1996 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-4-1996

Fowler v. US Parole Comm

Precedential or Non-Precedential:

Docket 95-5226

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Recommended Citation

"Fowler v. US Parole Comm" (1996). 1996 Decisions. Paper 66.

http://digitalcommons.law.villanova.edu/thirdcircuit_1996/66
 UNITED 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 COURT 

 FOR THE DISTRICT OF NEW JERSEY 

 (D.C. Civ. No. 95-cv-00754) 

 

 

 Argued: February 8, 1996 

 Before: BECKER, ROTH and McKEE, Circuit Judges 

 (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 Attorney 

 JAMES B. CLARK, III (ARGUED) 

 Assistant U.S. Attorney 

 Clarkson S. Fisher Courthouse 

 402 E. State Street, Room 502 

 Trenton, NJ 08608 

 MICHAEL A. STOVER (ARGUED) 

 General Counsel 
 United States Parole Commission 

 5550 Friendship Boulevard 

 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 New 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 parole under 21 

U.S.C.  841(c) following revocation of his original special 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 special parole, 

but traditional parole. To the extent that the Parole 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 district 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 the United States 

District Court for the Southern District of New York to a two-year 

term of imprisonment for distributing narcotics within 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 revoked Fowler's 

special parole based upon his use of drugs, failure to report to 

his probation officer, and violation of a special drug aftercare 

condition. The Commission ordered that he receive no credit for 

time spent on special parole, and that he serve twelve months prior 

to reparole. The Commission later rescinded this requirement, and 

instead required service of an additional three months because 

appellant had escaped from a halfway house. 

 Fowler was once again released from incarceration and placed 

on special parole on February 17, 1993. He was to remain under 

supervision until November 3, 1997. However, on November 16, 1993, 

the Commission again revoked Fowler's special parole because of 
continuing drug use, another violation of the drug aftercare 

condition, and criminal possession of a controlled substance. The 

Commission ordered that Fowler receive no credit for 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 for a writ of 

habeas corpus in the District of New Jersey. He argued 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. Appellant's Brief at 

4. On March 17, 1995, the district court ruled that 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., United States v. 

Cleary, 46 F.3d 307, 309-10 (3d Cir. 1995) ("The decision whether 

to grant or deny a habeas corpus petition is reviewed 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 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. A special parole 

 term provided for in this section shall be in 

 addition to, and not in lieu of, any other parole 

 provided for by law. 

21 U.S.C.  841(c) (repealed). 

 The Courts of Appeals that have interpreted this statute have 

disagreed about its meaning. In Evans v. United States 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 Seventh and Fifth 

Circuits concluded that the Parole Commission has no 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 Columbia and the 

Eighth Circuits reached the opposite conclusion. For the reasons 

set forth below, we agree with, and are guided by the reasoning of 

Evans. We need not reiterate at length why the analysis in 

Williams and its progeny is flawed. Rather, we find the analysis 

in Evans, and its criticism of Williams, to be persuasive. 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 on 
a line of cases interpreting a similar provision governing 

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 "revoke a term of 

supervised release, and require the person to serve in prison all 

or part of the term of supervised release . . . without 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 reasoned that the 

word "revoke" in  3583 meant to "cancel or rescind," and therefore 

provided courts with no authority to impose a second 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 Court 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 imposed "given the 

conspicuous absence of a statutory provision clearly 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 (7th 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 States 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 Circuit did not 

explicitly rely on the word "revoke" in its analysis of 

3583(e)(3), the Behnezhad court employed essentially 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 incarceration 

 and then impose another term of supervised release. 

 . . . However, Congress has enacted an unambiguous 

 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 language of 21 U.S.C. 

 841(c) requires a similar result. 

 In the instant dispute, both Fowler and the Parole 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 jurisdiction over 

the parolee when the original term of special parole is revoked. 

However, we do not believe that our analysis is so constrained. 

 The interpretation of any statute obviously begins with an 
analysis 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 Fowler's original 

term of special parole was revoked, the statute dictated 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 specifically 

required a "new" term of imprisonment equal to the full term of 

special parole. However, after resentencing, Congress has 

expressly granted the Parole Commission authority to release a 

special parole violator. The statute plainly states that a 

violator such as Fowler "may be required to serve all or part of . 

. . the new term of imprisonment." Id. Consequently, if a 

sentencing court imposes a three year term of imprisonment, the 

Commission may require that only two be spent in prison. The 

Commission obviously does not lose control or jurisdiction 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 parole . . . the 

only open issue is whether the parolee must serve all of that term 

behind bars, or may serve the term through a combination of 

incarceration and special parole." Williams, 54 F.3d at 824. As 

the Seventh Circuit observed in Evans, we believe that Williams 

advances a "false dichotomy." Evans, 78 F.3d at 265. Upon 

revocation,  841(c) clearly provides for the re-release of a 

special parole violator and permits him or her to serve 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 traditionally used 

as a sanction, and the special parole that is involved in this 

appeal. 

