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. e du/thir dc ir c uit_1996/66UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 95-5226

KEVIN FOWLER,

Appellant

v.

UNITED STATES PAROLE COMMISSION,

Appellee.

APPEAL FROM THE UNITED STATES DISTRICT C OURT

FOR THE DISTRICT OF NEW JERSEY (D.C. Civ. No. 95-cv-00754)

Argued: February 8, 1996 Before: BECKER, ROTH and McKEE, Circuit Ju dges (Filed September 4, l996)

KENNETH M. TUCCILLO ( ARGUED)
22 South Holmdel Road Holmdel, NJ 07733

Counsel for Appellant
Kevin Fowler

FAITH S. HOCHBERG
United States Attorne y

JAMES B. CLARK, III ( ARGUED)
Assistant U.S. Attorn ey Clarkson S. Fisher Co urthouse 402 E. State Street, Room 502 Trenton, NJ 08608

MICHAEL A. STOVER (AR GUED)

General CounselUnited States Parole Commission

5550 Friendship Boule vard Chevy Chase, MD 20815

Counsel for Appellee
United States Parole Commission

OPINION OF THE COURT

McKEE, Circuit Judge

Defendant-appellant Kevin Fowler appeals from an order of the
United States District Court for the District of Ne w Jersey denying his petition for habeas corpus relief under 28 U.S. C.  2255. We
are asked to determine if the United States Parole Commission has the authority to impose a new term of special parol e under 21

U.S.C.  841(c) following revocation of his original specia l parole
term. We conclude that the Parole Commission does maintain jurisdiction over Fowler under  841(c), but that the nonincarcerative sanction that it can impose is not sp ecial parole, but traditional parole. To the extent that the Par ole Commission's regulations at 28 C.F.R.  2.52(b) and 2.57(c) allow a contrary result, we hold that they are inconsistent with  841(c). Accordingly, we will vacate the judgment of the dis trict court and remand for further proceedings consistent with this opinion.

I. The facts of this case are not in dispute. On April 21, 1986, defendant-appellant Kevin Fowler was sentenced by t he United States
District Court for the Southern District of New Yor k to a two-year term of imprisonment for distributing narcotics wit hin 1000 feet of a school. The two-year sentence was to be followed by a six-year term of special parole pursuant to 21 U.S.C.  841(c). Fowler was subsequently released from incarceration and began serving his special parole term on May 19, 1990. On April 23, 1992, the Parole Commission revok ed Fowler's special parole based upon his use of drugs, failure to report to his probation officer, and violation of a special d rug aftercare
condition. The Commission ordered that he receive no credit for time spent on special parole, and that he serve twe lve months prior to reparole. The Commission later rescinded this r equirement, and instead required service of an additional three mon ths because appellant had escaped from a halfway house. Fowler was once again released from incarcerat ion and placed on special parole on February 17, 1993. He was to remain under supervision until November 3, 1997. However, on No vember 16, 1993, the Commission again revoked Fowler's special parol e because ofcontinuing drug use, another violation of the drug aftercare

condition, and criminal possession of a controlled substance. The
Commission ordered that Fowler receive no credit fo r any of the time he had spent on special parole and that he be reparoled after serving thirty-two months in prison. The decision was affirmed by the National Appeals Board. On November 2, 1994, Fowler filed a petition f or a writ of habeas corpus in the District of New Jersey. He ar gued that the Parole Commission had no statutory authority under 21 U.S.C.  841(c) to impose a second or third term of special parole after it had revoked the initial term in April 1992. Appell ant's Brief at 4. On March 17, 1995, the district court ruled tha t the Commission retained jurisdiction over Fowler after its initial revocation of special parole, and denied Fowler's petition. This appeal

followed. We have jurisdiction pursuant to 28 U.S.C.  2255 and 1291. Our standard of review is de novo. See e.g., Unite d States v. Cleary, 46 F.3d 307, 309-10 (3d Cir. 1995) ("The de cision whether to grant or deny a habeas corpus petition is review ed de novo.").

II.
21 U.S.C.  841(c) provides: A special parole term . . . may be revoked if
its terms and conditions are violated. In such circumstances the original term of imprisonmen t shall be increased by the period of the specia l parole term and the resulting new term of imprisonment shall not be diminished by the ti me which was spent on special parole. A person w hose special parole term has been revoked may be required to serve all or part of the remainder of the new term of imprisonment. A special parol e term provided for in this section shall be in addition to, and not in lieu of, any other par ole provided for by law.

