back to his sentence as

supervised release time.” 

On October 19, 2007, the Parole Commission issued a

Transfer Treaty Determination (“TTD”). The Commission

first found that Tsui’s total offense level was 29, his criminal

history category was I, and the resulting guideline range was

87 to 108 months. The TTD then set a release date “after service of 52 months,” noting that foreign labor credits and good

conduct time, if any, would be deducted from this release date

under Bureau of Prison procedures.1 The TTD also provided

that Tsui was “subject to a maximum period of supervised

1The TTD explained that the release date departed from the applicable

guideline range “because 1) the combined period of imprisonment and

supervised release cannot exceed the foreign 60 month sentence. A departure will allow for a period of supervision to assist your transition from

incarceration. 2) You endured extremely harsh conditions in the foreign

prison.” 

UNITED STATES v. TSUI 7449
release of 3 years” but then modified that provision by providing:

The Commission orders that transferee, immediately

upon release from imprisonment, begin serving a 36-

month period of supervised release, or until the fullterm date of transferee’s foreign sentence [currently

calculated to be 12/28/2008], whichever is earlier. If

the full-term date of transferee’s foreign sentence

occurs before completion of the period of supervised

release the Commission has imposed, transferee’s

period of supervised release shall end on the date

transferee’s foreign sentence expires. 

On October 23, 2007, Tsui was released from custody and

began serving his supervised release. On November 27, 2007,

he filed a timely petition for review by this court pursuant to

18 U.S.C. § 4106A(b)(2)(A). 

B. Standard of Review

In Ajala v. U.S. Parole Commission, 997 F.2d 651, 653 (9th

Cir. 1993), we recognized that 18 U.S.C. § 4106A(b)(2)(B)

provides that the court “shall decide and dispose of the appeal

in accordance with section 3742 of this title as though the

determination appealed had been a sentence imposed by a

United States district court.” In Kleeman v. U.S. Parole Commission, 125 F.3d 725, 730 (9th Cir. 1997), we explained that:

Our appellate review of the transfer determination is

the functional equivalent of our review of a district

court’s sentencing decision. 18 U.S.C.

§ 4106A(b)(2)(A); Trevino-Casares v. United States

Parole Comm’n, 992 F.2d 1068, 1070 (10th Cir.

1993). Thus, we review the Commission’s interpretations of law (including foreign law) de novo, see,

e.g., Brady v. Brown, 51 F.3d 810, 816 (9th Cir.

1995), and its factual findings for clear error. See,

7450 UNITED STATES v. TSUI
e.g., United States v. Buenrostro-Torres, 24 F.3d

1173, 1174 (9th Cir. 1994). 

C. Tsui’s Contentions

Tsui raises a single issue on appeal: he argues that his

supervised release should end in June 2008, rather than in

December 2008. Tsui reasons as follows: (a) pursuant to 18

U.S.C. § 4106A(b)(1)(C) the combined periods of imprisonment and supervised release may not exceed the 60 months

imposed by the Korean court; and (b) because the Parole

Commission imposed a period of imprisonment of 52 months,

the period of supervised release cannot be greater than 8

months. In support of his approach, Tsui argues that the

Bureau of Prisons, not the Parole Commission is charged with

determining good time credits, citing Ajala, 997 F.2d at 655-

56. He also argues that the Parole Commission must establish

“a known period of supervised release” and may not set forth

“an end-date for supervision” because the Parole Commission

“is not in a position to determine the effect of good time credit

on the sentence.” 

Tsui further argues that the Parole Commission’s regulation, 28 C.F.R. § 2.68(a)(5), which he admits “purports to

authorize exactly what the Parole Commission did,” is not

entitled to deference under Chevron U.S.A., Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837 (1984),

because the regulation conflicts with the language of the statute.2

2

28 C.F.R. § 2.68(a)(5) reads: 

The release date that is determined by the Commission under 18

U.S.C. 4106A(b)(1)(A) is a prison release determination and does

not represent the imposition of a new sentence for the transferee.

However, the release date shall be treated by the Bureau of Prisons as if it were the full term date of a sentence for the purpose

of establishing a release date pursuant to 18 U.S.C. 4105(c)(1).

The Bureau of Prisons release date shall supersede the release

date established by the Parole Commission under 18 U.S.C.

UNITED STATES v. TSUI 7451
In particular, Tsui asserts that the statute “ ‘contravenes the

structure and language of the statute as a whole,’ Nat’l R.R.

Passenger Corp. v. Boston & Maine Corp., 503 U.S. 407, 417

(1992), because it imports calculation conducted under 18

U.S.C. § 4105 into the calculation conducted under section

4106A.” Tsui contends that “the period of imprisonment and

the period of supervised release imposed by the Parole Commission should be used to determine whether the foreign sentence has been exceeded.”

