### The Honorable Edward L. Filippine, United States Distric t 1 

### Judge for the Eastern District of Missouri. ___________ No. 95-2161

___________ Steven Gregory Billis, * * Appellant, * * Appeal from the United States v. * District Court for the * Eastern District of Missouri. United States of America, * * [PUBLISHED] Appellee. *

___________ Submitted: April 15, 1996 Filed: May 3, 1996

___________ Before BOWMAN, WOLLMAN, and HANSEN, Circuit Judges.

___________ PER CURIAM.

Steven Gregory Billis appeals from the order of the District Court 1 denying his 28 U.S.C. § 2255 (1994) motion to vacate, set aside, or correc t his sentence. We affirm.

In 1986, Billis pleaded guilty to two counts of distributing co caine, in viol ation of 21 U.S.C. § 841(a)(1) (1982). He was sentenced to fou r months of imprisonment followed by a five-year term of special parole on eachcount; the sentences were to run concurrently. In 1988, the United Stat es 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, th e Commission again revoked Billis's special parole; this time, the Commissio n ordered that Billis serve twelve months of imprisonment,

### Section 841(c) was repealed, but remained applicable t o 2 

### offenses committed prior to No vember 1, 1987, for a period of five years from that date. See Comprehensive Crime Control Act o f 1984, Pub. L. No. 98-473, § 224(a)(6), 98 Stat. 1976, 2030, as amende d by , Narcotics Penalties and Enforcement Act of 1986, Pub. L. No

. 99 -570, § 1005(a)(2), 100 Stat. 3207-2, 3207-6 (repealin g § 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 o f repeal); Criminal Law and Procedure Technical Amendment s Act of 1986, Pub. L. No. 99-646, § 35, 100 Stat. 3592, 359 9 (technical amendment); and Sentencing Act of 1987, Pub. L. N o. 100- 182, § 2, 101 Stat. 1266 (technical amendment).
-2- and denie d him credit for street time. In 1992, the Commission revoke d Billis's s pecial parole for a third time, ordering that he serve fou r months of imprisonment, and again denying him cr edit for street time. The Commiss ion also withdrew its prior grant of street-time credit, as 2 1 U.S.C. § 841(c) (Supp . IV 1986) precluded the Commission from giving such credit. In October 1993, Billis was arrested for possession o f marijuana,

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

In Oct ober 1993, while he was in custody, Billis filed this § 225 5 motion, asserting that the Commission lacked jurisdiction over him. The District C ourt construed Billis's motion as a 28 U.S.C. § 2241 (1988 ) petition that Billis was requesting to amend to name the prope r respondents, and denied the request to amend as futile, dismissing th e claim without prejudice.

On appeal, Billis argues that the Commission was not statutoril y aut horized to revoke his special parole term, and that even if th e Commission had the po wer to do so, it could not impose additional special parole. He also argues that the Commission violated his due process right s by withdrawing his street-time credit, and that the Commission was estoppe d from doing so.

We c onclude the District Court correctly determined that th e Commission was authorized to revoke Billis's special parole. A

### Section 4203(a)(1) was repealed, but remains applicable t o 3 

### offenses committed prior to November 1, 1987, for a period of ten years from that date. See Comprehensive Crime Control Act o f 1984, Pub. L. No. 98-473, § 218(a)(5), 98 Stat. 1976, 2027 (repealin g § 4203(a)(1)); see also id. § 235, as amended by , SentencingReform Amendm ents Act of 1985, Pub. L. No. 99-217, § 4, 99 Stat. 172 8 (s etting effective date of repeal); Criminal Law and Procedur e Techn ical Amendments Act of 1986, Pub. L. No. 99-646, § 35, 10 0 Stat
. 3592, 3599 (technical amendment); Sentencing Act of 1987 , Pub. L. No. 100-182, § 2, 101 Stat. 1266 (technical amendmen t); and Federal Courts Study Committee Implementation Act of 1990, Pub. L. No. 101-650, § 316, 104 Stat. 5104, 5115 (extending time repealed st atute remains applicable to offenses committed prior t o November 1, 1987).
-3- spe cial parole term may be revoked if its terms and conditions ar e violated. See 21 U.S.C. § 841(c). The Commission is empowered t o promulgate regulation s to carry out national parole policy, see 18 U.S.C. § 4203(a )(1) (1982), and the Commission's regulations provide for th e 3 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 , 5 4 F.3d 820, 823 (D.C. Cir. 1995); Escamilla v. Warden , 2 F.3d 344, 346-4 7 (10th Cir. 1993); Cortinas v. United States Paro le Comm'n , 938 F.2d 43, 47 (5th Cir. 1991) (per curiam).

We c onclude the District Court also correctly determined th e Commis sion could impose a subsequent term of special parole afte r
revo cation, although we note there is a split of authority among th e 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 th e original term of imprisonment by the period of the special parole term, th e Commission also is permitted under § 841(c) to r equire the revoked parolee to serve only part of the mandatory term of imprisonment.

### Congress has amended § 3583 to permit explicitly th e 4 

### impo sition of a subsequent term of supervised release afte r revocation of a term of supervised release. See 18 U.S.C

. § 3583(h) (1994).
-4- See id. The court noted further that when the C ommission orders a parolee to be incarcerated for less that the full mandat ory term, the Commission's regulations provide for the parolee's placement back on special parole for the balance of the ma ndatory term. See id. (citing 28 C.F.R. §§ 2.52(b), 2.57(c)).

The Fif th and Seventh Circuits, however, have concluded th e Commission may not im pose a subsequent term of special parole, relying in substantial part on t he reasoning of their holdings that, under 18 U.S.C. § 35 83(e) (1988 & Supp. V 1993) as originally enacted, courts lacke d author ityto impose a subsequent term of supervised release afte r
revoc ation of a term of supervised release. See Evans v. United State s 4 Parole Com m'n , 78 F.3d 262, 264-65 (7th Cir. 1996) (relying on Unite d 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 W illiams 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 court s had aut hority 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 violate d his due process right s by withdrawing his street-time credit, or that the Commission was estopped from doing so. See

### Sections 4251-55 were repealed, but remained applicable t o 5 

### offenses committed prior to No vember 1, 1987, for a period of five years from that date. See Comprehensive Crime Control Act o f 1984, Pub. L. No. 98-473, § 218(a)(6), 98 Stat. 1976, 2027 (repealin g §§ 4251-55); see also id. § 235, as amended by , Sentencing Reform Amendm ents Act of 1985, Pub. L. No. 99-217, § 4, 99 Stat. 172 8 (s etting effective date of repeal); Criminal Law and Procedur e Techn ical Amendments Act of 1986, Pub. L. No. 99-646, § 35, 10 0 Stat. 3592, 3599 (technical amendment); and Sentencing Act o f 1987, Pub. L. No. 100-182, § 2, 101 Stat. 1266 (technical amendment).
-5- McQuerryv. United States Parole Comm'n , 961 F.2d 842, 844-48 (9th Cir

. 1992).

We do n ot consider Billis's argument, raised for the first time o n appe al, that he should have been sentenced under the Narcotic Addic t Rehabilitation Act, 18 U.S.C. §§ 4251-55 (1982). See Thomas v. Unite d 5 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.