21 U.S.C.  841(c) (repealed). The Courts of Appeals that have interpreted th is statute have disagreed about its meaning. In Evans v. United St ates Parole Commission, 78 F.3d 262 (7th Cir. 1996) and Artuso v. Hall, 74 F.3d 68 (5th Cir. 1996), the Courts of Appeals for the S eventh and Fifth
Circuits concluded that the Parole Commission has n o authority to reimpose special parole after revoking a parolee's initial term. In United States Parole Commission v. Williams, 54 F.3d 820 (D.C. Cir. 1995) and Billis v. United States, 83 F.3d 209 (8th Cir. 1996), the Courts of Appeals for the District of Co lumbia and the Eighth Circuits reached the opposite conclusion. F or the reasons set forth below, we agree with, and are guided by t he reasoning of Evans. We need not reiterate at length why the ana lysis in Williams and its progeny is flawed. Rather, we fin d the analysis in Evans, and its criticism of Williams, to be pers uasive. See Evans, 78 F.3d at 265-66. In concluding that successive terms of special parole would be impermissible under  841(c), Evans and Artuso rely persuasively ona line of cases interpreting a similar provision go verning

supervised release, 18 U.S.C.  3583(e)(3). See Evans, 78 F.3d at 264; Artuso, 74 F.3d at 71. Subsection 3583(e)(3) authorized a court to "r evoke a term of supervised release, and require the person to serve in prison all or part of the term of supervised release . . . wit hout credit for time previously served on postrelease supervision." 18 U.S.C.  3583(e)(3) (1988 & Supp. IV). In United States v. Holmes, 954 F.2d 270, 272 (5th Cir. 1992), the Fifth Circuit re asoned that the
word "revoke" in  3583 meant to "cancel or rescind," and therefore provided courts with no authority to impose a secon d period of supervised release after revoking the first term. In United States v. Malesic, 18 F.3d 205, 206-207 (3d Cir. 1994), we agreed with the reasoning set forth in Holmes. In Malesic, this Co urt stated that "revoke generally means to . . . rescind." Malesic , 18 F.3d at 206 (citing, Holmes, 954 F.2d at 272). Once a term of supervised
release has been "revoked" under 18 U.S.C.  3583(e)(3), we concluded that an additional term could not be impo sed "given the conspicuous absence of a statutory provision clearl y permitting a
court to do so." Id. at 208. Several other Courts of Appeals similarly interpreted the language of section 3583( e)(3), and
reached the same conclusion as to its effect. See United States v. Koehler, 973 F.2d 132 (2d Cir. 1992); United States v. Cooper, 962 F.2d 339 (4th Cir. 1992); United States v. Truss, 4 F.3d 437 (6th Cir. 1993); United States v. McGee, 981 F.2d 271 (7 th Cir. 1992); United States v. Behnezhad, 907 F.2d 896 (9th Cir. 1990); United States v. Rockwell, 984 F.2d 1112 (10th Cir.), cert . denied __ U.S. __, 113 S.Ct. 2945, 124 L.Ed.2d 693 (1993); United States v. Tatum, 998 F.2d 893 (11th Cir. 1993); but see United State s v. O'Neil, 11 F.3d 292 (1st Cir. 1993); United States v. Schrader , 973 F.2d 623 (8th Cir. 1992). Although the Court of Appeals for the Ninth Ci rcuit did not explicitly rely on the word "revoke" in its analysi s of  3583(e)(3), the Behnezhad court employed essentiall y the same reasoning as Holmes and Malesic. The Ninth Circuit Court of Appeals reasoned as follows: The government argues that it would be logical

for a court to be able to revoke a term of supervised release, impose a term of incarcera tion and then impose another term of supervised rel ease. . . . However, Congress has enacted an unambig uous statute that does not provide courts with that option. We would exceed our authority were we to judicially rewrite that legislation.

Behnezhad, 907 F.2d at 899. We believe the languag e of 21 U.S.C.

 841(c) requires a similar result. In the instant dispute, both Fowler and the Pa role Commission assume that our inquiry is bipolar. That is to say , they suggest
that if 21 U.S.C.  841(c) does not authorize the imposition of a new term of special parole, the Commission loses ju risdiction over the parolee when the original term of special parol e is revoked. However, we do not believe that our analysis is so constrained. The interpretation of any statute obviously be gins with ananalysis of the text itself. Kelly v. Robinson, 479 U.S. 36, 43

(1986) ("The starting point in every case involving construction of a statute is the language itself."). Thus, when Fo wler's original term of special parole was revoked, the statute dic tated that the original term of imprisonment shall be increased by the period of the special parole term and the resulting new term of imprisonment shall not be diminished by the time which was spent on special parole. . . . A person whose special parole term has been revoked may be required to serve all or part of the remainder of the new term of imprisonment.