 The first use of traditional parole in the United States came 

in 1876 with the opening of the New York State Reformatory 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 sentences which, as its 

final stage, provided for the conditional supervised release of 

inmates. Id. Since that time, the practice of releasing 

prisoners, on the condition that they abide by certain rules during 

the balance of their sentences, "has become an integral 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 imposed by the trial 

court and remains in legal custody until that sentence expires even 

though the offender is "at liberty" and not incarcerated behind 
bars. If the parolee violates a condition of release, he or she 

may be returned to prison for the unexpired term of imprisonment. 

In such a case, the "unexpired" term would be the original term of 

imprisonment reduced by time served and the time the defendant 

spent on the street before the violation. The credit for "street 

time" is the natural consequence of the concept that a parolee 

serves his or her time "on the street." See Evans, 78 F.3d at 263. 

Thus, traditional parole is merely "a conditional release 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, 491 F.2d 1236, 

1238 (3d Cir. 1974)). It is a part of a sentence of imprisonment, 

and has historically been a mechanism whereby one could be released 

yet continue to serve the sentence -- so long as the parolee 

complied with those rules of society that were a condition of 

parole. See Morrissey, 408 U.S. at 477. 

 In stark contrast, special parole is a statutory creation 

imposed in addition to any term of years. It is applied 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 entails 

 release before the end of the term; second 

 special parole was imposed and its length

 selected, by the district judge rather than by 

 the Parole Commission; third, when special 

 parole is revoked, its full length becomes a 

 term of imprisonment. In other words 'street 

 time' does not count toward completion of

 special parole . . . . This third difference 

 is a consequence of 21 U.S.C. (1982 ed.) 

 841(c) . . . . 

78 F.3d at 263. See also Bell v. United States, 521 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 sentence has been 

served and the period of regular parole has expired . . . . Since 

the statute prescribes no maximum special parole term, 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 parole following 

revocation. Rather, the non-incarcerative custody authorized by 

841(c) is part of the sentence of imprisonment mandated 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 absence of 

statutory authorization by arguing that "it has always been 

understood [under pre-Guidelines law] . . . that somebody who has 
had their special parole revoked, could be placed on another term 

of special parole." (Tr. at 21-22). In support of this 

proposition, the government directs this Court to language in 

United States v. Gozlon-Peretz, 894 F.2d at 1402, 1405 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 dicta, that "upon 

revocation of special parole, an individual may be re-paroled." 

Id. at 1405, n.5. Similarly, in Williams, the court referred to 

 the common pre-Sentencing Guidelines 

 understanding . . . that parole violators 

 could be reparoled pursuant to  841(c). This 

 much followed from the established pre- 

 Guidelines sentencing principle that 'parole 

 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 not 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 after special parole 

is revoked can only be traditional parole. As we stated above, 

841(c) leaves no doubt that special parole violators are eligible 

for some period of release on their new term of imprisonment. 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 violators to serve at 

least a portion of their time on the street, such release is 

identical to traditional parole. Consequently, despite its 

asserted prevalence, any pre-guidelines approach condoning the 

post-revocation imposition of special parole, is without foundation 

in the controlling statute. Although general acceptance of a 

practice must be considered in any reasoned analysis, a practice 

bottomed upon an erroneous interpretation of the law is not 

legitimized merely by repetition. 

 The Parole Commission further argues that its regulations are 

entitled to deference, and that those regulations authorize 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 revocation on the 

 Special Parole Term . . . and subject to reparole or 

 mandatory release under the Special Parole Term. 

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

 If parole is revoked . . . the Commission shall also 

 determine . . . whether reparole is warranted or whether 

 the prisoner should be continued for further review. 

 The Parole Commission promulgated these regulations pursuant 

to a specific grant of statutory authority. We are, of course, 

mindful of the deference that is due the Parole Commission's 
interpretation 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 owe no deference, 

however, to administrative interpretations or regulations that are 

based upon an impermissible construction of the statute. Id.; see 

also, Sekula v. FDIC, 39 F.3d 448, 452 (3d Cir. 1994). 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. See BATF v. FLRA, 

464 U.S. 89, 97 (1983) ("[Deference] cannot be allowed to slip into 

a judicial inertia . . ."). No statutory authority exists for a 

second term of special parole after the initial term has been 

revoked. Rather, Congress has merely authorized a new term of 

imprisonment which can include noncustodial supervision. 

Therefore, early release from that term of incarceration is parole 

as that sanction has traditionally been used in criminal law. 

Moreover, in merely authorizing "reparole", the Commission's 

regulations are not to the contrary. Those regulations do not 

suggest that any new term of parole should be characterized 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 reimposition 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 that  3583(h) 

must also reflect congressional intent with respect to the 

operation of special parole. However, we must presume that "a 

legislature says in a statute what it means and means . . . 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 contrary 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 Commission 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 expired, the 

Commission may determine if it wishes to impose any additional term 

of traditional parole. In the event that the Commission determines 

that Fowler's maximum period of supervision has expired, or that it 

does not wish to impose any further traditional parole, Fowler must 

be released from custody.