D. Analysis

[1] Tsui’s attempt to terminate his supervised release six

months early is not persuasive. Our review starts with the language of the Treaty3

 and the statute.4 Although the Parole

4106A and shall be the date upon which the transferee’s period

of supervised release commences. If the Commission has ordered

“continue to expiration,” the 4106A release date is the same as

the full term date of the foreign sentence. It is the Commission’s

interpretation of 18 U.S.C. 4105(c)(1) that the deduction of service credits in either case does not operate to reduce the foreign

sentence or otherwise limit the Parole Commission’s authority to

establish a period of supervised release extending from the date

of actual release from prison to the full term date of the foreign

sentence. 

3Article 10 is entitled “Continued enforcement” and reads: 

1. In the case of continued enforcement, the administering State

shall be bound by the legal nature and duration of the sentence

as determined by the sentencing State. 

2. If, however, this sentence is by its nature or duration incompatible with the law of the administering State, or its law so requires,

that State may, by a court or administrative order, adapt the sanction to the punishment or measure prescribed by its own law for

a similar offense. As to its nature, the punishment or measure

shall, as far as possible, correspond with that imposed by the sentence to be enforced. It shall not aggravate, by its nature or duration, the sanction imposed in the sentencing State, nor exceed the

maximum prescribed by the law of the administering State. 

7452 UNITED STATES v. TSUI
Commission could have adopted Tsui’s perspective, and it

appears that at one time it did,5 the Parole Commission was

35 U.S.T. 2867, Article 10. 

4

18 U.S.C. § 4106A reads, in relevant part: 

Transfer of offenders on parole; parole of offenders transferred 

(a) Upon the receipt of an offender who is on parole from the

authorities of a foreign country, the Attorney General shall assign

the offender to the United States Parole Commission for supervision. 

(b)(1)(A) The United States Parole Commission shall, without

unnecessary delay, determine a release date and a period and conditions of supervised release for an offender transferred to the

United States to serve a sentence of imprisonment, as though the

offender were convicted in a United States district court of a similar offense. 

(B) In making such determination, the United States Parole

Commission shall consider— 

(i) any recommendation of the United States Probation

Service, including any recommendation as to the applicable guideline range; and 

(ii) any documents provided by the transferring country;

relating to that offender. 

(C) The combined periods of imprisonment and supervised

release that result from such determination shall not exceed

the term of imprisonment imposed by the foreign court on

that offender. 

(D) The duties conferred on a United States probation officer

with respect to a defendant by section 3552 of this title shall,

with respect to an offender so transferred, be carried out by

the United States Probation Service. 

5

See, e.g., Ajala, 997 F.3d at 653 (Parole Commission imposed 51

months imprisonment and 21 months supervised release on a 72-month

English sentence); Trevino-Casares, 992 F.2d at 1069 (Parole Commission imposed 71 months imprisonment and 37 months supervised release

on 108-month Mexican sentence); and Asare v. U.S. Parole Comm’n, 2

F.3d 540, 543 (4th Cir. 1993) (Parole Commission imposed 60 months

imprisonment and 12 months supervised release on a 72-month English

sentence). 

UNITED STATES v. TSUI 7453
not compelled to do so. The language in the Treaty and

§ 4106A does not clearly support Tsui’s position. The Treaty

states that the sentence “shall not be aggravated, by its nature

or duration.” 35 U.S.T. 2867, Art. 10 (2). The treaty does not

appear to distinguish between imprisonment and supervised

release. The statute, § 4106A(b)(1)(C), simply provides that

“the combined periods of imprisonment and supervised

release that result from such determination shall not exceed

the term of imprisonment imposed by the foreign court on that

offender.” We do not see anything in the Treaty or the statute

that compels the Parole Commission to apportion a transferee’s remaining sentence between imprisonment and supervised release. Certainly, we do not see anything in the Treaty

or the statute that compels the Parole Commission to calculate

a transferee’s sentence so that the period of imprisonment (not

counting any good time credit) and the period of supervised

release equal the remaining duration of the original sentence.

[2] Instead, we read § 4106A(b)(1) as delegating to the

Parole Commission the responsibility for determining a transferee’s sentence consistent with the requirement that “the

combined periods of imprisonment and supervised release

that result from such determination shall not exceed the term

of imprisonment imposed by the foreign court on that offender.” 18 U.S.C. § 4106A(b)(1)(C). Because responsibility for

determining the sentence has been delegated to the Parole

Commission and the language of the Treaty and statute does

not direct the Parole Commission on how it is to calculate the

sentence, its perspective is entitled to deference. Chevron, 467

U.S. at 843-44 (“if the statute is silent or ambiguous with

respect to the specific issue, the question for the court is

whether the agency’s answer is based on a permissible construction of the statute,” and in reviewing the agency’s action

“a court may not substitute its own construction of a statutory

provision for a reasonable interpretation made by the administrator of an agency”).6

6Tsui’s only challenge to deference under Chevron is that the regulation

is inconsistent with the statute. 

7454 UNITED STATES v. TSUI
[3] The Parole Commission is the agency charged with

implementing the statute. See Bishop v. Reno, 210 F.3d 1295,

1302 n.11 (11th Cir. 2000). Its regulation, 28 C.F.R.

