*District Judge of the District of Maryland, sitting by

designation.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

Nos. 93-4441

93-4910

93-4919

93-4932

93-4982

93-5032

 

ALFONSO PAURA,

EFREN RENTERIA,

ARMANDO ALBERTO SALAS,

ORALIA SUAREZ,

RICARDO ESPINOZA, and

ALGERDON OLICHAUSKAS,

Petitioners,

versus

UNITED STATES PAROLE COMMISSION,

Respondent.

 

Appeals from Determinations of the 

United States Parole Commission

 

( March 30, 1994 )

Before HIGGINBOTHAM and WIENER, Circuit Judges, and KAUFMAN,*

District Judge.

HIGGINBOTHAM, Circuit Judge:

American citizens arrested in Mexico and sentenced for

transporting marijuana bring this appeal. Petitioners were

sentenced in Mexico and transferred to the United States to serve

the remainder of their sentences pursuant to the Prisoner Transfer

Treaty between the United States and Mexico. Prisoner Transfer,

Nov. 25, 1976, U.S.-Mex., 28 U.S.T. 7299. After the transfers, the
2

United States Parole Commission determined a release date and a

period of supervised release for each petitioner based on sentences

American law would impose for analogous crimes. 18 U.S.C. §

4106A(b)(1)(A). For each petitioner, the combined period of

imprisonment and supervised release was less than the length of the

prison term imposed by Mexico.

The Parole Commission redetermined petitioners' release dates

and supervised release periods in accordance with this court's

decision in Cannon v. United States Dep't of Justice, 973 F.2d 1190

(5th Cir. 1992) [Cannon II], denying reh'g to 961 F.2d 82 (5th Cir.

1992) [Cannon I], cert. denied, 113 S. Ct. 2354 (1993). The

Commission advanced the release dates of the petitioners by fifteen

percent to correspond with good time credits under 18 U.S.C. §

3624(b). At the same time, the Commission extended the period of

supervised release for each petitioner to comply with Cannon II's

instruction that the combined period of imprisonment and supervised

release determined by the Commission must equal the sentence

imposed by the Mexican court. We vacate the Parole Commission's

decision to lengthen the supervised release periods of the

petitioners.

I.

Petitioners challenge the Commission's reliance on Cannon II

in extending their supervised release periods beyond the periods

prescribed for sentences imposed by United States district courts.

Each seeks restoration of the period of supervised release

initially established by the Commission. The Commission's
3

recalculation of the petitioners' release dates and the appropriate

treatment of foreign good time credits are not subjects of this

appeal.

II.

The Parole Commission's reliance on Cannon II was unjustified.

Statements about supervised release in that case are dicta. The

total of the 63 months imprisonment and 27 months supervised

release that Cannon received from the Parole Commission equalled

the 90 month prison sentence he received in Mexico. Cannon I, 961

F.2d at 84. Cannon II referred to the situation of an American who

received a foreign sentence far in excess of the American sentence

for a similar offense as a "theoretical horrible" that was not

before the court. 973 F.2d at 1127. The treatment of foreign good

time credits was the only issue before the Cannon panel and that

issue is not before this court. See Cannon I, 961 F.2d at 84.

The Commission, conceding that the language in Cannon II about

supervised release is dicta, contends that it is nevertheless

persuasive and this panel should follow it. We decline to do so.

The dicta is not consistent with earlier decisions by this court.

Prior to Cannon II, three Fifth Circuit opinions upheld combined

periods of incarceration and supervised release set by the

Commission which were shorter than the sentences imposed in Mexico.

Thorpe v. United States Parole Comm'n, 902 F.2d 291 (5th Cir.) (per

curiam) (total period one month shorter than Mexican sentence),

cert. denied, 498 U.S. 868 (1990); Malin v. United States Parole

Comm'n, No. 89-4761 (5th Cir. April 19, 1990), slip op. at 2 (per
4

curiam) (same); Molano-Garza v. United States Parole Comm'n, 965

F.2d 20 (5th Cir. 1992), cert. denied, 113 S. Ct. 1009 (1993)

(total period nine months shorter than Mexican sentence). Despite

these precedents, Cannon II held that the combined period of

imprisonment and supervised release must equal the foreign

sentence. 973 F.2d at 1195. This statement is not consistent with

the earlier cases. Lara v. United States Parole Comm'n, 990 F.2d

839, 840 (5th Cir. 1993).

Cannon II's grounds for distinguishing the earlier cases are

not persuasive. Cannon II explained that there was no challenge in

Thorpe and Malin to the "commission's legal authority to deviate

from the total sentence imposed by the Mexican court cases." 973

F.2d at 1195. That characterization distinguishes Malin, in which

the appellant attacked only procedural aspects of the Commission's

determination. Malin slip op. at 2-3. But it does not distinguish

the challenge in Thorpe to the Commission's authority to impose an

American sentence longer than his Mexican sentence. See 965 F.2d

at 24. Cannon II made no reference to Molano-Garza.

The first of conflicting panel decisions is to be followed.

Johnson v. Moral, 843 F.2d 846, 847 (5th Cir. 1988) (stating that

"[n]o rule is more firmly settled in our Circuit"), on reh'g en

banc, 876 F.2d 477 (1989). We therefore follow the interpretation

of the treaty in pre-Cannon II opinions. That interpretation is

that "[t]he combined periods of imprisonment and supervised release

that result from the Commission's determination may not exceed the
5

sentence imposed by the foreign court." Molano-Garza, 965 F.2d at

22. As that interpretation does not require that the periods of

imprisonment and supervised release equal the length of the foreign

sentence, the Commission erred in deciding that it had to readjust

the petitioners' supervised release periods.

Petitioners' sentences are VACATED and REMANDED for

redetermination.