21 U.S.C.  841(c). Upon revocation, Congress has specificall y required a "new" term of imprisonment equal to the full term of special parole. However, after resentencing, Congr ess has expressly granted the Parole Commission authority t o release a special parole violator. The statute plainly state s that a violator such as Fowler "may be required to serve a ll or part of . . . the new term of imprisonment." Id. Consequent ly, if a sentencing court imposes a three year term of impri sonment, the Commission may require that only two be spent in pr ison. The Commission obviously does not lose control or juris diction over the offender after the two years served behind bars. In Williams, the D.C. Circuit reasoned that  841(c) "mandates a new prison term equal to the term of special paro le . . . the only open issue is whether the parolee must serve a ll of that term behind bars, or may serve the term through a combin ation of incarceration and special parole." Williams, 54 F. 3d at 824. As the Seventh Circuit observed in Evans, we believe t hat Williams advances a "false dichotomy." Evans, 78 F.3d at 26 5. Upon revocation,  841(c) clearly provides for the re-release of a special parole violator and permits him or her to s erve a sentence of imprisonment on the street. The only unresolved question, in our estimation, is the nature of that release. In answering that question, it is helpful to consider the development of parole and the differences between the parole that has been tr aditionally used as a sanction, and the special parole that is invol ved in this appeal. The first use of traditional parole in the Uni ted States came in 1876 with the opening of the New York State Refo rmatory for
Juveniles in Elmira. See Neil P. Cohen & James J. Gobert, The Law of Probation and Parole,  1.05 (1983 & Supp. 1993). The founders of Elmira adopted a system of indeterminate sentenc es which, as its final stage, provided for the conditional supervise d release of inmates. Id. Since that time, the practice of rel easing prisoners, on the condition that they abide by cert ain rules during the balance of their sentences, "has become an inte gral part of the penological system." Morrissey v. Brewer, 408 U.S. 471, 477 (1972). While on traditional parole, the "prisoner " is deemed to be continuing to serve the original sentence impose d by the trial court and remains in legal custody until that sente nce expires even though the offender is "at liberty" and not incarce rated behindbars. If the parolee violates a condition of relea se, he or she

may be returned to prison for the unexpired term of imprisonment. In such a case, the "unexpired" term would be the o riginal term of imprisonment reduced by time served and the time th e defendant spent on the street before the violation. The cred it for "street time" is the natural consequence of the concept tha t a parolee serves his or her time "on the street." See Evans, 78 F.3d at 263. Thus, traditional parole is merely "a conditional r elease from incarceration . . . prior to the expiration of the full term set by the sentencing court." Parry v. Rosemeyer, 64 F.3d 110, 116 n.10 (3d Cir. 1995) (citing Roberts v. United States, 49 1 F.2d 1236, 1238 (3d Cir. 1974)). It is a part of a sentence o f imprisonment, and has historically been a mechanism whereby one c ould be released yet continue to serve the sentence -- so long as th e parolee complied with those rules of society that were a co ndition of parole. See Morrissey, 408 U.S. at 477. In stark contrast, special parole is a statuto ry creation imposed in addition to any term of years. It is ap plied to offenders by a sentencing court only pursuant to a specific grant of authority from Congress. See Parry, 64 F.3d at 116-117; Roberts, 491 F.2d at 1237-1238. As the court noted in Evans:

Three things are 'special' about special parole: first, special parole follows the term of imprisonment, while regular parole ent ails release before the end of the term; secon d special parole was imposed and its length selected, by the district judge rather th an by the Parole Commission; third, when specia l parole is revoked, its full length become s a term of imprisonment. In other words 'str eet time' does not count toward completion of special parole . . . . This third differ ence is a consequence of 21 U.S.C. (1982 ed.)  841(c) . . . . 78 F.3d at 263. See also Bell v. United States, 52 1 F.2d 713, 715 (4th Cir. 1975) ("The mandatory special parole term imposed by the 1970 Act is unique. It is in addition to any other parole, remaining in effect after the original prison sente nce has been served and the period of regular parole has expired . . . . Since the statute prescribes no maximum special parole te rm, the additional prison sentence may be lengthy.")
Just as 18 U.S.C.  3583(e)(3) did not provide for the imposition of a post-revocation term of supervised release, section 841(c) does not provide for a new term of special p arole following revocation. Rather, the non-incarcerative custody a uthorized by  841(c) is part of the sentence of imprisonment mand ated upon the revocation of special parole; it is not in addition to it. Thus, it is traditional parole. Nowhere in  841(c) has Congress vested a district judge or the Parole Commission with the authority to reimpose a special parole term. The Parole Commission downplays this clear abs ence of statutory authorization by arguing that "it has alw ays been understood [under pre-Guidelines law] . . . that so mebody who hashad their special parole revoked, could be placed o n another term

of special parole." (Tr. at 21-22). In support of this proposition, the government directs this Court to l anguage in United States v. Gozlon-Peretz, 894 F.2d at 1402, 1 405 n.5 (3d Cir. 1990), aff'd, 498 U.S. 395, 111 S.Ct. 840, 112 L.Ed .2d 919 (1991) and Williams. In Gozlon-Peretz, we stated, in dict a, that "upon revocation of special parole, an individual may be re-paroled." Id. at 1405, n.5. Similarly, in Williams, the cour t referred to the common pre-Sentencing Guidelines understanding . . . that parole violator s could be reparoled pursuant to  841(c). This much followed from the established pre- Guidelines sentencing principle that 'par ole is available unless expressly precluded.' (quoting United States v. Mudd, 817 F.2d 840, 843 (D.C. Cir. 1987))