§ 268(a)(5), specifically states “[i]t is the Commission’s interpretation of 18 U.S.C. § 4105(c)(1) that the deduction of service credits in either case does not operate to reduce the

foreign sentence or otherwise limit the Parole Commission’s

authority to establish a period of supervised release extending

from the date of actual release from prison to the full term

date of the foreign sentence.” (emphasis added). We are

required to defer to the Parole Commission unless its

approach is “arbitrary, capricious, or manifestly contrary to

the statute.” Chevron, 467 U.S. at 843-44. 

[4] The regulation is not arbitrary, capricious, or manifestly

contrary to the statute. It is consistent with the purposes of the

Treaty and the statute because it prevents a transferred prisoner’s sentence from being longer than his original sentence and

allows the prisoner the benefit of an earlier release from

imprisonment, but also ensures that the sentence is not shorter

in duration than the original sentence. It does not deny a transferee the benefit of good time credit, but at the same time

does not allow good time credit to reduce “the duration of the

sentence as determined by the sentencing State.” 35 U.S.T.

2867, Art. 10(1). Furthermore, the Parole Commission’s position makes sure that the remaining sentence is not greater than

the original sentence by providing that where the period of

supervised release would otherwise exceed the duration of the

original sentence, supervised release terminates when the full

term of the original sentence is completed. 

Although the Parole Commission appears to have changed

its approach, its current position is not contrary to our opinion

in Ajala, 997 F.2d at 657. In Ajala, the Parole Commission

had “ordered that Ajala serve 51 months imprisonment and 21

months supervised release, which equaled the 72 months sentence imposed by the English court.” Id. at 653. On appeal,

Ajala contended that the Parole Commission had failed to

UNITED STATES v. TSUI 7455
take into consideration the good time credit she had earned in

a British prison. Id. at 654. We held that the calculation of

credit was committed to the Bureau of Prisons and was not

part of the Parole Commission’s § 4106A determination, and

accordingly was not within the court’s jurisdiction when

reviewing the Parole Commission’s decision. Id. at 655-56. 

[5] Our recognition in Ajala of the separate responsibilities

of the Parole Commission and the Bureau of Prisons implies

that the relative periods of time for incarceration and supervised release are not critical to the calculation of a sentence

under § 4106A(b)(1)(A). If the Parole Commission had

directed that Tsui be incarcerated for the full 60 months, he

would have no claim against the Parole Commission, but

arguably could challenge the Bureau of Prisons if it did not

honor any good time credit he claimed to have earned.7 Furthermore, Ajala suggests that whether a transferred prisoner

had earned good time credit while serving his sentence in a

foreign prison is a question for the Bureau of Prisons, not the

Parole Commission. Id. at 656. Accordingly, nothing in Ajala

prohibits the Parole Commission from imposing a period of

supervised release that lasts as long as the transferred prisoner’s foreign sentence. 

[6] Finally, Tsui’s argument that the Parole Commission

must establish a “known period of supervised release” rather

than “an end date for supervision,” does not support a grant

of any relief. First, the Parole Commission did set a “known

period of supervised release” when it imposed a three-year

period of supervised release. It then followed the restraints

established by the Treaty and the statute by ordering that, in

any event, the period of supervised release would conclude on

December 28, 2008. Second, there is nothing in the Treaty or

the statute that compels the approach urged by Tsui, and,

7Title 18 U.S.C. § 4105(c)(1) and (2) provides that a transferred

offender is entitled to credits for good time unless the country from which

the offender is transferred does not give credit for good time. 

7456 UNITED STATES v. TSUI
accordingly, we must defer to the Parole Commission’s position as set forth in 28 C.F.R. § 2.68(a)(5). Certainly, Tsui

would prefer that the Parole Commission had continued its

apparent practice of computing the terms of imprisonment and

supervised release to total the length of the foreign sentence,

but he has failed to show that such a practice is compelled by

the Treaty, the statute, or otherwise.8

E. Conclusion

The Treaty and the applicable statutes provide that Tsui’s

sentence in the United States not exceed his sentence in South

Korea. The Parole Commission’s determination that his

supervised release will run throughout his 60-month original

sentence conforms to that requirement. Tsui has shown that

the Parole Commission could have calculated his sentence in

such a way that his supervised release might have ended

sooner. However, Tsui has not shown that the Treaty or the

statutes compel such a result, or that 28 C.F.R. § 2.68(a)(5),

which authorizes the extension of supervised release to the

full term of the foreign sentence, is inconsistent with the statutes. Accordingly, even if the Parole Commission’s position

were not as reasonable as it appears to be, it would be entitled

to deference under Chevron. The Parole Commission’s determination of Tsui’s sentence is AFFIRMED.

8Tsui’s argument that the Parole Commission may not add back good

time credit as part of the period of supervised release mischaracterizes

what the Parole Commission did, and fails to recognize the great difference between imprisonment and supervised release. The Parole Commission did not “add back good time credit.” Rather it simply recognized that

the period of supervised release that it had otherwise ordered was limited

by the Treaty and the statute. Moreover, most prisoners would gladly

accept an extension of supervised release in return for release from confinement. 

UNITED STATES v. TSUI 7457