The Honorable Edward L. Filippine, United States District

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Judge for the Eastern District of Missouri. 

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No. 95-2161

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Steven Gregory Billis, *

 *

Appellant, *

 * Appeal from the United States

v. * District Court for the

 * Eastern District of Missouri.

United States of America, *

 * [PUBLISHED]

Appellee. *

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 Submitted: April 15, 1996

 Filed: May 3, 1996

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Before BOWMAN, WOLLMAN, and HANSEN, Circuit Judges.

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PER CURIAM.

Steven Gregory Billis appeals from the order of the District Court1

denying his 28 U.S.C. § 2255 (1994) motion to vacate, set aside, or correct

his sentence. We affirm.

In 1986, Billis pleaded guilty to two counts of distributing cocaine,

in violation of 21 U.S.C. § 841(a)(1) (1982). He was sentenced to four

months of imprisonment followed by a five-year term of special parole on

each count; the sentences were to run concurrently. In 1988, the United

States Parole Commission (Commission) revoked Billis's special parole,

ordering that he serve eight months of imprisonment, and that he receive

credit for time spent on special parole ("street time"). In 1989, the

Commission again revoked Billis's special parole; this time, the Commission

ordered that Billis serve twelve months of imprisonment,
 Section 841(c) was repealed, but remained applicable to

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offenses committed prior to November 1, 1987, for a period of five

years from that date. See Comprehensive Crime Control Act of 1984,

Pub. L. No. 98-473, § 224(a)(6), 98 Stat. 1976, 2030, as amended

by, Narcotics Penalties and Enforcement Act of 1986, Pub. L. No.

99-570, § 1005(a)(2), 100 Stat. 3207-2, 3207-6 (repealing

§ 841(c)); see also Comprehensive Crime Control Act of 1984, § 235,

98 Stat. at 2031, as amended by, Sentencing Reform Amendments Act

of 1985, Pub. L. No. 99-217, § 4, 99 Stat. 1728 (setting effective

date of repeal); Criminal Law and Procedure Technical Amendments

Act of 1986, Pub. L. No. 99-646, § 35, 100 Stat. 3592, 3599

(technical amendment); and Sentencing Act of 1987, Pub. L. No. 100-

182, § 2, 101 Stat. 1266 (technical amendment).

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and denied him credit for street time. In 1992, the Commission revoked

Billis's special parole for a third time, ordering that he serve four

months of imprisonment, and again denying him credit for street time. The

Commission also withdrew its prior grant of street-time credit, as 21

U.S.C. § 841(c) (Supp. IV 1986) precluded the Commission from giving such

credit. In October 1993, Billis was arrested for possession of marijuana, 2

and a parole-violation warrant was issued and executed upon him.

In October 1993, while he was in custody, Billis filed this § 2255

motion, asserting that the Commission lacked jurisdiction over him. The

District Court construed Billis's motion as a 28 U.S.C. § 2241 (1988)

petition that Billis was requesting to amend to name the proper

respondents, and denied the request to amend as futile, dismissing the

claim without prejudice.

On appeal, Billis argues that the Commission was not statutorily

authorized to revoke his special parole term, and that even if the

Commission had the power to do so, it could not impose additional special

parole. He also argues that the Commission violated his due process rights

by withdrawing his street-time credit, and that the Commission was estopped

from doing so.

We conclude the District Court correctly determined that the

Commission was authorized to revoke Billis's special parole. A
 Section 4203(a)(1) was repealed, but remains applicable to

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offenses committed prior to November 1, 1987, for a period of ten

years from that date. See Comprehensive Crime Control Act of 1984,

Pub. L. No. 98-473, § 218(a)(5), 98 Stat. 1976, 2027 (repealing

§ 4203(a)(1)); see also id. § 235, as amended by, Sentencing Reform

Amendments Act of 1985, Pub. L. No. 99-217, § 4, 99 Stat. 1728

(setting effective date of repeal); Criminal Law and Procedure

Technical Amendments Act of 1986, Pub. L. No. 99-646, § 35, 100

Stat. 3592, 3599 (technical amendment); Sentencing Act of 1987,

Pub. L. No. 100-182, § 2, 101 Stat. 1266 (technical amendment); and

Federal Courts Study Committee Implementation Act of 1990, Pub. L.

No. 101-650, § 316, 104 Stat. 5104, 5115 (extending time repealed

statute remains applicable to offenses committed prior to

November 1, 1987).