54 F.3d at 825. We agree. However, the issue is n ot the availability of parole under  841(c), but the nature of the parole that is specifically contemplated by that statute. Far from endorsing the reimposition of special parole, the
statements from Gozlon-Peretz and Williams confirm our present understanding, that the parole that is imposed afte r special parole is revoked can only be traditional parole. As we s tated above,  841(c) leaves no doubt that special parole violator s are eligible for some period of release on their new term of imp risonment. In the absence of statutory authority, however,  841(c) provides no basis for characterizing that period of release as special parole. To the contrary, because the statute allows violato rs to serve at least a portion of their time on the street, such r elease is identical to traditional parole. Consequently, des pite its asserted prevalence, any pre-guidelines approach co ndoning the post-revocation imposition of special parole, is wi thout foundation in the controlling statute. Although general accep tance of a practice must be considered in any reasoned analysi s, a practice bottomed upon an erroneous interpretation of the la w is not legitimized merely by repetition. The Parole Commission further argues that its regulations are entitled to deference, and that those regulations a uthorize a new term of special parole following revocation of the initial term.
28 C.F.R.  2.57(c) provides, in part: Should a parolee violate conditions of release during the Special Parole Term he will be subject to revo cation on the Special Parole Term . . . and subject to repar ole or mandatory release under the Special Parole Ter m.

28 C.F.R.  2.52(b) states:

If parole is revoked . . . the Commission shal l also determine . . . whether reparole is warranted or whether the prisoner should be continued for further r eview. The Parole Commission promulgated these regula tions pursuant to a specific grant of statutory authority. We are , of course,
mindful of the deference that is due the Parole Com mission'sinterpretation of  841(c) and the regulations it has promulgated

pursuant to 18 U.S.C.  4203. See Chevron v. Natural Resources Defense Council, 467 U.S. 837, 842-43 (1984). We o we no deference, however, to administrative interpretations or regul ations that are based upon an impermissible construction of the sta tute. Id.; see also, Sekula v. FDIC, 39 F.3d 448, 452 (3d Cir. 199 4). Indeed, such a regulation or interpretation is invalid. Section 841(c) is not so ambiguous as to allow the interpretation urged upon us by the Government. Se e BATF v. FLRA, 464 U.S. 89, 97 (1983) ("[Deference] cannot be allo wed to slip into a judicial inertia . . ."). No statutory authority exists for a second term of special parole after the initial ter m has been revoked. Rather, Congress has merely authorized a new term of imprisonment which can include noncustodial supervi sion. Therefore, early release from that term of incarcer ation is parole as that sanction has traditionally been used in cri minal law. Moreover, in merely authorizing "reparole", the Com mission's regulations are not to the contrary. Those regulat ions do not suggest that any new term of parole should be chara cterized as special parole rather than traditional parole. To the extent that the Parole Commission's regulations at 28 C.F.R.  2.52(b) and 2.57(c) are interpreted to authorize the reimpositi on of special parole, they are in conflict with  841(c). Where such a conflict exists "the regulations must, of course, give way." McComb v. Wambaugh, 934 F.2d 474, 481 (3d Cir. 1991). Finally, we note that Congress has amended the supervised release statute to grant sentencing courts explicit authority to impose post-revocation terms of supervised release. See 18 U.S.C.
 3583(h) (1994). The Parole Commission suggests th at  3583(h) must also reflect congressional intent with respect to the operation of special parole. However, we must pres ume that "a legislature says in a statute what it means and mea ns . . . what it says." Connecticut Nat'l Bank v. Germain, 503 U.S. 1146, 1149 (1992). Since section 841(c) provides no basis for reimposing special parole, we will not rely upon the amendment of  3583 to force a construction on section 841(c) that is cont rary to the plain language of the statute.

III. For the foregoing reasons, we will vacate the judgment of the
district court and remand the case to the district court with instructions to grant a conditional writ of habeas corpus. The
district court will then remand to the Parole Commi ssion for further proceedings consistent with this opinion. If the Parole Commission determines that Fowler's maximum period of supervision (with credit for any street time he may have earned following revocation of his term of special parole) has not e xpired, the Commission may determine if it wishes to impose any additional term of traditional parole. In the event that the Commi ssion determines that Fowler's maximum period of supervision has exp ired, or that it does not wish to impose any further traditional par ole, Fowler must be released from custody.