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special parole term may be revoked if its terms and conditions are

violated. See 21 U.S.C. § 841(c). The Commission is empowered to

promulgate regulations to carry out national parole policy, see 18 U.S.C.

§ 4203(a)(1) (1982), and the Commission's regulations provide for the

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revocation of special parole, and set forth procedures for doing so, see

28 C.F.R. §§ 2.52(b), 2.57(c) (1995). The three other circuit courts that

have addressed the issue have concluded that the Commission may properly

revoke special parole. See United States Parole Comm'n v. Williams, 54

F.3d 820, 823 (D.C. Cir. 1995); Escamilla v. Warden, 2 F.3d 344, 346-47

(10th Cir. 1993); Cortinas v. United States Parole Comm'n, 938 F.2d 43, 47

(5th Cir. 1991) (per curiam).

We conclude the District Court also correctly determined the

Commission could impose a subsequent term of special parole after

revocation, although we note there is a split of authority among the

circuit courts that have addressed the issue. The D.C. Circuit has held

that the Commission may impose a subsequent term of special parole. See

Williams, 54 F.3d at 823. The Williams Court noted that, although § 841(c)

requires the Commission, upon revocation of special parole, to increase the

original term of imprisonment by the period of the special parole term, the

Commission also is permitted under § 841(c) to require the revoked parolee

to serve only part of the mandatory term of imprisonment. 
 Congress has amended § 3583 to permit explicitly the

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imposition of a subsequent term of supervised release after

revocation of a term of supervised release. See 18 U.S.C.

§ 3583(h) (1994).

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See id. The court noted further that when the Commission orders a parolee

to be incarcerated for less that the full mandatory term, the Commission's

regulations provide for the parolee's placement back on special parole for

the balance of the mandatory term. See id. (citing 28 C.F.R. §§ 2.52(b),

2.57(c)). 

The Fifth and Seventh Circuits, however, have concluded the

Commission may not impose a subsequent term of special parole, relying in

substantial part on the reasoning of their holdings that, under 18 U.S.C.

§ 3583(e) (1988 & Supp. V 1993) as originally enacted, courts lacked

authority to impose a subsequent term of supervised release after

revocation of a term of supervised release. See Evans v. United States

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Parole Comm'n, 78 F.3d 262, 264-65 (7th Cir. 1996) (relying on United

States v. McGee, 981 F.2d 271, 274-75 (7th Cir. 1992)); Artuso v. Hall, 74

F.3d 68, 71 (5th Cir. 1996) (relying on United States v. Holmes, 954 F.2d

270, 272 (5th Cir. 1992)).

 

We agree with the reasoning of the Williams Court, as its holding is

most consistent with the language of § 841(c). Moreover, the reasoning of

the Evans and Artuso Courts conflicts with our holding that district courts

had authority under section 3583(e) as originally enacted to impose a

subsequent term of supervised release after revocation of an initial term

of supervised release. See United States v. Schrader, 973 F.2d 623, 625

(8th Cir. 1992).

We also conclude Billis has not shown that the Commission violated

his due process rights by withdrawing his street-time credit, or that the

Commission was estopped from doing so. See
 Sections 4251-55 were repealed, but remained applicable to

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offenses committed prior to November 1, 1987, for a period of five

years from that date. See Comprehensive Crime Control Act of 1984,

Pub. L. No. 98-473, § 218(a)(6), 98 Stat. 1976, 2027 (repealing

§§ 4251-55); see also id. § 235, as amended by, Sentencing Reform

Amendments Act of 1985, Pub. L. No. 99-217, § 4, 99 Stat. 1728

(setting effective date of repeal); Criminal Law and Procedure

Technical Amendments Act of 1986, Pub. L. No. 99-646, § 35, 100

Stat. 3592, 3599 (technical amendment); and Sentencing Act of 1987,

Pub. L. No. 100-182, § 2, 101 Stat. 1266 (technical amendment). 

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McQuerry v. United States Parole Comm'n, 961 F.2d 842, 844-48 (9th Cir.

1992). 

We do not consider Billis's argument, raised for the first time on

appeal, that he should have been sentenced under the Narcotic Addict

Rehabilitation Act, 18 U.S.C. §§ 4251-55 (1982). See Thomas v. United

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States, 27 F.3d 321, 325 (8th Cir. 1994). 

The judgment of the District Court is affirmed.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.